FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 6, 2005

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-11401

________________________

D.C. Docket No. 02-81164-CV-DMM

SUSAN J. FRIEDMAN,

Plaintiff-Appellant, 

versus

NEW YORK LIFE INS. CO.,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

 (June 6, 2005)

Before ANDERSON and WILSON, Circuit Judges, and OWENS*, District Judge,

ANDERSON, Circuit Judge:

________________________

*Honorable Wilbur D. Owens, District Judge for the Middle District of Georgia, sitting by

designation.
Friedman asserts that New York Life has violated Fla.Code § 625.65625, which 1

provides in relevant part:

(1) . . . an insurer that offers a group health insurance policy may not establish rules for

eligibility, including continued eligibility, of an individual to enroll under the terms of the

policy based on any of the following health-status-related factors in relation to the

individual or a dependent of the individual:(a) Health status. (b) Medical condition,

including physical and mental illnesses. (c) Claims experience. (d) Receipt of health care.

(e) Medical history. (f) Genetic information.(g) Evidence of insurability, including

conditions arising out of acts of domestic violence. (h) Disability.

. . .

(4)(a) An insurer that offers health insurance coverage may not require any

individual, as a condition of enrollment or continued enrollment under the policy,

to pay a premium or contribution that is greater than such premium or

contribution for a similarly situated individual enrolled under the policy on the

basis of any health-status-related factor in relation to the individual or to an

individual enrolled under the policy as a dependent of the individual.

(b) This subsection does not:

1. Restrict the amount that an employer may be charged for coverage under a

group health insurance policy. . .

2

Plaintiff, Susan Friedman, appeals the district court's denial of her motion to

remand to state court for lack of jurisdiction. This appeal stems from Friedman’s

suit on behalf of herself and all those similarly situated against her insurer, New

York Life Insurance Co. Friedman claims that her premiums were raised in

violation of certain statutory provisions of Florida law that were, she asserts,

incorporated into her contract with New York Life. She seeks reimbursement of 1

the allegedly overpaid premiums, declaratory relief, and an injunction against

continuing violation of Florida law. The case was brought in state court and
After denial of Friedman’s motion to remand, the district court dismissed the 2

complaint pursuant to Fed. R. Civ. P. 12(b)(6). Friedman also appeals that ruling, but we do not

reach that issue because we vacate on the jurisdictional ground.

3

removed by New York Life on diversity grounds. 28 U.S.C. Sec. 1332. Because

we conclude that New York Life failed to satisfy the $75,000 amount in

controversy requirement, we conclude that the district court was without diversity

jurisdiction.2

I. FACTS AND PROCEDURAL HISTORY

Friedman is a member of the American Veterinary Medical Association

(AVMA), and her health plan is a group plan offered to AVMA members. At the

time of her enrollment, there were three premium rating classes used by the

AVMA: Standard, Standard Plus and Standard Plus 20. Due to her health history,

Friedman was placed in the Standard Plus 20 rating class at enrollment, and her

premium was 20% higher than the Standard premium rating class. At the time she

enrolled, Standard Plus rates were 10% higher than the Standard premium rating

class. Several years after she enrolled, New York Life raised the rates for the

Standard Plus group to 15% higher than Standard, and for Standard Plus 20 to

50% higher than Standard. Friedman’s proposed class is “all AVMA insureds in

Florida rated Standard Plus and/or Standard Plus 20." 
4

The suit was originally brought in the 15 Judicial Circuit Court in and for th

Palm Beach County. New York Life removed on diversity grounds. Friedman

moved for remand to state court, claiming that the amount in controversy

requirement had not been met. The district court denied the motion, as well as a

motion for reconsideration.

The district court judge did not provide any reasoning for its denial of

Friedman’s motion for remand to state court or her motion for reconsideration. On

appeal, New York Life offers three possible bases for a finding that the amount in

controversy exceeds $75,000; 1) the aggregate total of the premium increases for

which class members seek reimbursement exceeds $75,000; 2) the amount in

controversy is equal to the face value of Friedman's policy, which exceeds

$75,000; and 3) the value of injunctive relief to the plaintiffs exceeds $75,000. 

II. DISCUSSION

Diversity is the only potential basis for jurisdiction in the instant case. As

this Court explained in Morrison, v. Allstate Indem. Co., 228 F.3d 1255 (11 Cir. th

2000): “lower federal courts are empowered to hear only cases for which there has

been a congressional grant of jurisdiction, and once a court determines that there

has been no grant that covers a particular case, the court's sole remaining act is to
5

dismiss the case for lack of jurisdiction.” Id. at 1261(citations omitted). As this

Court noted in Kirkland v. Midland Mortgage Co., 243 F.3d 1277(11 Cir. 2001), th

“[i]n removal cases, the burden is on the party who sought removal to demonstrate

that federal jurisdiction exists. Where the plaintiff has not plead a specific amount

of damages . . . the defendant is required to show. . . by a preponderance of the

evidence that the amount in controversy” can be satisfied. Id. at 1281 n.5

(citations omitted).

A. Aggregation

In Morrison, this Court outlined the relevant framework with regards to the

aggregation issue that is the crux of this case:

Generally, if no single plaintiff's claim satisfies the requisite amount

in controversy, there can be no diversity jurisdiction. However, there

are situations in which multiple plaintiffs have a unified, indivisible

interest in some common fund that is the object of litigation,

permitting them to add together, or "aggregate," their individual

stakes to reach the amount in controversy threshold. As explained by

the Supreme Court in Zahn v. International Paper Co.:

When two or more plaintiffs, having separate and

distinct demands, unite for convenience and economy in

a single suit, it is essential that the demand of each be of

the requisite jurisdictional amount; but when several

plaintiffs unite to enforce a single title or right, in which

they have a common and undivided interest, it is enough

if their interests collectively equal the jurisdictional

amount.
6

Zahn, 414 U.S. 291 at 295, 94 S.Ct. 505 at 508 (quoting Troy Bank of

Troy, Indiana v. G.A. Whitehead & Co., 222 U.S. 39, 40-41, 32 S.Ct.

9, 56 L.Ed. 81 (1911)).

Despite pervasive criticism of the "separate and distinct" versus

"common and undivided" distinction as arcane and confusing, there

appears to be a common thread in the relevant case law–the presence

of a "common and undivided interest" is rather uncommon, existing

only when the defendant owes an obligation to the group of plaintiffs

as a group and not to the individuals severally. See Eagle v. American

Tel. and Tel. Co., 769 F.2d 541, 546 (9th Cir. 1985) ("[T]he character

of the interest asserted depends on the source of plaintiffs' claims. If

the claims are derived from rights that they hold in group status, then

the claims are common and undivided. If not, the claims are separate

and distinct."); National Org. for Women v. Mutual of Omaha Ins.

Co., 612 F.Supp. 100, 107 (D.D.C. 1985) ("[T]he cases that allow

aggregation often speak of the presence of some fund to which a

plaintiff class is seeking access [, and]. . . they often involve an

attempt to enforce a right that belongs to a group.").

Our predecessor court elucidated this point further in Eagle Star Ins.

Co. v. Maltes, 313 F.2d 778 (5th Cir. 1963), stating: "[T]he Supreme

Court has evinced a desire to give a strict construction to allegations

of the jurisdictional amount in controversy, so as to allow aggregation

only in those situations where there is not only a common fund from

which the plaintiffs seek relief, but where the plaintiffs also have a

joint interest in that fund, such that if plaintiffs' rights are not affected

by the rights of co-plaintiffs, then there can be no aggregation. . . . In

other words, the obligation to the plaintiffs must be a joint one." Id. at

781; see also Gilman v. BHC Secs., Inc., 104 F.3d 1418, 1424 (2d

Cir. 1997) ("Plaintiffs in paradigm 'common fund' cases assert claims

to a piece of land, a trust fund, an estate, an insurance policy, a lien,

or an item of collateral, which they claim as common owners or in

which they share a common interest arising under a single title or

right."). 

Morrison, 228 F.3d at 1262-63 (emphasis added in Morrison).
7

The Morrison case is similar to the instant case in several respects. It

involved a class action against insurance company defendants. The issue was the

$75,000 amount in controversy and whether the claims of the class members could

be aggregated to reach that threshold. Also, like this case, the plaintiffs were not

seeking the face amount of the policy, but rather were seeking a different amount. 

They sought damages for the diminished value of their wrecked vehicles after

repair; in other words, they sought the difference in value between pre-wreck

value and post-wreck value. In addition to their damage claims, they also sought

injunctive relief. Applying the principles quoted above, this Court held that the

nature of the right asserted was crucial, and that the rights asserted by the

Morrison plaintiffs were separate and distinct and therefore could not be

aggregated.

We conclude that Friedman and the other putative class members have

separate and distinct claims, which do not constitute common and undivided

claims to a common fund. Friedman and each of the other plaintiffs each claims a

right to damages, namely a right to be reimbursed for the amounts that each has

overpaid in premiums, which overpayments they allege violate Florida law. Each

plaintiff could have brought a separate suit. If plaintiffs prevail, each plaintiff will

recover precisely the amount of his or her overpayment (whether in the same or
8

different amounts) without any effect on the rights of co-plaintiffs. Moreover,

there is no common fund; the plaintiffs do not seek distribution of the face amount

of the policy; rather, each plaintiff seeks only reimbursement of the amount he or

she overpaid in premiums. 

New York Life argues that there should be aggregation because the class

members here are seeking the totality of all of the overcharged amounts, such that

they seek to create a fund from which class members will benefit. We reject this

argument because such a fund is not the type of common fund which is required

for aggregation. As the second circuit noted in Gilman:

Such a “fund” is created to facilitate the litigation process in virtually

every class action, and has nothing necessarily to do with whether the

plaintiffs shared a pre-existing (pre-litigation) interest in the subject

of the litigation. 

Under the classic “common fund” cases, what controls is the nature of

the right asserted, not whether successful vindication of the right will

lead to a single pool of money that will be allocated among the

plaintiffs. To call any recovery that a class might win a “fund” to

which the class members are jointly entitled is “merely added

verbage. There is no fund. The claim remains one on behalf of ...

separate individuals for the damage suffered by each due to the

alleged . . . conduct of the defendant.” 

104 F.3d at 1427 (citations omitted). See Morrison, 228 F.3d at 1264 (citing

Gilman as having explained “cogently the difference between a common fund

permitting aggregation and the common fund that is usually generated in any class
9

action”). As in Gilman, the claims in the instant case remain separate and distinct

claims of separate individuals for reimbursement of the amount each overpaid. 

New York Life also argues that Friedman and her putative class members

are mere certificate holders, and that there is only one policy which was issued by

New York Life to AVMA. Indeed, the only ground upon which New York Life

seeks to distinguish Morrison is that Morrison involved multiple insurance

policies, whereas the instant case involves only a single insurance policy. We find

New York Life’s attempted distinction of Morrison to be unpersuasive. The

instant plaintiffs are not asserting a claim for the proceeds of that single policy;

rather, each plaintiff is asserting a claim to be reimbursed the amount of overpaid

premiums which each plaintiff paid. 

Also, New York Life’s suggestion that the individual certificate holders do

not have individual contracts with New York Life is undermined by the Florida

case law. In Equitable Life Assurance Society of the United States v. Waggoner,

269 So.2d 747, 748 (4 DCA 1972), the Florida court stated: “While the th

authorities are divided on the question, we believe the better view to be the one

which holds that under group life insurance policies there is a contract between the

insurer and the individual insured, that the contract consists both of the master

policy and the certificate of insurance construed together.” This portion of
10

Waggoner was quoted with approval in Rucks v. Old Republic Life Ins. Co., 345

So.2d 795, 796 (4 DCA 1977), and Rucks was quoted with approval by this court th

in Davis v. Crown Life Ins. Co., 696 F.2d 1343, 1345 (11 Cir. 1983). See also th

Lutz v. Protective Life Ins. Co., 328 F.Supp.2d 1350, 1362 (S.D. Fla. 2004) (under

indistinguishable facts involving a group policy, holding that each individual

certificate holder had an individual policy with the insurance company, and that

aggregation was not proper).

In support of its argument that certificate holders like Friedman do not have

individual contracts with New York Life, and in support of its argument that this

fact has crucial significance for the “common and undivided interest issue,” New

York Life cites Eagle v. AT&T, 769 F.2d 541 (9 Cir. 1985); Phoenix Ins. Co. v. th

Woosley, 287 F.2d 531, 533 (10 Cir. 1961); Bishop v. General Motors Corp., 925 th

F.Supp. 294, 298 (D. N.J. 1996); Broenen v. Beaunit Corp., 305 F.Supp. 688, 691-

92 (E.D. Wis. 1969), aff’d, 440 F.2d 1244 (7 Cir. 1970); Edgerton v. Armour & th

Co., 94 F. Supp. 549 (C.D. Calif. 1950).

All of these cases are distinguishable; each involved some variation of a

common fund and an undivided interest. In Eagle, plaintiffs were shareholders of

a utility company and their claim was akin to a shareholders’ derivative suit. 769

F.2d at 547. Broenen also involved shareholder plaintiffs. The trust indenture
New York Life does point to one aggregation case, Black v. Beame, 550 F.2d 815, 3

818 (2d Cir. 1977), which does not fit neatly with the common fund cases cited above. In Black,

nine siblings, some of whom were in foster care, sued the state on a theory that the state could

preserve the family unity without increasing the state’s overall expenditure by taking the children

out of foster care and using those funds to hire a social worker to help the family get on its feet. 

On its way to dismissing the plaintiffs’ statutory claims, the Second Circuit reversed the district

court’s finding of no jurisdiction. In the court’s view, the case was properly aggregated because

plaintiffs were seeking to redirect the expenditure of state welfare funds in excess of the

jurisdictional amount, and because the siblings’ interest in family services was common and

undivided. Id. at 817-18. Black v. Beame provides little guidance for our inquiry here due to

the wholly dissimilar factual context underlying the case. The plaintiffs’ interest in family

services was “obviously” common and undivided there, id. at 818, whereas the claims here for

reimbursement of discreet overpayments by individuals plaintiffs are separate and distinct. 

Moreover, Black v. Beame involved federal question jurisdiction which at the time required a

$10,000 jurisdictional amount. In Morrison, 228 F.3d at 1270, n.13, we noted that courts were

more indulgent in finding federal jurisdiction in that context in order to address significant

federal questions.

11

they jointly held prohibited each from taking any action that would affect the

rights of others. 305 F.Supp. at 692. In Edgerton, plaintiffs were all shareholders

or assignees of a dissolved corporation. 94 F.Supp. at 549. In Phoenix, the parties

were seeking distribution of the proceeds of a fire insurance policy, and had a

common and undivided interest in the claim. 287 F.2d at 533.3

Indeed, New York Life can point to no case in this or any other circuit

allowing aggregation for jurisdictional purposes where each plaintiff has a claim

of the kind described above – i.e., one which plaintiff could have brought

separately; in which the amount received does not vary depending upon whether

other plaintiffs join or drop out; and in which a potential plaintiff’s non-
Contrast the situation described in our hypothetical with the paradigmatic 4

common fund case, in which multiple plaintiffs assert “claims to a piece of land, a trust fund, an

estate, an insurance policy, or lien, or an item of collateral. . .” Gilman, 104 F.3d at 1424. In

those cases, one plaintiff’s decision to drop his or her claim results in that plaintiff’s share being

divided up among the remaining claimants. Conversely, the addition of new plaintiffs results in a

proportionate reduction of the original claimants’ share of the pie.

12

participation does not result in that plaintiff’s alleged damages inuring to the

benefit of any other party. 

To see the difference between the instant case and the cases involving

common fund scenarios subject to aggregation, it is useful to consider a

hypothetical that simplifies the facts of the instant case and provides, for

illustrative purposes only, some figures. Suppose that Friedman’s class initially

had 50 members and that, if each prevailed on the merits and the court ordered

repayment of the disputed premiums, each member would receive the amount that

he or she had overpaid in premiums. Suppose further that the overpayment

amount is the same for each class member and that the overpayment amount is

$2,000. Finally, suppose that 45 class members lose interest in the case and drop

out, leaving only 5 members in the class. Each of the remaining 5 members

would receive the same $2,000 he or she would have received prior to the

departure of the others. Conversely, if the class grew to 200 members, the original

50 would not see their recovery in any way diminished. 

4

Finally, New York Life argues that if the plaintiffs get relief in this case,
Such cost-shifting seems to be more in the nature of a possible collateral

5

consequence of an insurance company’s losing a lawsuit, rather than anything related to the

nature of the right asserted by the plaintiff. See Morrison, 228 F.3d at 1264 (“For amount in

controversy purposes, . . . it is the nature of the right asserted . . . that determines whether the

claims of multiple plaintiffs may be aggregated”). 

13

then the entire group will be affected by future premium changes. Specifically,

New York Life claims that there is a common relationship between the class

members and that future premiums will shift between the various class members

and/or between the class members and other insureds as a result of any declaratory

or injunctive relief obtained by Friedman. According to New York Life, costshifting from any one class will increase the premium rates of the remaining

people insured through the group policy.

We have no reason to doubt that, if New York Life loses on the merits of

this case, one possible response might be an attempt to shift some of this cost

amongst its other insureds. However, we are not persuaded that the possibility of

such cost-shifting, which is characteristic of insurance generally, should trigger

aggregation for purposes of calculating the amount in controversy. New York 5

Life’s argument proves too much; if prospective cost-shifting in response to

lawsuits triggered aggregation, aggregation would be the rule, and not the strictly

construed exception. Morrison, 228 F.3d at 1262-63; Eagle Star Ins. Co., 313
As we note infra Part II(C) regarding injunctive relief, this prospective cost- 6

shifting argument is both speculative (because it is just one possible response to a negative ruling

on the merits) and describes a consequence that flows not from the right asserted, but rather from

New York Life’s potential response to a ruling in favor of plaintiffs. See Morrison, 228 F.3d at

1268 (the amount in controversy is determined from the plaintiff’s perspective). 

14

F.2d at 781.6

In sum, aggregation is not permissible in this case.

B. Face Value

New York Life contends that even if aggregation is improper, the case meets

the amount in controversy requirement because “the face value of the policy

controls” and Friedman’s policy has a face value of $2 million. In support of this

proposition, New York Life cites Guardian Life Insurance Co. v. Muniz, 101 F.3d

93, 94 (11 Cir. 1996) (per curiam); C.E. Carnes & Employers’ Liability Assurance th

Corp. 101 F.2d 739, 741 (5 Cir. 1939); New York Life Insurance Co. v. Swift, 38 th

F.2d 175, 176 (5 Cir. 1930). th

These cases are easily distinguishable, as each involved a dispute about the

validity of the policy or the scope of coverage for a claim that put the face amount

of the policy at issue. In both Guardian, 101 F.3d at 94, and Swift, 38 F.2d at 176,

the insurer alleged that the insured had procured life insurance by fraud and sought

to cancel the policy.
15

In Carnes, one of the defendants had insured a truck with plaintiff, an 

insurance company. 101 F.2d 739. The truck was used by this defendant for

hauling liquid butane. When the truck blew up, killing and injuring multiple

people, the insurer sought a declaratory judgment against all claims to the policy by

those who suffered losses in the explosion, on grounds that the policy did not cover

use of the truck for hauling liquid butane. The court stated that “[t]he amount in

controversy is the value of that which is sought to have declared free from doubt –

the policy for $25,000.” Id. at 741. 

Where, as here, there is no controversy involving the face value of the

policy, but only with regards to certain premiums, it would make no sense to

consider the policy’s face value to be the amount in controversy. 

C. Injunctive Relief. 

Finally, New York Life argues that the value of any injunctive relief should

be added to the value of the compensatory damages. However, New York Life

conceded at oral argument that it has not argued that any single plaintiff is seeking

relief which would total $75,000, including any and all aspects of such relief. 

Therefore, New York Life’s argument that the $75,000 amount in controversy is

satisfied necessarily depends upon its aggregation argument.
See Morrison, in which we held: 7

Aggregation is determined by the right asserted, not the relief requested .... 

Accordingly, when an injunction protects rights that are separate and distinct

among the plaintiffs, the value of the injunction to the individual plaintiffs may

not be aggregated to sustain diversity jurisdiction. 

228 F.3d at 1271 (citations omitted). 

16

We have already determined the nature of the right asserted by Friedman and

the other putative class members, namely that they are asserting individual rights

that are separate and distinct from the other class members. And we have already

determined that the nature of the rights asserted here do not permit aggregation.

7

In its briefs to the district court and on appeal, New York Life makes a

conclusory argument that the injunction sought by Friedman would require future

premiums for this group policy to be based upon a completely different rate

structure, which, New York Life argues, would mean that the premiums to be paid

by all future certificate holders would be affected. New York Life argues that this

is sufficient to convert Friedman’s claim into one representing a common and

undivided interest in a single res. We see several flaws in New York Life’s

argument. First, this argument focuses on Friedman’s routine and tag-along prayer

for injunction, while ignoring Friedman’s primary claim for reimbursement of

overpaid premiums. As demonstrated above, Friedman’s primary claim for

reimbursement clearly asserts an individual right that is separate and distinct from
17

that of other class members. See Morrison, 228 F.3d at 1266 (rejecting an

argument that attorney’s fees could be aggregated even though they may partake of

a factor suggestive of a common and individual interest, i.e., a punitive nature, and

holding that attorney’s fees may not be aggregated because plaintiffs had separate

and distinct rights to recover attorney’s fees, the “paramount issue with respect to

... the aggregation of any claim”).

Even if the tag-along prayer for injunction might have more significance

than we are inclined to accord it, it is hard to ascertain from New York Life’s

description that there is in fact a common res or that the plaintiffs’ claims would

properly be deemed to be undivided interests therein. New York Life suggests that

the common res might be deemed to be the future premiums to be paid by all the

certificate holders in this group policy under a revamped rate structure. However,

it is difficult to say that Friedman and the other putative class members have a

common and undivided interest in any such res given that each plaintiff has a

separate and distinct right and any injunction merely protects that right. See

Morrison, 228 F.3d at 1271 (“[W]hen an injunction protects rights that are separate

and distinct . . ., the value of the injunction to the individual plaintiffs may not be

aggregated to sustain diversity jurisdiction.”).

An additional flaw in New York Life’s argument is that it is speculative in at
18

least two ways. New York Life’s creative interpretation of the kind of injunction

Friedman sought is merely New York Life’s own speculation of one possible

response it might take. Should plaintiffs prevail on the merits, it is utter

speculation as to what course or courses of action New York Life might take with

respect to future rate structuring, and Friedman certainly did not specifically seek

any particular injunctive remedy. While the description suggested in New York

Life’s briefs is one possible response, there are undoubtedly several others. For

example, New York Life might find ways to cut costs, or even decide to simply

cancel the policy. See Lutz, 328 F.Supp.2d at 361 (discussing the speculative

nature of injunctive relief in a similar context, noting that the insurance company

could simply cancel the policy and terminate the relationship). New York Life’s

argument is also speculative in that New York Life makes no attempt to quantify

the benefit of any particular injunctive relief to Friedman and the other putative

class members. See Morrison, 228 F.3d at 1268 (holding that for amount in

controversy purposes, the value of injunctive relief is to be measured from the

plaintiffs’ perspective). The speculative nature of the value of any such benefit to

plaintiffs is closely intertwined with the uncertainty regarding the response which

New York Life might take to an adverse merits ruling. 

Finally, we reject New York Life’s approach because, in addition to being
19

speculative, it would create a situation in which the existence of diversity

jurisdiction would often be dependant upon which of several possible responses a

defendant claimed it would take in response to an adverse ruling. Whatever its

other ramifications, such an approach amounts to an impermissible attempt to

measure injunctive relief from the perspective of the defendant. Id.

III. CONCLUSION

For the foregoing reasons, we are persuaded that New York Life has failed to

carry its burden of establishing an amount in controversy in excess of $75,000.

Accordingly, the district court did not have jurisdiction to hear this case. We

vacate the judgment of the district court and remand this case with instructions for

the district court to remand the case to the state court. 

VACATED and REMANDED.