United States District Court, D. New Mexico
ANNE SPERLING, as Conservator of JONATHAN BOTELLO, and LORENZA BOTELLO, Plaintiffs,
COMMUNITY INSURANCE GROUP SPC, LTD., ALL WORLD ASSURANCE COMPANY, LTD., ADMIRAL INSURANCE COMPANY, STEADFAST INSURANCE COMPANY, ENDURANCE SPECIALTY INSURANCE LTD., ILLINOIS UNION INSURANCE COMPANY, and SWISS RE INTERNATIONAL SE, Defendants.
MEMORANDUM OPINION AND ORDER ON PLAINTIFFS'
MOTION TO REMAND
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Plaintiffs' Motion
to Remand [Doc. 13], filed August 29, 2019. Plaintiffs
brought this case to recover a judgment from a previous
trial. Plaintiffs' motion raises the question of whether
Defendants' removal of this case was proper.
1, 2019, Plaintiffs filed their complaint against Defendants
in the First Judicial District Court of Santa Fe County, New
Mexico. Doc. 1-2 at 5. Defendants Admiral Insurance Company,
Endurance Specialty Insurance Ltd., Illinois Union Insurance
Company, and Steadfast Insurance Company then removed the
case on diversity grounds to this Court on August 7, 2019.
Doc. 1. Defendant Swiss Re International SE consented to the
removal. Doc. 1-9 at 2. Defendants Allied World Assurance
Company, Ltd. (AWAC) and Community Insurance Group SPC,
Ltd. (CIG) did not. Doc. 1 at 5-6. As a result, Plaintiffs
filed the subject motion to remand the case.
statutes are to be strictly construed, and all doubts are to
be resolved against removal.” Fajen v. Found.
Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982)
(citations omitted). “[A]ny civil action brought in a
State court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United States
for the district . . . embracing the place where such action
is pending.” 28 U.S.C. § 1441(a). However,
“all defendants who have been properly joined and
served must join in or consent to the removal of the
action.” Id. § 1446(b)(2)(A). AWAC and
CIG did not join or consent to the removal. The removing
Defendants, however, argue AWAC and CIG's consent was not
required because they were improperly joined and were not
served. Doc. 24 at 8.
removing Defendants argue AWAC and CIG were improperly joined
because they are nominal parties with which Plaintiffs have
no controversy. Id. at 8-13. They explain there is
no controversy because AWAC and CIG have agreed or offered to
pay their policy limits. The removing Defendants rely on
Gonzales v. Goodyear Tire & Rubber Co., No. CV
05-0941 BB/LFG, 2006 WL 8444552 (D.N.M. Jan. 25, 2006), for
the proposition that once an insurance company has offered
the maximum amount of recovery under their policy, there is
no controversy between the plaintiff and the insurance
company. In Gonzales, however, it was
“undisputed . . . that the insurer ha[d] offered to pay
the policy limits to Plaintiff.” Id. at *3
(citing a letter from the claims adjuster offering to settle
for policy limits). It is not undisputed here.
is no evidence of a firm offer like in Gonzales, and
although there is promise of an agreement between Plaintiffs
and AWAC, one was not reached by the August 7, 2019 removal.
email from AWAC to Plaintiffs' counsel on August 6, 2019
makes this clear:
I am writing to memorialize our agreement whereby you, as
counsel for plaintiffs in the referenced matter, agreed to
extend [AWAC's] time in which to answer or otherwise
respond to the complaint for a period of 30 days from today
in return for [AWAC's] agreement to take no action with
respect to the lawsuit, other than to work with you
towards payment of the remaining [AWAC] policy limits
($50, 000) upon which you will dismiss [AWAC] with prejudice
from the lawsuit and fully release it from any obligation
with respect to the underlying claim.
Doc. 13-1 at 6 (emphasis added). The same can be
said for CIG. On August 2, 2019, CIG's counsel sent an
email to Plaintiffs' counsel stating: “we will
continue to work towards resolution.” Id. at
removing Defendants, however, argue that CIG offered its
policy limits at the trial and that their offer has not been
revoked. Doc. 1 at 5-6. Context matters. The offer they are
referring to was made while the jury was deliberating and was
to settle all claims against the defendant. It was not an
offer to pay CIG's policy limits in this case. Doc. 13 at
16. The removing Defendants have not shown that AWAC and CIG
are nominal parties and, as such, improperly joined.
removing Defendants argue Plaintiffs did not properly serve
AWAC or CIG prior to removal because they did not comply with
New Mexico's service requirements for unauthorized
insurers. Doc. 24 at 14-16. It is not clear from the
record whether AWAC and CIG are unauthorized insurers, but
this issue over whether AWAC or CIG are unauthorized insurers
is not relevant to the Court's decision. All insurers who
conduct business in New Mexico, whether authorized or
unauthorized, must consent to the New Mexico Superintendent
of Insurance as an agent for service of process. N.M. Stat.
Ann. §§ 59A-5-31 (“Appointment of
Superintendent as Process Agent”) and 59A-15-6
(“Superintendent is Attorney of Unauthorized Insurer
for Service of Process”).
Superintendent of Insurance issued “Acceptance of
Service” certificates confirming both AWAC and CIG were
served prior to the August 7, 2019 removal:
I, John G. Franchini, Superintendent of Insurance of the
State of New Mexico, do hereby certify that a copy of a
Complaint, Summons, CD, check was served on AllWorld Assurance Company on 7/8/2019 as provided in
Section 59A-5-31 and 59A-5-32 NMSA 1978, and was received
by said ...