Indemnity Ins. Co. of North America v. Silver

Second Circuit

Indemnity Ins. Co. of North America v. Silver

177 F.2d 803, 1949 U.S. App. LEXIS 3287

CourtCourt of Appeals for the Second Circuit

DecidedNovember 7, 1949

DocketNo. 50, Docket 21416

StatusPublished

This text of 177 F.2d 803 (Indemnity Ins. Co. of North America v. Silver) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Indemnity Ins. Co. of North America v. Silver, 177 F.2d 803, 1949 U.S. App. LEXIS 3287 (2d Cir. 1949).

Pincite

Opinion

FRANK, Circuit Judge.

Five days before this action was begun, defendant reduced her claim against plaintiff so that the sum demanded was less than the jurisdictional amount. The unmistakable purpose of the reduction was either to prevent removal of a state-court action defendant intended to bring, or to prevent plaintiff’s bringing an action of the type we have here. Consequently, should defendant assert a claim for attorney’s fees in any state-court action, plaintiff will have available a perfect defense of estoppel. For there was here an assertion by defendant and a deprivation—of the right to trial in the federal courts—to plaintiff. Caldwell v. Nelson Morris & Co., 120 La. 879, 45 So. 927, 15 L.R.A., N.S., 423, 124 [804]*804Am.St.Rep. 446, 14 Ann.Cas. 1043; Buehler v. Philadelphia & R. Ry. Co., 280 Pa. 92, 124 A. 325. This being so, defendant’s announcement to plaintiff’s representative that she was abandoning her claim was sufficient to reduce the sum in controversy below the jurisdictional amount, and the district court should have granted defendant’s motion for summary judgment.

Reversed.

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FRANK, Circuit Judge.

Five days before this action was begun, defendant reduced her claim against plaintiff so that the sum demanded was less than the jurisdictional amount. The unmistakable purpose of the reduction was either to prevent removal of a state-court action defendant intended to bring, or to prevent plaintiff’s bringing an action of the type we have here. Consequently, should defendant assert a claim for attorney’s fees in any state-court action, plaintiff will have available a perfect defense of estoppel. For there was here an assertion by defendant and a deprivation—of the right to trial in the federal courts—to plaintiff. Caldwell v. Nelson Morris & Co., 120 La. 879, 45 So. 927, 15 L.R.A., N.S., 423, 124 [804]*804Am.St.Rep. 446, 14 Ann.Cas. 1043; Buehler v. Philadelphia & R. Ry. Co., 280 Pa. 92, 124 A. 325. This being so, defendant’s announcement to plaintiff’s representative that she was abandoning her claim was sufficient to reduce the sum in controversy below the jurisdictional amount, and the district court should have granted defendant’s motion for summary judgment.

Reversed.

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Bluebook (online)

177 F.2d 803, 1949 U.S. App. LEXIS 3287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indemnity-ins-co-of-north-america-v-silver-ca2-1949.

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