United States District Court, E.D. Kentucky, Southern Division, Pikeville
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
matter is before the Court on the Plaintiff's motion to
remand to the Pike County Circuit Court. (DE 7). For the
following reasons, the motion is GRANTED.
action was filed in the Pike County Circuit Court in January
of 2018, when the Plaintiff Tiffany Puckett sued Defendants
American Wholesale Furniture, Roberto Coto, and Kentucky Farm
Bureau Mutual Insurance Company seeking to recover damages
sustained in a car wreck, which was allegedly caused by
Roberto Coto. (DE 1-1 at 3). At the time of the accident,
Coto was driving a car owned by American Wholesale Furniture,
his employer. Id. at 4. Puckett seeks relief against
both of those parties based on theories of negligence and
respondeat superior. Id. at 3-5, 6.
Puckett's claim against Kentucky Farm Bureau Mutual
Insurance Company, however, is based on her underinsured
motorist insurance policy with the Bureau, which she retained
for her own protection in cases where she might be injured by
an underinsured driver. Id. at 5-6.
American Wholesale Furniture and Coto removed this matter
from the Pike County Circuit Court to this Court pursuant to
28 U.S.C. § 1332(a) in May of 2018. They cited the
allegedly fraudulent joinder of Defendant Kentucky Farm
Bureau Mutual Insurance Company as grounds for the removal,
noting that both Defendants American Wholesale Furniture and
Coto are citizens of Indiana, while Puckett is a citizen of
Kentucky, and that the amount in controversy exceeds $75,
000.00. (DE 1 at 4 ¶ 13-6 ¶ 23). In support of
their fraudulent joinder claim, Defendants American Wholesale
Furniture and Coto claim that it is implausible that Puckett
could recover more than the combined policy limits of their
insurance policies, so there cannot be a colorable claim
against Defendant Kentucky Farm Bureau Mutual Insurance
Company. Id. at 6 ¶ 23-7 ¶ 25. Puckett
refutes this analysis, noting that the proper inquiry is not
“whether [the plaintiff] will actually reach the policy
limits provided by [the defendants], the question is whether
[the plaintiff] states a claim at all.” (DE 15 at 2
(quoting Webb v. Simpkins Mine Supply, Inc., et al.,
7:07-cv-13-GFVT, at 6 (E.D. Ky. Sep. 27, 2007)).
28 U.S.C. § 1441(a), a defendant may remove a case to
federal court if the matter might have originally been
brought there. In evaluating a motion to remand, the burden
rests with the defendant to prove that this Court has
original jurisdiction. Eastman v. Marine Mech.
Corp., 438 F.3d 544, 549 (6th Cir. 2006). Original
jurisdiction exists through either diversity of citizenship,
see 28 U.S.C. §§ 1332(a) and 1441(b), or
federal question jurisdiction, see 28 U.S.C.
§§ 1331 and 1441(a). When doubts as to the
appropriateness of removal exist, “the removal statute
should be strictly construed and all doubts resolved in favor
of remand.” Eastman, 438 F.3d at 550.
as grounds for removal, Defendants American Wholesale
Furniture and Coto allege that Defendant Kentucky Farm Bureau
Mutual Insurance Company was fraudulently joined to prevent
removal, and that the diversity of citizenship and amount in
controversy requirements are otherwise satisfied. (DE 1).
Fraudulent joinder of a local party “will not defeat
removal on diversity grounds.” Saginaw Housing
Com'n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir.
2009) (quoting Coyne v. Am. Tobacco Co., 183 F.3d
488, 493 (6th Cir. 1999)). Joinder of a party is fraudulent
“when the non-removing party joins a party against whom
there is no colorable cause of action.” Id.
The burden of proof rests with the removing party, who must
show that the non-removing party could not have established a
cause of action under state law against the non-diverse party
that was joined. Coyne, 183 F.3d at 493. In
reviewing such a claim, this Court must resolve “all
disputed questions of fact and ambiguities in the controlling
state law in favor of the non-removing party [and] [a]ll
doubts as to the propriety of removal are resolved in favor
of remand.” Id. (quoting Alexander v.
Electronic Data Sys. Corp., 13 F.3d 940, 949 (6th Cir.
central inquiry here is whether Puckett has stated a viable
claim against Kentucky Farm Bureau Mutual Insurance Company.
Christensen v. ATS, Inc., 24 F.Supp.3d 610, 612
(E.D. Ky. 2014). If so, the diversity requirement is not
satisfied, and this case must be remanded to state court.
Id.; 28 U.S.C. §§ 1332(a). “It is
not the role of the Court  to determine as a matter of law
if Plaintiff can prevail at this point in the litigation . .
. . Rather, this Court must examine the pleadings for
allegations, which, if proven, would provide a reasonable
basis for a finding of liability against [Defendant].”
Sprowls v. Oakwood Mobile Homes, Inc., 119 F.Supp.2d
694, 697 (W.D. Ky. 2000).
law is clear that Puckett may pursue a claim against Kentucky
Farm Bureau Mutual Insurance Company regardless of her
recovery against Defendants American Wholesale Furniture and
Coto. Ky. Rev. Stat. Ann. § 304.39-320(5); Coots v.
Allstate Ins. Co., 853 S.W.2d 895, 901 (Ky. 1993).
Moreover, the amount of damages sought to be recovered in
relation to Defendants American Wholesale Furniture's and
Coto's policy limits is not dispositive of whether an
independent claim exists against Kentucky Farm Bureau Mutual
Insurance Company. Ky. Rev. Stat. Ann. § 304.39-320(5)
(noting that a plaintiff may settle for less than the policy
amounts provided by the tortfeasor's insurance company
and go on to pursue a separate claim against the underinsured
motorist coverage carrier). In Kentucky, an underinsured
motorist coverage carrier “may be sued without first
obtaining a judgment against the uninsured motorist, or
without the uninsured motorist being party to the suit . . .
. [C]overage exists without regard to whether the obligation
of the tortfeasor can be reduced to judgment.”
Coots, 853 S.W.2d at 898 (citing First Nat'l
Ins. Co. v. Harris, 455 S.W.2d 542 (Ky. 1970) and
Puckett v. Liberty Mut. Ins. Co., 477 S.W.2d 811
(Ky. 1971)). And, notably, a plaintiff may bring claims
against both the tortfeasor and an underinsured motorist
coverage carrier in the same proceeding. Id.; see, e.g.,
Earl v. Cobb, 156 S.W.3d 257, 261 (Ky. 2004) This is so
because “[t]he UIM carrier and the tortfeasor are
codebtors in solido,' i.e., they are jointly and
severally liable for damages recoverable as a result of the
tortfeasor's negligence.” Cincinnati Ins. Co.
v. Samples, 192 S.W.3d 311, 315 (Ky. 2006).
such, here, it is clear that Puckett has stated a plausible
cause of action against Kentucky Farm Bureau Mutual Insurance
Company. Defendants American Wholesale Furniture's and
Coto's arguments about damages are not dispositive. The
issue is whether a viable claim may exist against Kentucky
Farm Bureau Mutual Insurance Company. Such a claim exists
regardless of whether Puckett recovers an amount less than or
exceeding the policy limits of American Wholesale Furniture
and Coto. See Ky. Rev. Stat. Ann. §
304.39-320(3); Coots, 853 S.W.2d at 902.
Puckett may or may not be successful in her claim against
Kentucky Farm Bureau Mutual Insurance Company. This, however,
would be a question of merits, which is not pertinent here.
“If a plaintiff has even a ‘glimmer of hope,'
then any charge of fraudulent joinder fails, and the Court
must remand the case to state court for want of subject
matter jurisdiction.” Christensen v. ATS,
Inc., 24 F.Supp.3d 610, 613 (E.D. Ky. 2014) (quoting
Murriel-Don Coal Co. v. Aspen Ins. UK Ltd., 790
F.Supp.2d 590, 594 (E.D. Ky. 2011)). Accordingly, pursuant to
28 U.S.C. § 1447(d), IT IS ORDERED as
Plaintiff Tiffany Puckett's motion to remand, ...