1

28 U.S.C. § 1332 (a) (2002) provides that district courts have original

jurisdiction in actions wherein the amount in controversy exceeds $75,000 and is

between citizens of different States.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MARIE TOOLE and CHRIS TOOLE, )

)

Plaintiffs, )

)

vs. ) CIVIL ACTION NO: 2:06-CV-652-VPM

)

ALFA MUTUAL INSURANCE CO., )

MATTHEW CHUPP, and )

DON BRAMLETT, )

)

Defendants. )

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION

TO REMAND

Defendants, Matthew Chupp and Don Bramlett (“Defendants”), respectfully

submit this response in opposition to Plaintiffs’ Motion to Remand:

I. ARGUMENT

28 U.S.C. § 1441 (a) (2002) provides for the following:

Except as otherwise expressly provided by Act of Congress, any civil action

brought in a State court of which the district courts of the United States have

original jurisdiction, may be removed by the defendant or the defendants, to the

district court of the United States for the district and division embracing the

place where such action is pending. . .

[. . .]

Further, “[w]here the parties are diverse and the amount in controversy is sufficient1

,

a defendant has the statutory right to remove an action from state court to federal

court.” Pinckard Vault & Marble Works v. King Lifts, Inc., 53 F.Supp.2d 1263 (M.D.

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Ala. 1999). Defendants submit to this Honorable Court that Plaintiffs’ Motion to

Remand is due to be denied because (1) the parties are of diverse citizenship and (2)

the amount in controversy exceeds $75,000. 

A. THE PARTIES TO THIS ACTION ARE CITIZENS OF DIFFERENT

STATES THEREBY SATISFYING BOTH DIVERSITY OF

CITIZENSHIP AND THE FIRST PRONG OF REMOVAL UNDER

PINCKARD

The gist of Plaintiff’s argument is that since Alfa Mutual Insurance Co. (“Alfa”)

is sued on an Uninsured/Underinsured Motorist claim and is an Alabama corporation

there is no diversity. Defendants submit, however, the citizenship of Alfa is to be

disregarded. Moreover, Alfa has exercised its right to opt out of the litigation.

“Federal courts have jurisdiction over controversies between ‘Citizens of different

States’ by virtue of 28 U.S.C. § 1332 (a) (1). . .” Navarro Sav. Ass’n v. Lee, 446 U.S.

458, 459 (1980). “[C]itizens’ upon whose diversity a plaintiff grounds jurisdiction must

be real and substantial. (Citations omitted) [A] federal court must disregard nominal

or formal parties and rest jurisdiction only upon the citizenship of real parties to the

controversy.” Navarro Sav. Ass’n, 446 U.S. 458, 460. Further, “[f]or purposes of

removal, [a] court does not consider citizenship of fictitious defendants in assessing

complete diversity.” Davis ex rel. Estate of Davis v. General Motors Corp., 353

F.Supp.2d 1203 (M.D. Ala. 2005). 

It is undisputed that the real parties to this action are Plaintiffs Marie and

Chris Toole, citizens of the State of Alabama, and Defendants Matthew Chupp and Don

Bramlett, citizens of the State of Georgia. The citizenship of the fictitious parties

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named by Plaintiff is ignored for purposes of diversity jurisdiction. See supra. The

question before this Honorable Court is whether the citizenship of Alfa, the uninsured

motorist carrier in this action, is relevant for a determination of diversity jurisdiction.

Defendants submit to this Honorable Court that the citizenship of Alfa should be

ignored for purposes of removal. See, Broyles v. Bayless, 878 F.2d 1400 (11th Cir.

1989).

The 11th Circuit negatively answered the above question in Broyles . The facts

of Broyles are as follows: a Tennessee Plaintiff was rear-ended by a Georgia Defendant.

878 F.2d 1400, 1401. The Tennessee Plaintiff filed suit against the Georgia Defendant,

as well as filing “a claim for underinsured motorist benefits with his underinsured

motorist carrier. . .” Id. at 1401. The underinsured motorist carrier, a Tennessee

Corporation known as Tennessee Farmers, filed a motion to dismiss “alleging that no

diversity existed between [them] and the plaintiffs. . .” Id. at 1401. The Court held

that “[while the underinsured motorist carrier] has a financial stake in the litigation,

it is not a real party in interest for purposes of determining diversity. “ Id. at 1405.

Further, the Court stated that the underinsured motorist carrier was removed from

direct liability in the action because, among other things, “before liability may be

imposed on Tennessee Farmers the issues of coverage must be litigated.” Id. at 1405.

Alabama law is similar to that of the relevant Tennessee law of which the

opinion of Broyles is based. Alabama law provides that for a plaintiff to “demonstrate

that [it is] ‘legally entitled to recover’ damages under [his or her insurance] policy, [he

or she] ‘must be able to establish fault on the part of the uninsured motorist, which

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gives rise to damages and must be able to prove the extent of those damages’.” Ex

parte State Farm Mutual Automobile Insurance Co., 893 So.2d 1111 (Ala. 2004). In

order for the Tooles to recover in this action, the liability of the alleged tortfeasors,

Matthew Chupp and Don Bramlett, must be adjudicated. See also Sparks v. City of

Florence, 2006 WL 1041036, at * (Ala. Feb. 10, 2006) (for the proposition that the

liability of an uninsured motorist carrier depends on the adjudication of the liability

of the uninsured motorist). Just as the underinsured motorist carrier in Broyles was

removed from the action by way of the prerequisite that coverage be litigated before

liability attaches, Alfa should be removed from this action by way that the liability of

the alleged tortfeasors must be established before the carrier has liability for any claim

submitted to it by the Tooles. Further, “the essential nature of the present proceeding

is an action in tort between diverse citizens for the recovery of injuries sustained in an

automobile accident. The essential effect of the lawsuit is to adjudicate the liability of

[Alfa]. If [the Defendants] successfully defend [themselves], [Alfa] will escape any

financial obligation to [the Tooles].” Broyles, 878 F.2d 1400, 1406 (where the Court

employed the language cited as to its conclusion as to why Tennessee Farmers is a

nominal party whose citizenship is irrelevant to a determination of jurisdiction). This

Court should hold, by reliance on Broyles, that Alfa is a mere nominal party and its

citizenship should be disregarded for the purpose of determining jurisdiction of the

parties to this action in a Motion for Remand.

Additionally, Alfa has removed itself from this suit by exercising its right to opt

out. Alfa’s option out of this litigation strongly supports the determination that Alfa

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 Defendants note that at no time in their Brief do Plaintiffs admit their

claim is for less than the jurisdictional amount nor that they will accept no more

than that amount if a greater verdict is obtained.

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is merely a nominal party. As the court in Broyles stated: “Because of the indirect and

invisible roles often played by insurance companies in tort litigation, courts generally

do not recognize these companies as real parties to an action unless they have (1)

become subrogated to the rights of their insured after payment of the loss, (2) they are

defending actions brought directly against them, or (3) when, for some reason, they

must assume primary and visible control of the litigation.” 878 F.2d 1400, 1403. The

first exception is left unfulfilled because Alfa is not subrogated to any rights of the

insured because a determination of whether liability exists has yet to be adjudicated

by this Court. The second exception is left unfilled because this action is not one

wherein an insured has sued his or an insurance company for issues relating to

coverage or payment nor is this a direct action against the insurer as contemplated by

28 U.S.C. § 1332 (c) (2002). See Broyles, 878 F.2d 1400, 1403. The third exception is

left unfulfilled because Alfa has elected to opt out of this litigation and, as a result of

such decision, has no primary control over this litigation. This Court, because Alfa is

not a subrogee of the rights of the insured, is not directly sued for any wrong or

omission on its part, nor has any control over this litigation, should determine that

Alfa is a nominal party for purposes of jurisdiction. 

B. THE AMOUNT IN CONTROVERSY IN THIS ACTION EXCEEDS

$75,000 THEREBY SATISFYING DIVERSITY JURISDICTION

AND THE SECOND PRONG OF PINCKARD2

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 To properly invoke diversity jurisdiction, a plaintiff must allege that the

amount in controversy exceeds $75,000, excluding interest and costs. See 28 U.S.C. §

1332 (a) (2002). “Where a plaintiff has made an unspecified demand for damages in

state court, a defendant removing the action on diversity grounds must prove by a

preponderance of the evidence that the amount in controversy more likely than not

exceeds the jurisdictional limit.” Alexander v. Captain D’s, LLC, No. CIV.A.2:05cv797-

MHT, 2006 WL 1765902, at *1 (M.D. Ala. June 14, 2006). “When a case is removed on

diversity grounds, but the complaint does not claim a specific amount of damages and

the jurisdictional amount is not facially apparent from the complaint, the court should

look to the notice of removal and may require evidence relevant to the amount in

controversy at the time the case was removed.” Alexander, 2006 WL 1765902, at *1.

“The defendant need only show ‘that the amount in controversy more likely than not

exceeds the jurisdictional amount.’” Fowler v. Provident Life and Accident Ins. Co., 256

F.Supp.2d 1243 (N.D. Ala. 2003) (citing Tapscott v. MS Dealer Service Corp., 77 F.3d

1353 (11th Cir. 1996) (overruled on other grounds)). 

Plaintiffs have not alleged a definitive amount of damages on the face of their

complaint. Both Plaintiffs do claim compensatory and punitive damages. Plaintiff

Marie Toole alleges she suffered an injury to her rotator cuff requiring surgery and

which may require additional surgery. She alleges she has endured pain and suffering

and will experience “lifelong” pain and suffering in the future. She makes a claim for

damage to her vehicle. In addition to the allegations noted in the Complaint, Plaintiffs

allege the following in the Motion to Remand:

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 [O]n or about July 9, 2004 defendant Matthew Chupp, while driving a vehicle

owned by Don Bramlett, did negligently and / or wantonly and / or recklessly

allow his vehicle to collide with the vehicle being driven by Plaintiff Marie Toole

which caused her to suffer substantial bodily and physical injury as well as

emotional stress and mental anguish from her injuries and caused her to

suffer the diminished value of her vehicle. Plaintiff Chris Toole, husband,

personally suffered damages as a result of the loss of consortium of his wife.

Plaintiffs’ Motion to Remand at ¶ 3 (emphasis added). Plaintiffs also allege a count

against Bramlett for negligent entrustment of the vehicle to Chupp. 

Plaintiffs further assert a claim for Uninsured/Underinsured Motorist coverage.

Plaintiffs allege Defendants are either “uninsured or underinsured”. See, Plaintiffs’

Complaint at ¶ 18. With the removal petition, these Defendants submitted the

declaration sheet of their coverage with Nationwide. It is a 100/300 policy for bodily

injury and $50,000.00 property damage. By alleging these Defendants are

“undersinsured” when insured for $100,000.00 per bodily injury Plaintiffs admit their

claims exceed the jurisdictional amount of this Court.

Further, Defendants submit the following cases with similar facts to Plaintiffs’

claim; all cited cases received verdicts in excess of $75,000 wherein a jury believed the

testimony of the Plaintiff(s): Beckham v. Griffin, 1985 WL 285496 (Ala. Cir. Ct.)

(where a jury in Barbour county awarded $400,000 where Plaintiff hurt his foot and

had to remain in a “boot” when his vehicle was hit by Defendant’s vehicle); Horne v.

McCall, 1994 WL 180719 (Ala. Cir. Ct.) (where a jury in Lowndes County in March of

1994 returned a verdict of $300,000 for a Plaintiff who suffered substantial bodily and

physical injury, including a bulging disc, when her vehicle was struck by an uninsured

Defendant’s vehicle; additionally, the verdict included Plaintiff’s husband’s claimed

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loss of consortium of his wife); Bailey v. Fitzgerald Jones, 2003 WL 24047658 (where

a jury in Mobile county returned a verdict for $200,000 for a Plaintiff who suffered

substantial bodily and physical injury resulting in an “aggravation of cervical bone

spur” when her vehicle was struck by an uninsured Defendant’s vehicle); Don Meadows

et al v. Stephen Martin et al, 2001 WL 34780441 (Ala. Cir. Ct.) (where a jury in

Baldwin county returned a verdict for 6.250 million dollars for 4 Plaintiffs whose

vehicle was struck by a vehicle driven by Defendant where all 4 of the Plaintiffs

suffered substantial bodily and physical injury; further, the Plaintiffs alleged negligent

entrustment of the vehicle operated by one of the Defendants and one Plaintiff alleged

loss of consortium); Wallace v. Leerasiri et al, 1999 WL 1333640 (where a jury in

Baldwin County returned a verdict for $555,000 in compensatory damages and

$150,000 in loss of consortium where Plaintiff suffered bodily injury and emotional

distress when her vehicle was hit by Defendant). Each and every plaintiff in the above

cited cases were dealt substantial bodily and physical injury vis-a-vis an automobile

accident. Plaintiffs likewise submit to this Honorable Court that they were dealt

substantial bodily and physical injury vis-a-vis an automobile accident. 

This Court should find that the amount in controversy exceeds $75,000.00

because (1) the inclusion of the “underinsured” motorist claim coupled with the policy

limits of $100,000.00 and (2) verdicts in the representative cases in light of Plaintiffs’

allegations as to both injury and loss of consortium.

III. PLAINTIFF CHRIS TOOLE’S CONSORTIUM CLAIM

Plaintiffs do not raise in their Motion to Remand any issue related to the

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consortium claim and obviously have conceded that it is not a ground requiring

remand. To the extent it is an issue Defendants submit either Plaintiff or Chris Toole’s

claims exceeds the jurisdictional amount as demonstrated above; but if not, this Court

has supplemental pendant party jurisdiction. See Monroe v. Brown, 256 F.Supp.2d

1292 (M.D. Ala. 2003).

CONCLUSION

For the above reasons, Defendants submit that Plaintiffs’ Motion to Remand is

due to be denied, and, this Court should retain jurisdiction of this case.

/s/ Randall Morgan 

RANDALL MORGAN (MOR037)

Attorney for Named Defendants

OF COUNSEL:

HILL, HILL, CARTER, FRANCO,

 COLE & BLACK, P.C.

Post Office Box 116

Montgomery, Alabama 36101-0116

Telephone: (334) 834-7600

Facsimile: (334) 832-7419

Email: rmorgan@hillhillcarter.com

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CERTIFICATE OF SERVICE

I hereby certify that on the 25th day of August 2006, I electronically filed the

foregoing with the Clerk of Court using the CM/ECF system which will send

notification of such filing to the following:

Jim S. Calton, Jr., Esq. 

226 East Broad Street

Post Office Box 895

Eufaula, Alabama 36072-0895

caltonlaw@eufaula.rr.com

Courtney R. Potthoff, Esq.

Williams, Potthoff, Williams & Smith

Post Office Box 880

Eufaula , AL 36072-0880

cpotthoff@mindspring.com

/s/ Randall Morgan 

OF COUNSEL

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