VIRGINIA EMERSON HOPKINS, United States District Judge.
Plaintiff Glen L. Brawley ("Dr. Brawley") originally filed this insurance action
Dr. Brawley's lawsuit contains 6 separate counts. Count One is for breach of contract against Northwestern only. Count Two is for fraud in the inducement against all three Defendants. Count Three is for negligent and/or wanton training and supervision against Dr. Wright and Northwestern. Count Four is for suppression against all three Defendants. Count Five is for bad faith against Northwestern. Finally, Count Six is for negligent procurement and failure to notify against Messrs. Kerr and Wright.
Northwestern removed this litigation to this Court on September 6, 2017, asserting diversity under 28 U.S.C. § 1332 as the basis for federal jurisdiction. (Doc. 1 at 1). Critical to its Notice of Removal on diversity grounds, Northwestern contends that Messrs. Kerr and Wright have been fraudulently joined by Dr. Brawley and, as a result, their presence in the lawsuit cannot defeat jurisdiction under § 1332. (Doc. 1 at 4 ¶ 11). Consistent with Northwestern's fraudulent joinder allegations, Messrs. Kerr and Wright have filed a Motion To Dismiss (doc. 8) (the "Dismissal Motion"). Dr. Brawley opposed the Dismissal Motion on October 6, 2017. (Doc. 12).
The Court also has before it Dr. Brawley's Motion To Remand (doc. 11) (the "Remand Motion") filed on October 6, 2017. Northwestern filed its opposition (doc. 17) to Dr. Brawley's Remand Motion on October 27, 2017, and Dr. Brawley followed with his reply (doc. 18) on November 10, 2017. Because the Court concludes that Messrs. Kerr and Wright have been fraudulently joined, complete diversity does exist in this case. Consequently, the Remand Motion is
Dr. Brawley asserts that Mr. Kerr "was a special agent of Northwestern, and subject to the control of both Northwestern and [Mr.] Wright." (Doc. 1-1 at 9 ¶ 4). Mr. Wright "was the Northwestern general agent responsible for training, supervision and conduct of Special Agent [Mr.] Kerr." (Id. ¶ 3).
Dr. Brawley purchased his first disability policy from Northwestern through an agent other than Mr. Kerr or Mr. Wright. (Doc. 1-1 at 9 ¶ 7). That first policy, number D-216-477, was issued on April 10, 1981 (the "1981 Policy").
Dr. Brawley claims that Mr. Kerr "represented to [him] that Northwestern's policies were the top of the line and true `own occupation' policies in the sense that [Dr. Brawley] would receive disability benefits if he could not perform, on a full time basis, the primary activities of his specific specialty (orthodontics) — that is, the physical activities performed by orthodontists on a routine and daily basis (i.e., bending wire)[.]" (Doc. 1-1 at 10 ¶ 10). This assurance was vital to [Dr. Brawley] because he was developing a very demanding and successful specialty practice...." (Id. at 10-11 ¶ 10).
Mr. Kerr recommended that Dr. Brawley purchase a second Northwestern disability policy. (Doc. 1-1 at 11 ¶ 11). Dr. Brawley agreed and the second policy, number D-560360, was issued on November 10, 1987 (the "1987 Policy"). Id. The 1987 Policy "remained in full force and effect until April 10, 2017, long after [Dr. Brawley] became disabled." Id.
In December of 1989, Mr. Kerr and Dr. Brawley met again to discuss Dr. Brawley's disability insurance needs. (Doc. 1-1 at 11 ¶ 12). Because Dr. Brawley's "practice-based income had increased," Mr. Kerr recommended a corresponding adjustment to Dr. Brawley's monthly benefit. Id. Mr. Kerr further indicated that the proposed policy was "virtually identical to his previous Northwestern policies in terms of its definition of `total disability.'" Id. Dr. Brawley accepted Mr. Kerr's recommendation and the third policy, number D-727-724, was issued on January 10, 1990 (the "1990 Policy"). Id. The 1990 Policy "remained in full force and effect until April 10, 2017, long after [Dr. Brawley] became disabled." (Id. at 12 ¶ 12).
In March of 2002, Mr. Kerr and Dr. Brawley met again to discuss Dr. Brawley's disability insurance needs. (Doc. 1-1 at 12 ¶ 13). Because of the continued growth of Dr. Brawley's practice, Mr. Kerr again recommended a corresponding adjustment of Dr. Brawley's monthly benefit, but this time he proposed that Mr. Kerr purchase two policies. Id. Mr. Kerr "confirmed that the policies he was recommending were essentially the same as the prior policies." Id. "Again, [Dr. Brawley] accepted [Dr.] Kerr's recommendation and "the fourth and fifth policies, numbers D1-451-476 and D1-451-480, were issued on March 10, 2002 (the `476 Policy' and `480 Policy' respectively, and collectively, the `2002 Policies')." (Id. at 12 ¶ 14). The 2002 Policies "remained in full force and effect until April 10, 2017, long after [Dr. Brawley] became disabled." Id.
"Based on [Mr.] Kerr's representation that the two new policies were essentially the same as the three previous policies, and the relationship of trust [that] had developed between [Dr. Brawley] and [Mr.] Kerr over the years,
The new provision stated that:
(Id. at 13 ¶ 15).
Concerning Dr. Brawley's purchase of the multiple Northwestern policies, Dr. Brawley further asserts:
(Doc. 1-1 at 12-15 ¶¶ 13-17).
"On February 5, 2013, [Dr. Brawley] was involved in a brush saw accident" and suffered a severe injury of his right hand that required surgery. (Doc. 1-1 at 15 ¶ 19). Due to the work-related impact of this injury, Dr. Brawley filed a disability claim with Northwestern on February 21, 2013, under all of five policies. (Id. at 20 ¶ 34).
As for the claims process, Dr. Brawley alleges that Northwestern first denied his claim for disability benefits on February 25, 2015 (doc. 1-1 at 21 ¶ 40), but that he appealed that denial on March 20, 2015. (Id. ¶ 41). The record confirms that Northwestern's February 25, 2015, correspondence advised Dr. Brawley that he had a 30-day window to file an appeal:
(Doc. 1-2 at 126).
In Dr. Brawley's appeal letter,
(Doc. 1-1 at 21 ¶ 41 (footnote omitted)).
After sending Northwestern confirmation "to move forward" on April 29, 2015, Dr. Brawley allegedly made "numerous phone calls seeking information about the status of his appeal[.]" (Doc. 1-1 at 21 ¶ 42). "Northwestern did not respond to [Dr. Brawley] until December 23, 2015, approximately eight months after his appeal was filed" and "reiterated Northwestern's claim denial...." (Id. at 21-22 ¶ 42).
Subsequent to receiving the December notice denying his appeal, Dr. Brawley "submitted a 3-page letter to Northwestern, along with a new Request for Disability Benefits under all five of his Northwestern disability policies" on March 27, 2016. (Doc. 1-1 at 22 ¶ 43). Northwestern followed with a letter on June 15, 2016, "den[ying] any disability benefits to [Dr. Brawley]." (Id. ¶ 44 (emphasis omitted)).
Dr. Brawley "continued pursuing his appeals and making numerous phone calls to Northwestern to determine its final decision." (Id. ¶ 45). At some point after a telephone conversation with Northwestern
"It is by now axiomatic that the inferior courts are courts of limited jurisdiction. They are `empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution,' and which have been entrusted to them by a jurisdictional grant authorized by Congress." Univ. of S. Ala. v. The Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). "Accordingly, `[w]hen a federal court acts outside its statutory subject-matter jurisdiction, it violates the fundamental constitutional precept of limited federal power.'" Univ. of S. Ala., 168 F.3d at 409 (quoting Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 216 (5th Cir. 1998) (en banc) (citing another source), reversed on other grounds by Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588, 119 S.Ct. 1563, 1572, 143 L.Ed. 2d 760 (1999)). "Simply put, once a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue." 168 F.3d at 410.
"A necessary corollary to the concept that a federal court is powerless to act without jurisdiction is the equally unremarkable principle that a court should inquire into whether it has subject matter jurisdiction at the earliest possible stage in the proceedings." Id. "Indeed, it is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking." Id. (citing Fitzgerald v. Seaboard Sys. R.R., 760 F.2d 1249, 1251 (11th Cir. 1985) (per curiam)).
Additionally, "[t]he jurisdiction of a court over the subject matter of a claim involves the court's competency to consider a given type of case, and cannot be waived or otherwise conferred upon the court by the parties. Otherwise, a party could `work a wrongful extension of federal jurisdiction and give district courts power the Congress denied them.'" Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 1000-01 (11th Cir. 1982) (quoting Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 18, 71 S.Ct. 534, 542, 95 S.Ct. 702 (1951)) (internal footnote and citation omitted). Furthermore, "[b]ecause removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly." Univ. of S. Ala., 168 F.3d at 411 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 S.Ct. 1214 (1941)).
Lastly, Congress has decreed and the Supreme Court has confirmed that — with the limited exceptions of lawsuits brought against federal officers or agencies (28 U.S.C. § 1442) and civil rights cases (28 U.S.C. § 1443) that have been removed — orders of remand by district courts based upon certain grounds, including in particular those premised upon lack of subject matter jurisdiction, are entirely insulated from review. More specifically, § 1447(d) provides:
28 U.S.C. § 1447(d) (emphasis added); see also Kircher v. Putnam Funds Trust, 547 U.S. 633, 642, 126 S.Ct. 2145, 2154, 165 L.Ed.2d 92 (2006) (recognizing that
Northwestern premises its removal upon this Court's diversity jurisdiction. "Diversity jurisdiction exists where the suit is between citizens of different states and the amount in controversy exceeds the statutorily prescribed amount, in this case $75,000." Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001) (citing 28 U.S.C. § 1332(a)). Therefore, removal jurisdiction based upon diversity requires: (1) complete diversity of citizenship between the plaintiff(s) and the defendant(s); and (2) satisfaction of the amount-in-controversy requirement.
Diversity jurisdiction "requires complete diversity — every plaintiff must be diverse from every defendant." Palmer v. Hosp. Auth., 22 F.3d 1559, 1564 (11th Cir. 1994). "Citizenship, not residence, is the key fact that must be alleged in the complaint to establish diversity for a natural person." Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). Although Dr. Brawley has sued fictitious parties, "[f]or purposes of removal ... the citizenship of defendants sued under fictitious names shall be disregarded." 28 U.S.C. § 1441(b)(1).
The dispute over satisfaction of the citizenship requirement in this case has to do with whether Dr. Brawley has fraudulently joined the non-diverse Defendants, Messrs. Kerr and Wright. "[W]hen there is no possibility that the plaintiff can prove a cause of action against the resident (non-diverse) defendant[,]" fraudulent joinder is established. Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). Relatedly, if fraudulent joinder is established, then the resident defendant is subject to dismissal as a party and its citizenship is disregarded for diversity requirement purposes. See id.
The Eleventh Circuit extensively addressed diversity-based removal when the removing party maintains that a non-diverse defendant has been fraudulently joined in Crowe v. Coleman, 113 F.3d 1536 (11th Cir. 1997). There the court stated:
The standard is onerous because, absent fraudulent joinder, a plaintiff has the absolute right to choose his forum. That is, courts must keep in mind that the plaintiff is the master of his complaint and has the right to choose how and where he will fight his battle. As Crowe further recognized:
Crowe, 113 F.3d at 1538.
To establish fraudulent joinder of a resident defendant, the burden of proof on the removing party is a "heavy one[,]" see Crowe, 113 F.3d at 1538 (internal quotation marks omitted) (quoting Miller Brewing, 663 F.2d at 549), requiring
Crowe, 113 F.3d at 1538 (emphasis added).
In a later fraudulent joinder decision, the Eleventh Circuit elaborated:
Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1380-81 (11th Cir. 1998) (emphasis added); see also Tillman v. R.J. Reynolds Tobacco, 340 F.3d 1277, 1279 (11th Cir. 2003) ("[I]f there is a possibility that a state court would find that the complaint states a cause of action against any of the resident defendants, the federal court must find that the joinder was proper and remand the case to state court.").
Against the foregoing backdrop, the Court now addresses the application of the fraudulent joinder standard to this case. The Court begins with Northwestern's rule-of-repose contentions.
Northwestern's opening position in opposition to the Remand Motion is that the rule of repose precludes all of Dr. Brawley's fraud and negligence claims against Messrs. Kerr and Wright connected to his 1987 and 1990 Policies. (Doc. 17 at 11).
As explained in Am. Gen. Life & Acc. Ins. Co. v. Underwood, 886 So.2d 807 (Ala. 2004), Alabama's rule of repose
Underwood, 886 So.2d at 812.
The Supreme Court of Alabama further made clear in Underwood that, for tort claims tied to insurance policies
886 So.2d at 813 (emphasis added).
Dr. Brawley paid monthly premiums on his 1987 and 1990 Policies and did not initiate his lawsuit until August 1, 2017. Because well over 20 years elapsed between the payment of his first monthly
In reply, Dr. Brawley does not substantively challenge Northwestern's straightforward invocation of the rule of repose or its establishment of fraudulent joinder as to these particular tort claims. Instead, Dr. Brawley points out that any claims attributable to the 2002 Policies are not subject to the rule of repose:
(Doc. 18 at 1-2 ¶ 2).
Therefore, on the basis of the rule of repose, the Court finds that Dr. Brawley has no possible (or arguable) claim against Messrs. Kerr and Wright with respect to either the 1987 Policy or the 1990 Policy. Accordingly, the Court turns its focus to the viability of Dr. Brawley's tort claims against these resident Defendants with respect to the 2002 Policies.
Northwestern relies upon the seminal case of Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala. 1997), and contends that any fraud claims brought against Messrs. Kerr and Wright under the 2002 Policies are time-barred under Ala. Code § 6-2-38. (Doc. 17 at 13). Section 6-2-38 establishes a two-year statute of limitations period for fraud claims. See Ala. Code § 6-2-38(l) ("All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years."); see also Ala. Code § 6-2-3 ("In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.").
In Foremost, the Alabama Supreme Court fundamentally modified the reliance standard for fraud claims. More specifically, the Foremost court retreated from a subjective viewpoint of justifiable reliance as previously adopted by Hickox v. Stover, 551 So.2d 259 (Ala. 1989), and returned to an objective one of reasonable reliance as "most closely associated with Torres v. State Farm Fire & Casualty Co., 438 So.2d 757 (Ala. 1983)." Foremost, 693 So.2d at 421; see id. (overruling Hickox, "to the extent that it changed the law of fraud as it had existed prior there to" and "return[ing] to the reasonable reliance standard").
Of particular concern to the Foremost court in returning actionable fraud to a pre-Hickox standard was Hickox's "eliminat[ion] [of] the general duty on the part
Relatedly, the Foremost formulation impacted the accrual period for fraud:
Owens v. Life Ins. Co. of Georgia, 289 F.Supp.2d 1319, 1325 (M.D. Ala. 2003) (footnote omitted); see also Foremost, 693 So.2d at 421 (overruling Hicks v. Globe Life & Acc. Ins. Co., 584 So.2d 458 (Ala. 1991), "to the extent that it changed the standard that had previously existed for determining the statute of limitations issue in fraud cases"); Foremost, 693 So.2d at 438 ("With respect to the statute of limitations for a fraud claim, the `reasonable reliance' standard
Consistent with the foregoing framework, Northwestern argues that "the limitations period on [Dr. Brawley]'s fraud claims began to run when he received a copy of his policies." (Doc. 17 at 15). Absent the application of an exception to the Foremost accrual rule, that would mean the statute of limitations for Dr. Brawley's fraud claims that are based on his 2002 Policies ran on March 10, 2004.
Indeed, as Northwestern points out, several district courts have applied similar limitations-based reasoning in concluding that the insurance agent who the plaintiff sued for fraud was fraudulently joined. See, e.g., Bullock v. United Ben. Ins. Co., 165 F.Supp.2d 1255, 1258 (M.D. Ala. 2001)(finding "no possibility that Plaintiff can establish a cause of action [for fraud] against [the individual defendant]" due to expiration of the 2-year limitations period before commencing lawsuit); Fowler v. Provident Life & Accident Ins. Co., 256 F.Supp.2d 1243, 1249 (N.D. Ala. 2003) (finding fraudulent joinder because "under the Foremost rule, the plaintiff should have discovered the possibility of fraud and misrepresentation in 1992 when she purchased the policy, and the two year statute of limitations commenced running at that time"); Owens, 289 F.Supp.2d 1319, 1326 (finding fraudulent joinder due to expiration of the statute of limitations period when "Plaintiff should have discovered the possibility of fraud and misrepresentation in 1984 when he purchased the Policy"); cf. also Waldrup v. Hartford Life Ins. Co., 598 F.Supp.2d 1219, 1228 (N.D. Ala. 2008) (determining concealment allegations to be inadequate to invoke Ala. Code § 6-2-3 (the savings provision for fraud) and finding "no possibility that plaintiffs could escape the bar of the statute of limitations").
In reply, Dr. Brawley does not discuss any of these on-point insurance fraud cases. He instead cites to Mattox v. State Farm Fire & Cas. Co., No. CA 12-0192-KD-C, 2012 WL 3870392 (S.D. Ala. Aug. 15, 2012), report and recommendation adopted, No. CIV. A. 12-0192-KD-C, 2012 WL 3870495 (S.D. Ala. Sept. 6, 2012), as a countervailing authority. (Doc. 18 at 2-3 ¶ 3). The problem with Dr. Brawley's misguided reliance upon Mattox is that he
2012 WL 3870392, at *18 (emphasis added).
Dr. Brawley additionally argues that ambiguity in policy language means that "there is at lease some possibility" that his fraud claims are not time-barred by Foremost. (Doc. 18 at 3 ¶ 4). Dr. Brawley is correct that the Foremost accrual rule is not absolute. As another judge sitting in this district has observed:
Fowler, 256 F.Supp.2d at 1248 (emphasis added).
In his reply, Dr. Brawley also cites to the non-insurance case of Potter v. First Real Estate Co., 844 So.2d 540 (Ala. 2002), and argues that a special relationship exception precludes application of the Foremost accrual rule, even though he never read the 2002 Policies. (Doc. 18 at 4-6 ¶¶ 5-6). More specifically, Dr. Brawley states:
(Doc. 18 at 5-6 ¶ 6 (emphasis added)).
The problem with this argument is that the Alabama Supreme Court rendered the Potter special-relationship exception inapplicable to the very type of fraud claims asserted by Dr. Brawley here:
AmerUs Life Ins. Co. v. Smith, 5 So.3d 1200, 1210 (Ala. 2008) (emphasis added). While Dr. Brawley asserts that "it is possible that an Alabama state court would find that [his] reliance on [Mr.] Kerr's added assurances about the 2002 Policies was reasonable, despite his failure to read [them]" (doc. 18 at 6 ¶ 6), he offers no Alabama authority in which AmerUs's holding has been distinguished and/or Potter's holding has been applied to a fraud claim against an insurance agent.
Thus, the Court agrees with Northwestern that Dr. Brawley's fraud claims against Messrs. Kerr and Wright under the 2002 Policies are time-barred and that no exceptions possibly apply.
Northwestern similarly maintains that Dr. Brawley's negligence claims under the 2002 Policies against Messrs. Kerr and Wright are time-barred by a two-year statute of limitations period. (Doc. 17 at 29); see also Henson v. Celtic Life Ins. Co., 621 So.2d 1268, 1274 (Ala. 1993) ("The statutory period of limitations for negligence and wantonness actions, found at Ala. Code
Concerning negligent training and supervision, Dr. Brawley relies upon Mr. Wright's actions that took place in 2002. Therefore, Northwestern contends that the limitations period for that count expired in 2004. (Doc. 17 at 29); see also Booker v. United Am. Ins. Co., 700 So.2d 1333, 1339 (Ala. 1997) (finding negligent or wanton supervision claim time-barred when latest negligent act took place in May 1991 and lawsuit was not filed until August 1993 "— over two years after [the plaintiffs'] claims accrued[.]"). Northwestern makes a similar untimeliness argument about Dr. Brawley's negligent procurement (and failure to notify)
In support of these negligence claims, Dr. Brawley maintains that he was not "damaged by either act of negligence" until Northwestern finally denied his appeal on February 16, 2017. (Doc. 11 at 20).
The limitations analysis of Dr. Brawley's negligent procurement count is less straightforward. Dr. Brawley alleges that he "advised [Mr.] Kerr ... that he wished to obtain true `own occupation' disability insurance coverage to protect him in the event that he became unable to perform the primary activity of his specialty." (Doc. 1-1 at 33 ¶ 72). Dr. Brawley further asserts that he "relied on the expertise and judgment of [Messrs.] Kerr, [and] Wright... in purchasing the type of disability coverage that he needed, and monitoring the status of the coverage, the carrier providing coverage, and the carrier's claim practices." Id.
Northwestern relies upon the Rule 12(b)(6) case of Toffel v. Nationwide Mut. Ins. Co., No. 2:15-CV-01669-KOB, 2016 WL 4271837, at *1 (N.D. Ala. Aug. 15, 2016), to show that Dr. Brawley can establish no cause of action for negligent procurement against Messrs. Kerr and Wright due to its staleness. In Toffel, the district court summarized the accrual standard for negligent procurement:
2016 WL 4271837, at *6.
Against this legal backdrop, the Toffel court found the statute of limitations
2016 WL 4271837, at *6-7 (emphasis by underlining added) (citation omitted).
Based upon the reasoning in Toffel, Northwestern contends that because it initially denied Dr. Brawley's disability claim on February 25, 2015, Dr. Brawley's negligent procurement claim expired on February 25, 2017, as a matter of law. (Doc. 17 at 30). Northwestern further maintains that the untimeliness of this claim is without any uncertainty such that the demanding fraudulent joinder standard applies to it.
However, factually absent from Toffel is any indication that the finality of the denial of that insurance claim was impacted by the claimant's right (and decision) to appeal. Also, the denial letter that appears in that record does not include any language regarding a right to appeal. See Toffel, No. 2:15-CV-1669-KOB, (Doc. 9-1 at 15-21) (N.D. Ala. Oct. 9, 2015).
Moreover, when the accrual of Dr. Brawley's negligent procurement claim is measured by the date on which Northwestern first denied his appeal — December 23, 2015 (or any date after that) — then the Complaint filed in this action August 1, 2017 predates the applicable 2-year statute of limitations period (which expired at the earliest on December 23, 2017). While an Alabama court might ultimately agree with Northwestern's position that Dr. Brawley's negligent procurement claim accrued on the earlier date of February 25, 2015, despite his appeal, none of the cases that Northwestern cites establishes such an unambiguous holding under Alabama law. (See Doc. 18 at 7 ¶ 7 ("Even if the Court rejects that position, and finds that Brawley should have discovered the fraud prior to the final denial, it would nevertheless have been reasonable for [Dr.] Brawley to not suspect foul play until December 23, 2015, the date upon which Northwestern denied the appeal invited by its February 25, 2015 letter.")). Further, the Eleventh Circuit law on fraudulent joinder leaves no room for doubt that any state-law legal uncertainties are to be resolved in Dr. Brawley's favor. See Pacheco, 139
However, Northwestern alternatively maintains that Dr. Brawley's tort claims against Messrs. Kerr and Wright are non-cognizable because he had a duty to read his 2002 Policies under Foremost (and its progeny) and has admitted in his complaint that he never did. (Doc. 17 at 32); (see Doc. 1-1 at 12 ¶ 15 ("[Dr. Brawley] did not compare the exact language of the two new policies with that of the three previous policies.")).
Concerning Dr. Brawley's negligence claims more specifically, Northwestern states that his contributory negligence bars them all as a matter of law:
(Doc. 17 at 33-34).
The Court is persuaded by Northwestern's alternative position (that includes several decisions by the undersigned) and
Therefore, as explained above, Northwestern has clearly and convincingly satisfied the fraudulent joinder standard. Consequently, disregarding the Alabama citizenship of Messrs. Kerr and Wright is appropriate and exercising diversity jurisdiction over this removed action is proper. Accordingly, Dr. Brawley's Remand Motion is
Further, for the same reasons set out in this opinion, Dr. Brawley has no possible claims against Messrs. Kerr and Wright. Accordingly, their Dismissal Motion is
In any event, the vaguely defined term of "total disability" analyzed in Giddens is significantly different than unambiguous provision included in the 2002 Policies by Northwestern. Compare Giddens, 445 F.3d at 1297 (explaining that "the Policies define `Total Disability' as the inability to `engage in the substantial and material duties of your regular occupation'" and finding that such language is ambiguous because it "does not say `all' substantial and material duties or `most' or any percentage"), with Doc. 1-1 at 13 ¶ 15 (explaining that in the 2002 Policies if "the Insured can perform
