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Abascal v. United Property & Casualty Insurance Co.

United States District Court, S.D. Texas, Houston Division

July 18, 2019

FERNANDO ABASCAL, Plaintiff,
v.
UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Defendant.

          ORDER

          HONORABLE ALFRED H. BENNETT UNITED STATES DISTRICT JUDGE.

         Before the Court are Fernando Abascal's ("Plaintiff) Motion to Remand (Doc. #4) and United Property & Casualty Insurance Company's ("Defendant") Response (Doc. #5). After reviewing the parties' arguments and the applicable legal authority, the Court denies Plaintiffs Motion to Remand.

         I. Background

         Defendant insured Plaintiffs property against windstorm damages. Doc. #4 at 1. As a result of Hurricane Harvey, Plaintiffs property was damaged. Id. Consequently, Plaintiff filed an insurance claim with Defendant. Id. Defendant then retained an independent adjuster to assess Plaintiffs loss. Doc. #5 at 5. Based on the independent adjuster's findings, Defendant partially denied Plaintiffs claim. Id. Plaintiff then filed his Original Petition in state court. Doc. #4 at 1. Subsequently, Defendant removed the case to federal court. Doc. #1.

         Plaintiff now presents a Motion to Remand. Doc. #4. Plaintiff argues remand is proper because he stated in his Original Petition that he "will never ask, receive, or take a judgment for any amount exceeding $75, 000." Doc. #1, Ex. 3 at 11-12. Defendant argues that Plaintiffs statement does not qualify as a binding stipulation and that the Original Petition demonstrates on its face that the amount in controversy exceeds $75, 000. Doc. #1, Ex. 3 at 8.

         The questions before the Court are whether Defendant has established-by a preponderance of the evidence-that the amount in controversy exceeds the jurisdictional amount and whether Plaintiff has stipulated with legal certainty that the amount in controversy is below $75, 000.

         II. Legal Standard

         Federal courts have original jurisdiction over all civil actions where the amount in controversy exceeds $75, 000, exclusive of interest and costs. 28 U.S.C § 1332(a). When a case is removed to federal court, the "removing party bears the burden of establishing whether federal jurisdiction exists." Cantu v. State Farm Lloyds, No. 7:14-CV-456, 2016 WL 5372542, at *2 (S.D. Tex. Sept. 26, 2016). If the removing party can "show that the amount in controversy exceeds the jurisdictional amount," the party seeking remand "must then show with legal certainty that he will not be able to recover more than the jurisdictional amount." De Aguilar v. Boeing Co., 47 F.3d 1404, 1411 (5th Cir. 1995). "The Fifth Circuit has explained that 'once the district court's jurisdiction is established, subsequent events that reduce the amount in controversy to less than $75, 000 generally do not divest the court of diversity jurisdiction.'" Williams v. Companion Prop. & Cas. Ins. Co., No. 4T3-CV-733, 2013 WL 2338227, at *3 (S.D. Tex. May 27, 2013) (citing De Aguilar II, 47 F.3d at 1411-12).

         III. Analysis

         A. Jurisdictional Amount

         In the Original Petition, Plaintiff stated that damages would not exceed $75, 000. Doc. #1, Ex. 3 at 11-12. However, Texas law does not permit a plaintiff to plead that the damages sought will not exceed $75, 000. Chavez v. State Farm Lloyds, No. 7:15-CV-487, 2016 WL 641634, at *2 (S.D. Tex. Feb. 18, 2016) (discussing Tex.R.Civ.P. 47). Defendant argues that based on "the causes of actions alleged and the types of damages sought," it is apparent that Plaintiff seeks damages in excess of $75, 000. Doc. #5 at 8. In order to satisfy the burden of establishing that federal jurisdiction exists, the Defendant may show that it is "apparent from the face of the petition that the claims are likely to exceed $75, 000." Cantu, 2016 WL 5372542, at *2.

         Here, Plaintiff alleges that he "has incurred economic damages of $19, 303.41." Doc. #4, Ex 1 at 2. In addition to actual economic damages, Plaintiff is seeking prejudgment and post judgment interest, compensatory damages to include: economic hardship, losses due to nonpayment of the amount the insurer owed and damages for mental anguish and emotional distress. Doc. # 1, Ex. 3 at 10-11. Furthermore, Plaintiff is seeking treble damages, eighteen percent penalty interest, attorney's fees, court costs, "punitive and exemplary damages" for alleged violations of the Texas Insurance Code, fraud, and breach of good faith and fair dealings. Id.

         Similarly, in Chavez, a plaintiff pleaded an itemized damage model which sought damages for: mental anguish, eighteen percent penalty interest, attorney's fees, taxable court costs, exemplary damages, treble damages, and for pre-judgment interest. 2016 WL 641634, at *2. In Chavez, the court found that because the plaintiffs original petition sought treble damages and exemplary damages in addition to her other requested damages it was clear that the amount in controversy exceeded $75, 000. Id.

         Accordingly, looking on the face of Plaintiff s Original Petition-which seeks treble damages, penalty damages, and exemplary damages-it is clear that the amount in ...


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