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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

JOINT POWERS TRUST v. WESTCHESTER FIRE INSURANCE COMPANY

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
4:13-cv-00038 Search Pacer
ACE Group party(s): 
Opposing Party: 
Joint Powers Trust
Court Type: 
Federal
US District Court: 
District of Montana
Date Filed: 
May 8 2013

"1. This Is a Notice of Removal Based on Diversity of Citizenship for an Action Pending in the District Court of the Tenth Judicial District of the State of Montana, in and for the County of Fergus.  Westchester is the named defendant in a civil action filed in the District Court of the Tenth Judicial District Court in and for Fergus County, styled Joint Powers Trust v. Westchester Fire Insurance Company, Cause number DV-13-24 (the "State Court Action"). A copy of the Complaint is attached as Exhibit A, it is also attached to the Declaration of Allan H. Baris ("Declaration") as Exhibit B.

2. The Insurance Commissioner Was Served on April 8, 2013 and Served Westchester by mailing on April 12, 2013. Plaintiff, Joint Powers Trust ("Joint Powers") served Westchester with the Complaint via statutory service of process on the Montana Commissioner of Securities and Insurance (the "Insurance Commissioner") on April 12, 2013. Exhibit A to Declaration. A copy of the Complaint in the State Court Action received by the Insurance Commissioner is attached as Exhibit B to the Declaration of Allan H. Baris. The Insurance Commissioner received the Summons and Complaint on April 8,2013 and mailed it to Westchester on April 12,2013. Exhibits C and A to the Declaration. Montana Code Annotated § 33-1-603 provides that upon receiving service, the Insurance Commissioner should promptly forward a copy to the insurer to receive service. Section 331-603(3), MCA provides that "[P]rocess served upon the commissioner and a copy of the process forwarded [. . .1 constitutes service of process upon the insurer." (underline added). Westchester actually received the Summons and Complaint from the Insurance Commissioner on April 17, 2013. Exhibit A to the Declaration. Removal is thus timely under 28 U.S.C. § 1446(b) because less than 30 days have passed since service of the Summons and Complaint upon Westchester.

3. The State Court Action Concerns an Amount in Controversy in Excess of $75,000, and Involves a Plaintiff and Defendant of Diverse Citizenship.

The State Court Action is a civil action over which this Court has original jurisdiction under 28 U.S.C. § 1332, and is one which may be removed to this court by Defendant Westchester pursuant to 28 U.S.C. § 1441(b) because it is a civil action between citizens of different states and the matter in controversy exceeds the sum of $75,000, exclusive of interest and costs.

A. Westchester Has a Good Faith Basis to Believe that the Plaintiff is Seeking Damages of at Least $163,398.49. Plaintiff alleges that Westchester is responsible for payment of $163,398.49 in defense fees and costs that Joint Powers has incurred to date in defending an action brought against it by Kent D. Roose and filed with the District Court on October 22, 2009. Complaint, Exhibit A, p. 3 fl 16. Joint Powers alleges that Westchester issued to it two policies of insurance that obligate Westchester indemnify and defend Joint Powers from the claims and damages resulting from the litigation commenced by Mr. Roose against Joint Powers. Id. at p. 3 U 18. Plaintiff alleges that it is entitled to reimbursement of all of its expenses and damages relating to the litigation, pursuant to the terms of the insurance coverage provided by Westchester to Joint Powers. Id. at p. 4 U 19. Additionally, Joint Powers seeks (1) judgment against Westchester for special, general, and compensatory damages, (2) attorney's fees and costs as allowed by law and under Mountain West Farm Bureau Company v. Brewer, 2003 MT 98, 315 Mont. 231,69 P.3d 52, and (3) punitive damages. Id. at p. 6 fflj 1-3. Accordingly, Joint Powers has asserted claims well in excess of the jurisdictional amount of $75,000.

B. Plaintiff Is a Citizen of Montana, Whereas Defendant Is a Citizen of Pennsylvania. Westchester is informed and believes that Plaintiff Joint Powers is a Montana non-profit group health benefits trust, which maintains its principal place of business in Billings, Montana. Complaint, Exhibit A, p. 1 H 1 Westchester is also informed and believes that each of its trustees, Donald Rieger, Carol Brooker, Paddy Trusler, Lesley Robinson, and Sandra Boardman are citizens of Montana. Exhibit D to the Declaration. Plaintiff provides benefits to members in Montana and Wyoming. Complaint, Exhibit A, p. 11J1. Westchester is incorporated in Pennsylvania and maintains its principal place of business in Philadelphia, Pennsylvania. Exhibit E to the Declaration. The parties are diverse in citizenship because neither party is a citizen of the same state as the other. The lone defendant, Westchester, is not a citizen of Montana, the state in which this action was filed. See 28 U.S.C. § 1441 (a)(2). Accordingly, the diversity requirements for removal are met.

4. Westchester Will Timely Notify the State Court of this Removal. Pursuant to 28 U.S.C. § 1446(d) and D. Mont. L.R. 3.3(a), within seven (7) days after filing its Notice of Removal with this Court, Westchester will promptly file a copy of its Notice of Removal in the State Court Action."

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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