IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ORLANDO ROSA, et al., )

)

Plaintiffs, )

)

v. ) No. 12 C 1765

)

AMERICAN FAMILY LIFE ASSURANCE )

COMPANY OF COLUMBUS GEORGIA, )

)

Defendant. )

MEMORANDUM ORDER

At the end of last week American Family Life Assurance

Company of Columbus Georgia (“AFLAC”) filed a Notice of Removal

(“Notice”) to bring this action by Orlando and Marie Rosa

(collectively “Rosas”) from its place of origin in the Circuit

Court of Cook County to this District Court, purporting to ground

federal subject matter jurisdiction in diversity of citizenship

terms. Because AFLAC’s counsel has totally misread the Illinois

statute on which the Notice seeks to rely, this Court sua sponte

remands this action to the Circuit Court for lack of the required

subject matter jurisdiction.

Rosas filed this action as a Complaint for Declaratory

Judgment, with Complaint Counts I and II alleging damages of

$15,000 or $20,000. Notice ¶5 asserts that the damages claim 1

 Some ambiguity in that respect is created by the 1

allegation that Marie Rosa allegedly suffered “Paralysis” as well

as sustaining a “Coma,” both as defined in AFLAC’s policy. Under

that policy the existence of a Coma provides a $10,000 benefit,

while the existence of Paralysis may call for either a $10,000

benefit in the case of quadriplegia (the paralysis of four limbs)
seeks the larger $20,000 figure, but whether that is correct need

not be explored further because the main ad damnum on which

AFLAC’s counsel relies to go past the over-$75,000 jurisdictional

floor is set out in Notice ¶5:

In Count III the Plaintiffs seek recovery of $60,000,

pursuant to statute, and costs and attorney’s fees in

addition.

But that is not at all what the statute identified in

Complaint Count III--215 ILCS 5/155 (“Section 155”)--provides. 

As anyone who represents (or who has sued) an insurance company

in Illinois ought to know, Section 155 provides that an insurer’s

“vexatious and unreasonable” delay in settling a claim permits

the “allow[ance] as part of the taxable costs in the action

reasonable attorney fees” together with “an amount not to exceed

any one” (emphasis added) of three figures (quoted verbatim from

Section 155):

(a) 60% of the amount which the court or jury

finds such party is entitled to recover against the

company, exclusive of all costs;

(b) $60,000;

(c) the excess of the amount which the court or

jury finds such party is entitled to recover, exclusive

of costs, over the amount, if any, which the company

offered to pay in settlement of the claim prior to the

action.

or a $5,000 benefit in the case of paraplegia (the paralysis of

lower limbs). Complaint ¶17 alleges only that the claimed

surgical accident to Marie Rosa “resulted in complete loss of use

of two or more limbs,” so that which of those two alternatives

applies is unclear.

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Here AFLAC’s attorney has impermissibly selected

alternative (b)--but based on Rosas’ Complaint the base amount

that Rosas are “entitled to recover against the company” is

$15,000 or $20,000, so that alternative (a) sets a ceiling of

$9,000 or $12,000 (60% of the potential recovery) as a potential

add-on to the $15,000 or $20,000 in damages. As already

indicated, that total of $24,000 or $32,000 is potentially

amplified under Section 155 by the allowance of “reasonable

attorney fees,” but in this circuit such fees must be calculated

as of the date the state court Complaint was filed and not at

some greater amount that may be incurred in the future

(Gardynski-Leschuk v. Ford Motor Co., 142 F.3d 955, 958-59 (7th

Cir. 1998)). Hence the total amount in controversy

unquestionably flunks the 28 U.S.C. §1332(a) standard.

In sum, the bottom line is that Rosas’ lawsuit does not even

come close to approaching the over-$75,000 amount in controversy

required for removal. That being the case, it is an

understatement to say that “it appears that the district court

lacks subject matter jurisdiction” (28 U.S.C. §1447(c)), and

remand is mandated under that last-cited statute. It is hereby

ordered that the certified copy of the order of remand shall be

mailed by this District Court’s Clerk to the Clerk of the Circuit

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Court of Cook County forthwith.

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: March 14, 2012

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