IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CHICAGO’S PRESCHOOL 

ACADEMY OF LEARNING, INC. 

d/b/a WEE CARE PRESCHOOL, 

 Plaintiff, 

 v. 

WEST BEND MUTUAL INSURANCE 

COMPANY, 

 Defendant. 

 No. 20-cv-04044 

 Judge John F. Kness 

 

MEMORANDUM OPINION AND ORDER 

 Plaintiff Chicago’s Preschool Academy of Learning, Inc., doing business as Wee 

Care Preschool (“Wee Care”), originally brought this action in the Circuit Court of 

Cook County, Illinois. Defendant West Bend Mutual Insurance Company (“West 

Bend”) removed the case to this Court on July 9, 2020. Dkt. 2, Notice of Removal. Wee 

Care now seeks to remand for lack of subject matter jurisdiction on the grounds that 

its claim does not satisfy the $75,000 amount-in-controversy jurisdictional 

requirement of 28 U.S.C. § 1332(a). Dkt. 8. As explained below, because West Bend 

has not met its burden of showing by a preponderance of the evidence that Wee Care’s 

claim is worth the amount necessary to establish jurisdiction, see Oshana v. CocaCola Co., 472 F.3d 506, 511 (7th Cir. 2006), Wee Care’s motion is granted. This case 

is remanded to the Circuit Court of Cook County, Illinois for further proceedings. 

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I. BACKGROUND 

Plaintiff Wee Care runs a preschool in Chicago, Illinois. Complaint (“Compl.”), 

Dkt. 2-1 ¶ 7. On March 21, 2020, at the onset of the COVID-19 pandemic, the 

Governor of Illinois issued guidance that mandated the immediate closure of all 

preschool facilities in the state. Id. ¶¶ 30-31. As a result, Wee Care was forced to shut 

down its operations. Id. ¶ 4. 

 At the time of the closure, Wee Care held a Commercial Lines Insurance Policy 

(the “Policy”) with West Bend. Id. ¶ 11. The Policy, which was in effect from August 

14, 2019 to August 14, 2020, included a Communicable Disease Business Income and 

Extra Expense Coverage provision (the “Communicable Disease Coverage”) that 

covered: 

. . . the actual loss of Business Income or Extra Expense that you sustain 

as the result of your “operations” being temporarily shut down or 

suspended as ordered by a local, state, or federal board of health or 

similar governmental board that has jurisdiction over your “operations”. 

The shutdown or suspension must be due to an outbreak of a 

“communicable disease” or a “water-borne pathogen” at the insured 

premises . . . 

Id. ¶¶ 12, 16; p. 46. The Communicable Disease Coverage limited claims brought 

under that provision to a maximum recovery of $50,000. See id. (“The most we will 

pay under this Additional Coverage for loss in any one occurrence is $50,000”). 

Following the mandated closure of its facilities, Wee Care made a single insurance 

claim to West Bend, but West Bend denied it. Id. ¶¶ 35-36. 

 On June 23, 2020, Wee Care sued West Bend in the Circuit Court of Cook 

County, Illinois. The Complaint includes two counts—declaratory relief and breach 

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of contract—and seeks “compensatory damages in an amount . . . not less than 

$50,000[.]” Id. at 7. West Bend timely removed the action to this Court, and Wee Care 

now seeks to remand for lack of subject matter jurisdiction. See Dkt. 2, 8. 

II. LEGAL STANDARD 

 Removal is governed by 28 U.S.C. § 1441, which provides, in pertinent part, 

that “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 . . . embracing the place where 

such action is pending.” 28 U.S.C. § 1441(a). But “[o]nly state-court actions that 

originally could have been filed in federal court may be removed to federal court[.]” 

Caterpillar v. Williams, 482 U.S. 386, 392 (1987). West Bend’s asserted basis for 

federal jurisdiction in this case is diversity jurisdiction under 28 U.S.C. § 1332, which 

states that district courts have “original jurisdiction of all civil actions where the 

matter in controversy exceeds the sum or value of $75,000, exclusive of interest and 

costs, and is between . . . citizens of a State and citizens or subjects of a foreign 

state[.]” 28 U.S.C. § 1332(a)(2). 

 In cases of removal, the amount in controversy is measured as “the amount 

required to satisfy the plaintiff’s demands in full . . . on the day the suit was 

removed[.]” Oshana, 472 F.3d at 510–11 (internal citations omitted). A removing 

defendant may “present its own estimate of the stakes; it is not bound by the 

plaintiff’s estimate.” Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 

830 (7th Cir. 2011). Whether the amount in controversy exceeds $75,000 is a 

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prediction, not a fact. See Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 541 (7th 

Cir. 2006). But the proponent of federal jurisdiction must allege and prove the 

“jurisdictional facts” that determine the amount in controversy by a preponderance 

of the evidence. Id. Once the proponent has established these facts, “the proponent’s 

estimate of the claim’s value must be accepted unless there is a ‘legal certainty’ that 

the controversy’s value is below the threshold.” Id. (citations omitted). See also Back 

Doctors, 637 F.3d at 830 (“the estimate of the dispute’s stakes advanced by the 

proponent of federal jurisdiction controls unless a recovery that large is legally 

impossible”). 

 Finally, federal courts should interpret the removal statute “narrowly, 

resolving any doubt in favor of the plaintiff’s choice of forum in state court.” Schur v. 

L.A. Weight Loss Ctrs., 577 F.3d 752, 758 (7th Cir. 2009) (citing Doe v. Allied–Signal, 

Inc., 985 F.2d 908, 911 (7th Cir. 1993)). But “[t]here is no presumption against federal 

jurisdiction in general, or removal in particular.” Back Doctors, 637 F.3d at 830. 

III. DISCUSSION 

A removed case must be remanded to state court if at any time it appears the 

federal district court does not possess subject matter jurisdiction. West Bend removed 

this case on the basis of diversity jurisdiction under 28 U.S.C. § 1332 and thus must 

establish that the case meets that statute’s diversity and amount-in-controversy 

requirements. 28 U.S.C. § 1332(a). The parties do not dispute that complete diversity 

exists (Wee Care is a citizen of Illinois and West Bend is a citizen of Wisconsin), but 

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disagree whether the value of the case exceeds the jurisdictional threshold of $75,000. 

Id. 

 In its motion to remand, Wee Care claims its recovery is limited to “no more 

than $50,000” under the language of the Communicable Disease Coverage—well 

below the $75,000 amount-in-controversy threshold.1 Dkt. 8 ¶ 9. West Bend 

acknowledges that the Communicable Disease Coverage “has a limit of $50,000 per 

occurrence[,]” Dkt. 12 at 2, but argues that, despite the language in the Policy, Wee 

Care’s allegations demonstrate the true value of the case exceeds $75,000. As 

explained below, however, West Bend has not met its “burden of showing by a 

preponderance of the evidence facts that suggest the amount-in-controversy 

requirement is met.” See Oshana, 472 F.3d at 511. 

 West Bend first argues that the amount in controversy exceeds $75,000 

because Wee Care’s complaint contains two counts—declaratory judgment (Count I) 

and breach of contract (Count II)—and Wee Care “does not allege that the damages 

overlap, nor does it plead these causes of action in the alternative.” Dkt. 12 at 2. In 

general, “a party may aggregate two or more claims against a defendant to satisfy the 

                                                             1 West Bend characterizes this statement as a “disclaimer” or a “post removal stipulation[ 

] [that] cannot defeat jurisdiction.” Dkt. 12 at 2. West Bend is correct that such disclaimers 

or stipulations cannot ordinarily be used as evidence to defeat removal. See Kalin v. QBE Ins. 

(Australia) Ltd., No. 12 C 2147, 2013 WL 316794, at *3 (N.D. Ill. Jan. 28, 2013). Here, 

however, the record does not reflect that Wee Care has submitted any such disclaimer or 

post-removal stipulation that its damages are limited to a certain amount. The Court 

presumes that Wee Care’s statement that its recovery is limited to “no more than $50,000[,]” 

Dkt. 8 ¶ 9, is not a disclaimer or a post-removal stipulation, but merely Wee Care’s valuation 

of the case “on the day the suit was removed[.]” Oshana, 472 F.3d at 511. But regardless of 

how this statement is characterized, West Bend has not, as discussed below, met its burden 

of demonstrating by a preponderance of the evidence that the amount in controversy meets 

the statutory amount necessary to confer jurisdiction under 28 U.S.C. § 1332(a). 

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amount-in-controversy requirement.” Nieckula v. Menard, Inc., No. 13-CV-8302, 2014 

WL 12770069, at *2 (N.D. Ill. Feb. 24, 2014) (citing Herremans v. Carrera Designs, 

Inc., 157 F.3d 1118, 1121 (7th Cir. 1998)). But “[i]f the claims are alternative theories 

of recovery for the same injury, rather than separate claims for relief . . . aggregation 

is not appropriate.” Id. 

 Wee Care’s claim for declaratory relief (Count I) seeks a declaration, among 

other things, that it is entitled to coverage “for its past and future Business Income 

loss(es) and extra Expense resulting from COVID-19 and/or the Pandemic[.]” Compl. 

¶ 39(f). Its claim for breach of contract (Count II) seeks compensatory damages for 

West Bend’s alleged breach of “its obligations under the Policy by denying coverage 

to Wee Care for its loss of Business Income and Extra Expense.” Id. ¶ 43. Although 

Wee Care may not have specifically pleaded these two counts in the alternative, both 

claims seek compensation for the same injury: namely, the denial of coverage for 

business losses and extra expense stemming from the shutdown of Wee Care’s 

business because of the pandemic. Because Wee Care seeks to recover for the same 

injury under both counts, West Bend cannot aggregate the requests for damages 

under these counts to satisfy the amount-in-controversy requirement. See Holmes v. 

Boehringer Ingelheim Pharm., Inc., 158 F. Supp. 2d 866, 868 (N.D. Ill. 2001) (“Counts 

I and II of the plaintiff’s complaint therefore state different legal theories of recovery 

for the same injury, not separate claims for relief, and they cannot be aggregated to 

meet the jurisdictional amount of § 1332(a)”). 

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 Next, West Bend argues that the amount in controversy in an insurance case 

is not the amount of damages a plaintiff seeks, but instead the total value of the policy 

at issue. Dkt. 12 at 3. Because the total value of the Policy here is more than $75,000, 

West Bend argues, this case meets the amount-in-controversy threshold for 

jurisdiction under 28 U.S.C § 1332(a). Id. In support, West Bend relies upon a 

decision of the Illinois Appellate Court, Mohr v. Dix Mut. Cnty. Fire Ins. Co., 493 

N.E.2d 638, 643 (Ill. App. Ct. 1986). In Mohr, the Illinois court held that, where a 

plaintiff alleges that an insurance company failed to comply with the provisions of an 

insurance policy, the “measure of damages is usually limited to the contractual 

amount.” Id. (emphasis added). 

But here, unlike in Mohr, Wee Care does not seek coverage to the full limit of 

the Policy. Rather, Wee Care seeks coverage only under the Communicable Disease 

Coverage, which caps coverage for claimed losses at $50,000. Accordingly, the amount 

required to satisfy Wee Care’s demands in full is no more than $50,000. See Oshana, 

472 F.3d at 510-11. 

 Finally, West Bend argues that Wee Care seeks coverage under multiple 

provisions of the Policy—not just the Communicable Disease Coverage—and that the 

total relief sought under all provisions exceeds $75,000. Dkt. 12 at 3. Under West 

Bend’s reading of the Complaint, Wee Care demands “declarations which could result 

in damages well in excess of $50,000” and seeks coverage “under numerous coverage 

provisions—including Business Income, Civil Authority, and Extra Expense, that are 

not subject to the $50,000 per occurrence limit.” Id. 

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West Bend’s theories about the Policy provisions under which Wee Care could 

have sought coverage, however, do not refute that Wee Care made only a single claim 

under the Communicable Disease Coverage—and the allegations of the Complaint 

support this reading. Wee Care’s alleged losses stem only from, as Wee Care alleges, 

the “necessary suspension of all of [its] operations” following the Governor’s COVID19 guidance. Compl. ¶ 34. This suspension of operations, in turn, is what “trigger[ed] 

West Bend’s coverage responsibilities.” Id. 

 To be sure, the Complaint alleges that the Policy covers “property, business 

personal property, business income, extra expenses, contamination, civil authority 

and additional coverages applicable to the losses claimed in this action.” Id. ¶ 11 

(emphasis added). Although it is unclear what Wee Care meant by this allegation 

that “additional coverages” apply to its losses, the other allegations in the Complaint 

make clear that Wee Care’s alleged losses stem from a single occurrence (the March 

2020 shutdown of its operations caused by the COVID-19 pandemic) and that the only

provision of the Policy that would cover losses from that single occurrence (the 

Communicable Disease Coverage) limits coverage to $50,000. Accordingly, because it 

is a “ ‘legal certainty’ that the controversy’s value is below the threshold,” Meridian, 

441 F.3d at 541, West Bend has not met its burden of showing that what Wee Care 

could possibly “get out of the litigation” exceeds $75,000. Rising-Moore v. Red Roof 

Inns, Inc., 435 F.3d 813, 816 (7th Cir. 2006). As a result, this Court lacks subject 

matter jurisdiction. 

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IV. CONCLUSION 

 Because the Complaint does not put more than $75,000 at issue, the Court 

lacks jurisdiction to adjudicate this action. Accordingly, the case is remanded to the 

Circuit Court of Cook County, Illinois for further proceedings. 

SO ORDERED. 

 

Date: September 24, 2020 

 JOHN F. KNESS 

 United States District Judge 

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