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LESS INVASIVE, INC. et al v. ILLINOIS UNION 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: 
1:14-cv-22974 Search Pacer
ACE Group party(s): 
Opposing Party: 
Less Invasive, Inc.
Court Type: 
Federal
US District Court: 
Southern District of Florida
Date Filed: 
Aug 14 2014

NOTICE OF REMOVAL
Please take notice that Illinois Union Insurance Company ("Illinois Union") hereby
removes to this Court the state court insurance coverage action filed by Less Invasive, Inc. and
Elio Garcia ("Less Invasive and Garcia) in the Circuit Court of the Eleventh Judicial Circuit in
and for Miami-Dade County, Florida, on the grounds of diversity of citizenship pursuant to 28
U.S.C. §§ 1332, 1441 and 1446, and states as follows:
1. On September 30, 2013, Less Invasive and Garcia improperly filed a Third-Party
Complaint against Illinois Union seeking insurance coverage and declaratory relief (the
"Coverage Action") for claims alleged in a personal injury suit styled Sixto-Rodriguez, et al. v.
Mast Biosurgery Usa, Inc., in the Circuit Court of the Eleventh Judicial Circuit in and for
Miami-Dade County, Florida, Case No. 11-22646CA01 (08) (the "Liability Action"). See Ex. A,
at Tab 1.
2. Pursuant to Florida's Non-Joinder Statute, Fla. Stat. § 627.4136, on January 14,
2014, Illinois Union moved to sever the Coverage Action. Id. at Tab 3. The state court granted
Illinois Union's motion on July 15, 2014, ordering that "[t]he third-party coverage action by Less
Invasive and Garcia against Illinois Union is severed from the remainder of this action for all
purposes." See Ex. A, at Tab 20. Thus, the Coverage Action became removable for the first
time on July 15, 2014. See Sharp Gen. Contrs., Inc. v. Mt. Hawley Ins. Co., 471 F. Supp. 2d
1304 (S.D. Fla. 2007); 28 U.S.C. § 1446(b). Copies of all process, pleadings, orders and other
papers served upon Illinois Union in the state court as part of the Coverage Action are attached
as Composite Exhibit "A".
3. In the Liability Action, Plaintiffs, Dr. Susanna Sixto-Rodriguez and Dr. William
Rodriguez, assert various products liability and related tort claims against several defendants,
including Less Invasive and Garcia, seeking to recover unspecified damages for severe and
permanent personal injuries Plaintiffs allegedly sustained due to the various defendants'
wrongful conduct. Plaintiffs' claims are based upon several surgeries performed on Dr. Sixto-
Rodriguez, which involved the use of a product called SurgiWrap. Id. at Tab 1, §§ 7-8.
4. Less Invasive, Inc. is a corporation incorporated under the law of Florida and has
its principal place of business in the Broward County, Florida. Id. at Tab 1, § 3.
5. Garcia is a citizen of the state of Florida and a resident of Broward County,
Florida. Id. at Tab 1, § 2.
6. Illinois Union is a corporation incorporated under the laws of the state of Illinois
and has its principal place of business in the state of Pennsylvania.
7. Accordingly, for purposes of 28 U.S.C. § 1332, diversity of citizenship existed
between Less Invasive and Garcia and Illinois Union at the time Less Invasive and Garcia
commenced the Coverage Action in state court and continues to exist as of the time of filing this
notice of removal.
8. Further, removal pursuant to 28 U.S.C. § 1332 is proper because, based upon the
allegations of the Coverage Action and the severe and permanent injuries alleged in the Liability
Action, Illinois Union has a good faith belief that the amount in controversy exceeds the
jurisdictional threshold for diversity jurisdiction.
9. Illinois Union issued a Life Sciences Products-Completed Operations Liability
policy bearing policy number SPL G23855677 003 (the "Policy") to Mast Biosurgery USA, Inc.,
a company organized under the laws of Delaware with its principal place of business in San
Diego, California. See Ex. A, at Tab 1, Ex. C.
10. Through the Coverage Action, Less Invasive and Garcia seek coverage under the
Policy for the defense of the Liability Action as well as indemnity for any judgment entered
against Less Invasive and Garcia in the Liability Action. Id. at Tab 1, §§ 7-8. Illinois Union
Insurance Company has agreed to provide a defense to Less Invasive and Garcia under a
reservation of rights. However, this action remains pending and Illinois Union is exercising its
right to remove in an abundance of caution.
11. Venue is proper in this district pursuant to 28 U.S.C. section 1391(a) although
Illinois Union reserves the right to seek transfer to a different venue and more convenient forum.
12. A copy of this Notice will be promptly filed with the Clerk of the Circuit Court of
the Eleventh Judicial Circuit in and for Miami-Dade County, Florida.
WHEREFORE, Illinois Union hereby removes the Coverage Action to this Court.

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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