UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

KEY WEST DIVISION 

MACE MARINE INC., d/b/a Conch ) 

Republic Divers, ) 

) 

) NO. __________ 

) 

Plaintiff, ) 

) 

v. ) 

) 

TOKIO MARINE SPECIALTY INSURANCE ) 

COMPANY, ) 

Defendant. ) 

NOTICE OF REMOVAL 

Defendant Tokio Marine Specialty Insurance Company (“Tokio Marine”), by and 

through its undersigned attorneys, hereby removes to this Court the state court action described 

below. Tokio Marine has a right of removal and this Court has jurisdiction pursuant to 28 U.S.C. 

§ 1332, and 28 U.S.C. § 1441 because there is complete diversity as to the defendant Tokio 

Marine and the plaintiff Mace Marine Inc. (“Plaintiff”), and the amount in controversy exceeds 

the sum of $75,000, exclusive of interest and costs. 

1. On April 6, 2020, Plaintiff commenced this action by filing a complaint in the 

Circuit Court of the 16th Judicial Circuit in and for Monroe County, Florida, Case No. 20-CA000120-P. Pursuant to 28 U.S.C. § 1446(a), a copy of the Complaint and all other pleadings in 

the state court file are attached hereto as Exhibit 1. 

2. The Complaint alleges that Plaintiff was insured by Tokio Marine under a 

commercial lines insurance policy. (Ex. 1, Complaint, ⁋ 1.) Plaintiff asserts that Tokio Marine

breached that insurance contract when it denied Plaintiff’s claim for business income coverage 

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arising from losses, expenses and impacts to its business as a result of orders of the state of 

Florida and Monroe County in response to the COVID-19 outbreak which restricted travel, 

restricted public access to businesses deemed non-essential, and ordered persons in Florida to 

limit movements and interactions outside of their homes. (Ex. 1, Complaint, ⁋⁋ 4, 16, 18, 19, 32,

53.) 

3. Plaintiff asserts three causes of action: declaratory judgment; breach of contract; 

and statutory bad faith. Plaintiff seeks to recover compensatory damages in an unspecified 

amount exceeding $30,000, exclusive of interest, attorneys’ fees and costs. (See Ex. 1, 

Complaint, ¶ 8, and at 9, Prayer for Relief.) In addition, Plaintiff seeks punitive and extracontractual damages in connection with its statutory bad faith claim. (See Ex. 1, Complaint at ¶¶ 

61.) Plaintiff also seeks statutory attorney’s fees pursuant to Fla. Stat. §§ 624.155(4) and 

627.428. (See Ex. 1, Complaint, ¶ 61 and at 9, Prayer for Relief ¶ C.) 

4. The Complaint identifies Tokio Marine as the sole named defendant. 

5. Notice of the filing of this Notice of Removal has been provided to Plaintiff by 

service of a copy of this Notice of Removal upon its attorneys as required by 28 U.S.C. 

§ 1446(d). A true and correct copy of this Notice of Removal will be filed with the Clerk of the 

Circuit Court of the 16th Judicial Circuit in and for Monroe County, Florida in accordance with 

the provisions of 28 U.S.C. § 1446(d), along with a Notice of that filing. 

TIMELINESS OF REMOVAL 

6. Tokio Marine was served with the Complaint in this action on April 10, 2020. In 

accordance with 28 U.S.C. § 1446, this Notice of Removal is timely filed within thirty (30) days 

of Tokio Marine’s notice and receipt of Plaintiff’s Complaint. 

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JURISDICTION 

A. Complete Diversity Exists As To All Properly Joined Parties 

7. Plaintiff is a Florida corporation with its principal place of business in Florida. 

(See Ex. 1, Complaint ¶ 6.) 

8. Defendant Tokio Marine is a Delaware corporation with its principal place of 

business in Pennsylvania. Thus, there is complete diversity between Plaintiff and Tokio Marine 

as required by 28 U.S.C. § 1332(c)(1). 

B. The Amount In Controversy Exceeds $75,000 

9. To confer subject matter jurisdiction on the court based on diversity of 

citizenship, the amount in controversy must exceed the sum or value of $75,000, exclusive of 

interests and costs. 28 U.S.C. § 1332(a). Where, as here, “a plaintiff makes an unspecified 

demand for damages in state court, a removing defendant must prove by a preponderance of the 

evidence that the amount in controversy more likely than not exceeds the ... jurisdictional 

requirement.” Roe v. Michelin North America, Inc., 613 F.3d 1058, 1061 (11th Cir. 2010)

(internal quotations omitted), citing Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1357 

(11th Cir.1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 

(11th Cir.2000). In applying this standard, the Eleventh Circuit has recognized that common 

sense and reasonable inferences should guide the Court: 

Eleventh Circuit precedent permits district courts to make 

“reasonable deductions, reasonable inferences, or other reasonable 

extrapolations” from the pleadings to determine whether it is 

facially apparent that a case is removable. . . . Put simply, a district 

court need not “suspend reality or shelve common sense in 

determining whether the face of a complaint ... establishes the 

jurisdictional amount.” . . . Instead, courts may use their judicial 

experience and common sense in determining whether the case 

stated in a complaint meets federal jurisdictional requirements. 

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This approach is consistent with those of other circuits. 

Id. at 1061-62 (citations omitted). Based upon Plaintiff’s allegations and theories (which 

Defendant disputes, but which control for removal purposes), the $75,000 amount in controversy 

requirement is satisfied. 

10. First, the Complaint seeks a declaration that Tokio Marine’s denial of Plaintiff’s 

claim under its insurance policy was a breach of contract and the Complaint also seeks 

compensatory damages for that same alleged breach. (See Ex. 1, Complaint at 9, Prayer for 

Relief.) As evidenced by the Certificate of Insurance issued to Plaintiff, which is attached hereto 

as Exhibit 2, the limits of coverage under the policy identified in the Certificate of Insurance for 

Business Income is $50,000. (Ex. 2.) As noted by this Court, the Eleventh Circuit and courts in 

this and other Florida district courts have recognized that when an insurance policyholder seeks 

declaratory relief relating to coverage under an insurance policy, the limits of the policy are 

considered part of the amount in controversy: 

In declaratory judgment actions where coverage under an 

insurance policy is at issue, courts have allowed the policy limit to 

serve as the amount in controversy. Guardian Life Ins. Co. of Am. 

v. Muniz, 101 F.3d 93, 94 (11th Cir. 1996) (holding that the face 

value of a life insurance policy constituted the jurisdictional 

amount); Hirschhaut v. UnitedHealthcare Ins. Co., No. 15-60683-

CIV, 2016 WL 8488279, at *2 (S.D. Fla. Mar. 16, 2016) (allowing 

the health insurance policy limit to serve as the amount in 

controversy); Evanston Ins. Co. v. Sun W. Acquisition Corp., No. 

8:13-CV-2893-T-33TGW, 2014 WL 988764, at *6 (M.D. Fla. 

Mar. 13, 2014) (applying Guardian Life to a property insurance 

dispute and finding that the policy limits satisfied the jurisdictional 

requirement). 

Bethany Evangelical Covenant Church of Miami, Fla., Inc. v. Philadelphia Indem. Ins. Co., Case 

No.: 18-23336-CIV-Martinez/AOR, 2018 WL 6573322, at *2, *3 (S.D. Fla. Oct. 11, 2018) 

(finding limits of property damages policy satisfied jurisdictional requirement where plaintiff 

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sought declaratory relief that damage to property was covered under the policy). Accordingly, 

since Plaintiff has sought a declaration that its loss is covered under the policy issued by Tokio 

Marine, the $50,000 limits of that policy may serve as part of the jurisdictional amount for 

removal. 

11. For compensatory damages, Plaintiff seeks in excess of $30,000. (See Ex. 1, 

Complaint, ¶ 8.) Plaintiff’s Complaint also seeks punitive and extra-contractual damages for 

statutory bad faith in Count III under F.S.A. § 624.155. (See Ex. 1, Complaint ¶ 60.) These 

damages purport to be premised on Tokio Marine’s alleged “general business practice of willful, 

wanton, immoral unlawful, malicious and/or deceptive claims handling practices.” (See Ex. 1, 

Complaint ¶ 57.) 

12. While Tokio Marine disputes that Plaintiff is entitled to any damages at all, the 

Eleventh Circuit requires that punitive damages must be considered when determining the 

jurisdictional amount in controversy in diversity cases, unless it is apparent to a legal certainty 

that such cannot be recovered. Holley Equip. Co. v. Credit All. Corp., 821 F.2d 1531, 1535 (11th 

Cir.1987). Here, punitive damages are permitted under F.S.A. § 624.155(5) if plaintiff can 

establish malicious, willful or wanton behavior or actions in reckless disregard of the rights of 

the insured. Pursuant to F.S.A. § 768.73, punitive damages could be as great as the lesser of 

three times the amount of compensatory damages, or $500,000, either of which here would result 

in the amount in controversy exceeding the jurisdictional minimum of $75,000. 

13. In addition, Plaintiff also seeks statutory attorney’s fees pursuant to F.S.A. §§ 

624.155(4) and 627.428. Statutory attorney’s fees are likewise considered part of the amount in 

controversy. Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1265 (11th Cir. 2000); DO Rests., 

Inc. v. Aspen Specialty Ins. Co., 984 F.Supp.2d 1342, 1346 (S.D. Fla. 2013) (if insured prevails, 

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it would be entitled to an award of attorney's fees under F.S.A. § 627.428 so the inclusion of 

attorney's fees in the calculation of the amount in controversy is appropriate.). While the precise 

amount of attorney’s fees potentially awardable here is not known, even a modest attorney’s fee 

award when added to the $50,000 policy limits could establish the jurisdictional minimum 

amount in controversy, even in the absence of punitive damages. 

14. For all the foregoing reasons, the $75,000 amount in controversy requirement is 

satisfied here. 

CONCLUSION 

Accordingly, and pursuant to 28 U.S.C. § 1332, and 28 U.S.C. § 1441, Defendant Tokio 

Marine Specialty Insurance Company hereby removes this action to the United States District 

Court for the Southern District of Florida based on the parties’ complete diversity of citizenship 

and an amount in controversy exceeding $75,000, exclusive of interest and costs. 

Dated: April 30th , 2020. 

Respectfully submitted, 

By: s/ Monica L. Irel 

One of the attorneys for Defendant Tokio 

Marine Specialty Insurance Company 

Monica L. Irel 

DENTONS US LLP 

10700 N. Kendall Drive 

Suite 303 

Miami, Florida 33176 

Telephone: 305-670-4843 

Facsimile: 305-670-4846 

E-mail: monica.irel@dentons.com 

One of the attorneys for Defendant Tokio 

Marine Specialty Insurance Company 

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CERTIFICATE OF SERVICE 

I hereby certify that on April 30th, 2020, I electronically filed the foregoing document 

with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being 

served by United States First Class Mail on all counsel or parties of record on the service list 

below: 

SERVICE LIST: 

THE LANDAU LAW GROUP, P.A. 

Matthew D. Landau, Esq. 

Fla. Bar. No. 445967 

1200 North Federal Highway, 

Ste. 200 

Boca Raton, FL 33432 

Phone: (954) 964-0900 

matt@thelandaulawgroup.com

Thayer A. Musa, Esq. 

Fla. Bar. No. 0562211 

LAW OFFICES OF THAYER A. MUSA 

9008 SW 152 ST. 

Miami, FL 32157 

Office: 305-233-6872 

Fax: 305-235-6872 

thayer@musalaw.com

Co-Counsel for Plaintiff 

_______ s/ Monica L. Irel __________ 

 One of the attorneys for Defendant Tokio Marine 

 Specialty Insurance Company 

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