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

SIMS ET AL v. POLASEK et al

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Case Number: 
2:13-cv-06621 Search Pacer
ACE Group party(s): 
Opposing Party: 
Tina Sims
Court Type: 
Federal
US District Court: 
Eastern District of Louisiana
Date Filed: 
Dec 11 2013

NOTICE OF REMOVAL
THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA:
NOW INTO COURT, through undersigned counsel, come Defendants, David M.
Polasek, Werner Enterprises, Inc. and ACE American Insurance Company, who with respect
represent:
1.
On October 17, 2013, Plaintiffs, Tina Sim and Rosalie K. Arnone, filed a Petition for
Damages against David M. Polasek, Werner Enterprises, Inc. and ACE American Insurance
Company, in the 21st Judicial District Court for the Parish of Tangipahoa, State of Louisiana, in
the cause entitled "Tina Sims, eta/. V. David M. Polasek, eta/.," and bearing Docket No. 2013-
0003239, Division "C,"a copy of which is attached hereto as Exhibit 1.
Plaintiffs requested service of process on David M. Polasek through Long-Arm Service,
and the state court record currently contains no return of service.
3.
Plaintiff requested service of process on Werner Enterprises, Inc. through its registered
agent for service of process, and this company was served on October 25, 2103.
4.
Plaintiff requested service of process on ACE American Insurance Company through the
Louisiana Secretary of State, and this company was served on October 29, 2013.
5.
As undersigned counsel will represent all Defendants to this action, once properly served,
all Defendants agree to removal of Plaintiff s lawsuit to the United States District Court for the
Eastern District of Louisiana.
6.
La. C.C.P. art. 893 specifically prohibits the pleading of the amount of monetary damages
sought, and Plaintiffs Petition for Damages did not set forth the specific amount of damages
sought. However, Plaintiffs Petition for Damages does not comply with the Louisiana Code of
Civil Procedure. More specifically, the Petition for Damages is deficient in that it did not
contain a general allegation that the claims were more or less than the requisite amount for
federal court diversity jurisdiction, as is specifically required by Art. 893 of the Louisiana Code
of Civil Procedure.
7.
Plaintiffs Petition neither set forth the general allegation as to whether their claims were
more or less than the requisite amount for federal court diversity jurisdiction as La. C.C.P.
Article 893 requires. Nor was it facially apparent from plaintiffs' Petition that the requisite
amount in controversy for federal court diversity jurisdiction existed. Accordingly, the
undersigned counsel requested that plaintiffs counsel provide any information which would
indicate the nature and extend of the alleged injuries arising from the subject accident, including
but not limited to the medical records of treatment the plaintiff received as a result of the injuries
allegedly sustained thereby.
8.
On November 19, 2013, for the first time, undersigned counsel received medical records
of the plaintiffs treatment allegedly associated with this accident from plaintiffs counsel, which
revealed the following information:
9.
Plaintiff, Tina Sims did undergo an anterior cervical discectomy and fusion at vertebral
levels C3/4, C4/5 and C5/6, on July 18, 2013, at which time an interbody structural cage and
cervical plates were placed at those same levels. (An Operative Report detailing that procedure
is attached hereto as Exhibit 2.)
10.
In addition, Paragraphs 10 and 11 of the Plaintiffs' Petition for Damages further alleged
that Sims and Arnone, respectively, suffered damages including:
Physical pain and suffering, past and future, resulting from the collision
Medical expenses, both past and future
Mental Anguish and distress, past and future
Loss of enjoyment of life
Loss Wages, both past and future
Impairment of Wage Earning Capacity
11.
Based upon the medical records forwarded by plaintiffs counsel, and upon the admission
of plaintiff s counsel, it reasonably appears that the damages claimed by the Plaintiff, Tina Sims,
may exceed the sum of $75,000, exclusive of interest and costs. Louisiana courts have held that
damages in cases with injuries similar to those of Tina Sims have exceeded this amount. For
example, despite pre-existing back problems, a plaintiff was awarded $250,000.00 in general
damages after undergoing a lumbar fusion, and then a second lumbar surgery due to an infection
to the same disc area. Meyer V. Tufaro, 934 So.2d 861 (La. App. 4th Cir. 6/7/06). Another
plaintiff was awarded $350,000.00 in general damages after undergoing surgery to repair a
herniated disc, and with her doctor's testimony that a second surgery would be required. Wood
v. American National Property & Casualty Co., l So.3d 764 (La. App. 3rd Cir. 12/23/08).
12.
Based upon the allegations set forth by Plaintiffs in their Petition for Damages and the
medical records received, Defendants aver that the damages claimed by the Plaintiff, Tina Sims,
might exceed the sum of $75,000, exclusive of interest and costs.
13.
Defendants further submit that, should it be determined that the amount in controversy
concerning the claims of Tina Sims exceeds $75,000, but that the claims of Rosalie K. Arnone
do not, then pendent party jurisdiction before this Court is appropriate.
14.
This Notice of Removal is, therefore, filed within thirty days of receipt of the first paper
from which it could be ascertained that the case was removable, on November 19, 2103.
15.
Plaintiff, Tina Sims, is alleged in the Petition for Damages to be a resident and citizen of
the State of Louisiana.
16.
Plaintiff, Rosalie K. Arnone, is alleged in the Petition for Damages to be a resident and
citizen of the State of Louisiana.
17.
Defendant, David K. Polasek, is alleged in the Petition for Damages to be a resident of
the State of Texas.
18.
Defendant, Werner Enterprises, Inc., is alleged in the Petition for Damages to be a
foreign corporation.
19.
Defendant, ACE American Insurance Company, is alleged in the Petition for Damages to
be, and is in fact, a foreign insurance company.
20.
Accordingly, there exists complete diversity between all plaintiffs and all defendants. As
of the date of this filing of this Notice of Removal, plaintiff has not named any other defendants.
21.
In accordance with the foregoing, this is a civil action over which this court has original
jurisdiction pursuant to 28 U.S.C. § 1332(a), and is one which may be removed to this court by
defendants pursuant to 28 U.S.C. § 1441 in that it is a civil action wherein the matter in
controversy exceeds $75,000, exclusive of interest and costs, and is between citizens of different
states.
22.
In accordance with 28 U.S.C. § 1446(d), Defendants will provide appropriate notice of
this removal to Plaintiffs and to the Clerk of Court for the Civil District Court for the Parish of
Orleans, State of Louisiana.
JURY DEMAND
Defendants are entitled to and request a trial by jury on all issues herein.
WHEREFORE Defendants, David M. Polasek, Werner Enterprises, Inc. and ACE
American Insurance Company, pray that the action filed in the 21st Judicial District Court for the
Parish of Tangipahoa, State of Louisiana, in the cause entitled "Tina Sims, et a/. V. David M.
Polasek, et a/.," and bearing Docket No. 2013-0003239, Division "C," be removed from that
state court docket to the United States District Court for the Eastern District of Louisiana.

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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