Avery v. GEICO Advantage Insurance Company

CourtDistrict Court, W.D. Washington
DecidedJanuary 23, 2023
Docket2:22-cv-01766
StatusUnknown

This text of Avery v. GEICO Advantage Insurance Company (Avery v. GEICO Advantage Insurance Company) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avery v. GEICO Advantage Insurance Company, (W.D. Wash. 2023).

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 DIANNA AVERY, CASE NO. C22-1766 MJP 11 Plaintiff, ORDER GRANTING MOTION TO REMAND 12 v. 13 GEICO ADVANTAGE INSURANCE COMPANY, 14 Defendant. 15

16 This matter comes before the Court on Plaintiff’s Motion to Remand. (Dkt. No. 4.) 17 Having reviewed the Motion, Defendant’s Response (Dkt. No. 8), the Reply (Dkt. No. 10), 18 Defendant’s “Supplemental Response” (Dkt. No. 11), and all supporting materials, the Court 19 GRANTS the Motion and REMANDS this matter to King County Superior Court. 20 BACKGROUND 21 Plaintiff Dianna Avery has filed suit against her insurer, GEICO Advantage Insurance 22 Company, alleging that it improperly handled her claim for the diminished value of her vehicle. 23 GEICO removed the matter, asserting that the Court has diversity jurisdiction under 28 U.S.C. § 24 1 1332, because there is complete diversity and the amount in controversy exceeds $75,000. (Not. 2 of Removal (Dkt. No. 1).) Avery admits there is complete diversity, but challenges GEICO’s 3 assertion that the amount in controversy exceeds $75,000. 4 As Avery notes, the complaint does not establish the full amount in controversy with any

5 specificity. The complaint states that Avery filed a claim with her insurer, GEICO, for 6 $17,365.68 to cover the cost of repairs to her vehicle resulting from a collision caused by an 7 underinsured motorist. (Compl. ¶¶ 5.3-5.7.) GEICO paid this claim. (Id. ¶ 5.7.) Avery also filed a 8 claim with GEICO for the diminished value of her vehicle, which she initially claimed was 9 $7,981.22. (Id. ¶ 5.11.) GEICO refused to pay this sum, offering only $6,000, even after Avery 10 reduced her demand to $7,228.11. (Id. ¶¶ 5.14, 5.17-5.19.) The Parties were unable to resolve the 11 dispute, and Avery filed this lawsuit, alleging claims of: (1) breach of contract, (2) violations of 12 the Consumer Protection Act, (3) bad faith, and (4) violations of the Insurance Fair Conduct Act. 13 In opposing the motion to remand, GEICO argues that the amount in controversy exceeds 14 $75,000 based on its calculation of damages and fees. GEICO seizes on Avery’s pre-suit demand

15 of $17,253.47, which included not just the diminished value, but also various sums related to loss 16 of use, a diminution report fee, noneconomic damages, and other non-specific fees. (See Dkt. 17 No. 1-2 at 82.) GEICO then contends that because Avery has sought treble damages under IFCA 18 and the CPA (which is subject to a $25,000 cap) the amount exceeds $75,000. (See Resp. at 4-6.) 19 GEICO also posits that the general damages for Avery’s bad faith will be between $50,000 and 20 $100,000 and that the same range applies to her demand for attorneys’ fees. (Id. at 2.) In its 21 “Supplemental Response,” GEICO claims that the amount in controversy is at least $200,000 22 because Avery has transmitted a settlement offer—subject to ER 408—which offers to resolve 23 the dispute for $200,000. (See Supp. Resp. (Dkt. No. 11).)

24 1 ANALYSIS 2 A. Legal Standard 3 A defendant may remove an action filed in state court if the federal district court would 4 have had original jurisdiction over the action. 28 U.S.C. § 1441(a). The party seeking removal

5 bears the burden of establishing federal jurisdiction by a preponderance of the evidence. Durham 6 v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006); Guglielmino v. McKee Foods 7 Corp., 506 F.3d 696, 699 (9th Cir. 2007). Federal courts strictly construe the removal statute and 8 must reject jurisdiction if there is any doubt as to the right of removal in the first instance. See 9 Hawaii ex rel. Louie v. HSBC Bank Nev., N.A., 761 F.3d 1027, 1034 (9th Cir. 2014); Gaus v. 10 Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). When “it is unclear from the face of the complaint 11 whether the amount in controversy exceeds $75,000, the removing defendant bears the burden of 12 establishing, by a preponderance of the evidence, that the amount in controversy exceeds the 13 jurisdictional threshold.” Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 416 (9th Cir. 2018) 14 (quotation omitted). “In assessing the amount in controversy, we may consider allegations in the

15 complaint and in the notice of removal, as well as summary-judgment-type evidence relevant to 16 the amount in controversy.” Id. And any doubts as to the right of removal must be resolved in 17 favor of remanding to state court. See Durham, 445 F.3d at 1252. 18 B. Removal was Improper 19 The Court agrees with Avery that the removal was improper because the amount in 20 controversy has not been shown to exceed $75,000. 21 GEICO has failed to meet its burden to demonstrate by a preponderance of the evidence 22 that the amount in controversy exceeds $75,000. See Chavez, 888 F.3d at 416. The Complaint 23 identifies Avery’s highest demand for unpaid diminished value to be $7,981.22. If successful,

24 1 Avery’s IFCA and CPA claims could entitle her to treble damages, which would total 2 $23,943.66 per claim or $47,887.32 in total. But GEICO has failed to prove by a preponderance 3 that the remaining damages and attorneys’ fees would exceed $27,112.68. Counsel for GEICO 4 declares her belief that the attorneys’ fees would range between $50,000 and $100,000 and that

5 the bad faith damages would range from $50,000 to $100,000. (See Declaration of Isabella M. 6 Foxen ¶¶ 2-3 (Dkt. No. 9).) But the declaration lacks specificity and substance. Counsel cites her 7 three years of experience and her consultation with other attorneys in her firm who have more 8 experience. But declaration fails to explain why this specific case—one with a very simple fact 9 pattern and what appears to be a minimal dispute in the correct diminished value—would 10 demand significant attorney resources or would call for significant bad faith damages. The 11 declaration also fails to cite to any other specific cases that presented similar facts that might 12 suggest the attorneys’ fees and other damages might exceed $27,112.68. Here, the Court must 13 resolve its doubt about the amount in controversy in favor of remanding to state court. See 14 Durham, 445 F.3d at 1252. The Court finds that GEICO has failed to present sufficient evidence

15 that the amount exceeds $75,000. 16 The Court is also unconvinced by GEICO’s argument that it should use Avery’s pre-suit 17 demand of $17,253.47 as the base calculation of damages. The pre-suit demand itself included a 18 variety of different kinds of financial demands, including fees, loss of use, and non-economic 19 damages. GEICO has failed to show that these amounts are recoverable or would be subject to 20 treble damages under the CPA or IFCA. 21 The Court also rejects GEICO’s argument that Avery’s settlement offer confirms the 22 amount in controversy is at least $200,000. First, GEICO’s “Supplemental Response” is an 23 improperly-filed surreply. Surreplies are “strictly limited to addressing the request to strike”

24 1 portions of a reply, and the moving party must provide notice of intent to file the surreply. Local 2 Rule 7(g).

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Related

Guglielmino v. McKee Foods Corp.
506 F.3d 696 (Ninth Circuit, 2007)
Gonzales v. Texas
546 U.S. 20 (Supreme Court, 2006)
Hawaii Ex Rel. Louie v. HSBC Bank Nevada, N.A.
761 F.3d 1027 (Ninth Circuit, 2014)
Durham v. Lockheed Martin Corp.
445 F.3d 1247 (Ninth Circuit, 2006)
Elsa Chavez v. Jpmorgan Chase Bank
888 F.3d 413 (Ninth Circuit, 2018)

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Avery v. GEICO Advantage Insurance Company, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avery-v-geico-advantage-insurance-company-wawd-2023.