United States District Court, S.D. Mississippi, Northern Division
JERRIE G. MAGRUDER PLAINTIFF
ELLIOT H. BRASHIER and ALLSTATE INSURANCE COMPANY DEFENDANTS
ORDER SEVERING CLAIMS AND GRANTING PARTIAL
this court is the motion of the Defendant, Allstate Insurance
Company (hereafter “Allstate”), “to sever
claims and partially remand to state court”
[doc. no. 5]. Allstate filed its motion on
August 28, 2018; so, the response to the motion was due on or
before September 11, 2018. The Plaintiff, Jerrie G. Magruder
(hereafter “Magruder”), has not filed a response
to the motion. Under Local Uniform Civil Rule
7(b)(3)(E), the Court may grant any non-dispositive
motion as unopposed if a party fails to respond to it. This
motion now before this court, therefore, may be granted as
“unopposed.” This court independently of this
consequence has determined that an additional reason exists
for the appropriate grant of the motion.
AND PROCEDURAL BACKGROUND
filed the instant lawsuit on August 3, 2018, in the Circuit
Court of Hinds County, Mississippi (“state
court”). An automobile accident forms the backdrop for
this action. Magruder, the Plaintiff, alleges that Defendant
Elliot H. Brashier (hereafter “Brashier”)
negligently caused the vehicle he was driving to collide with
the vehicle in which Magruder was riding as a passenger.
Brashier, says Magruder, is an underinsured motorist
tortfeasor, thus entitling Magruder to recover under his
Underinsured Motorist (“UM”) coverage with
Allstate. Allstate did not pay Magruder under his UM policy;
thus, Magruder brought this suit against Allstate alleging:
breach of contract; breach of the duty of good faith and fair
dealing; bad faith; and breach of fiduciary duty. Magruder
has settled with Brashier, the underinsured driver.
removed the suit from state court to this United States
District Court on August 27, 2018, asserting “diversity
of citizenship” as grounds for federal subject matter
jurisdiction. Title 28 U.S.C. §1332 establishes
federal court jurisdiction over cases and controversies
involving citizens of different states, where the amount in
controversy exceeds the sum of $75, 000.00 exclusive of costs
and interest. The Plaintiff, Magruder, is a Mississippi
resident. Allstate is incorporated in the state of Delaware
and maintains its principal place of business in Illinois,
and is, therefore, a citizen of a state different from that
of Plaintiff's. Defendant Brashier, like Plaintiff, is a
resident of Mississippi. This indenticality of Mississippi
citizenship enjoyed by Plaintiff and Brashier would destroy
complete diversity; but Allstate claims Brashier is not a
proper party to this litigation. Allstate reasons as follows:
[b]ecause these claims arise from distinct events, involving
different questions and proofs, fraudulent misjoinder and
also fraudulent joinder of claims apply.”
Memorandum in Support of Motion to Sever Claims and
Partially Remand [doc. no. 6 at p.1]. The Mississippi
Supreme Court said in Hegwood v. Williamson, 949
So.2d 728, 732 (Miss. 2007), that where a plaintiff injured
in a car wreck joins the negligence claims against the other
driver with the bad faith claims against the insurance
company in one suit, severance is required. See Hampton
v. State Farm Mut. Auto. Ins. Co., 2015 WL 11233043 at
*2 (S.D.Miss. Sept. 24, 2015) (negligence claims against the
driver must be severed from the bad faith claims against the
insurance company)(citing Hegwood v. Williamson, 949
So.2d 728, 732 (Miss. 2007)); Tolbert v. State Farm Mut.
Aut. Ins. Co., 2015 WL 3450524 at *3 (N.D. Miss. Mar,
29. 2015)(a claim of negligence against a defendant
automobile driver, and claims against an insurer for breach
of contract and bad faith involve distinct litigable events
that involve different factual and legal issues)(citing
Hegwood, 949 So.2d at 731); Cartwright v. State
Farm Mut. Auto Ins., Co., 2014 WL 6959045 at *7 (N.D.
Miss. Dec. 8, 2014) (negligence claims against a defendant
driver and breach of contract and bad faith claims against a
liability insurer, while arising out of the same accident,
“involve different factual issues and different legal
issues.”) (quoting Hegwood, 949 So.2d at 731).
then has a point. Plaintiff's claims against Brashier are
based on a vehicular accident, where, to win, Plaintiff must
establish negligence of the driver. On the other hand,
Plaintiff's claims against Allstate are based on a
contract dispute, a quarrel which questions and criticizes
Allstate's claim-handling process. Clearly, these claims
are distinct. They involve separate facts, have different
elements, and different legal standards. Although Allstate is
the Defendant in both cases and although the accident spawned
both claims, this court is persuaded that the two claims pose
such juridical separateness that they must be severed.
parties have requested a jury trial. One jury presiding over
both claims would be tasked with two sets of instructions on
the involved law and two sets of witnesses. These claims must
be severed. A severance would leave us with two distinct
lawsuits: Magruder versus Brashier and Magruder versus
Allstate. The parties in Magruder versus Brashier are not
diverse in citizenship; thus, this lawsuit, as argued by
Allstate, must be remanded to state court.
second lawsuit features diverse parties. No. party disputes
federal subject matter jurisdiction over this second lawsuit
under §1332, requires an amount in controversy exceeding
$75, 000.00 exclusive of interest and costs. Magruder does
not plead a specific amount of damages against Allstate in
his Complaint. The Complaint, however, includes claims for
bad faith and demands punitive damages. Complaint
[doc. no. 1-1 at ¶¶ 4.8 and 5.1]. Such claims are
generally held to exceed the federal jurisdictional amount.
See e.g., Paris v. Bevard, 2015 WL 3885501*1-2
(S.D.Miss. 2015) (“federal courts in Mississippi have
consistently held that a claim for an unspecified amount of
punitive damages is deemed to exceed the federal
jurisdictional minimum, ”). See also St. Paul
Reinsurance Co., Ltd. v. Greenberg, 134 F.3d at 1250,
1253-55(5th Cir. 1998) (plaintiff's punitive
damages are included in calculation of amount in
controversy); Marcel v. Pool Co., 5 F.3d 81, 84-85
(5th Cir. 1993); Myers v. Guardian Life Ins.
Co. of America, Inc., 5 F.Supp.2d at 423, 428-29 (N.D.
Miss. 1998); Allstate Ins. Co. v. Hilbun, 692
F.Supp. 698, 701 (S.D.Miss. 1988). Further, it is to be
noted, once again, that Magruder did not file a response to
the motion to sever and partially remand. Therefore,
Allstate's claim that the jurisdictional amount for
diversity is met is not refuted by Plaintiff.
the reasons stated herein, this court hereby
grants Allstate's motion [doc.
no. 5] to sever and partially remand.
Plaintiff's claims against Elliot H. Brashier are severed
and remanded to the Circuit Court of Hinds County,
Mississippi. The claims against Allstate will proceed in this
court. Those parties are directed to contact the assigned
Magistrate Judge within ten (10) days of this Order to obtain
a Scheduling Order.
ORDERED AND ADJUDGED.
 Local Uniform Civil Rule 7(b)(3)
states in pertinent ...