# Masouras v. Lexington

> District Court, M.D. Florida · January 24, 2020

URL: https://www.frixlaw.com/law-library/cases/10104381

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 24, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

PANAGIOTIS M. MASOURAS and
TROY L. SHELL,

Plaintiffs,

v. Case No.: 2:19-cv-848-FtM-38MRM

LEXINGTON INSURANCE COMPANY,

Defendant.
/

OPINION AND ORDER1
Before the Court is Plaintiff Panagiotis Masouras and Troy Shell’s Motion to
Remand. (Doc. 11). Defendant Lexington Insurance Company filed a Response in
Opposition. (Doc. 24). For the reasons below, the Motion is granted.
BACKGROUND
In this insurance coverage dispute Plaintiffs claim that Lexington acted in bad faith
under §§ 624.155, and 626.9541 Fla. Stat. (Doc. 9 at 1). Years ago, Plaintiffs obtained
a homeowner’s insurance policy from Lexington. (Doc. 9 at 2). The policy was in effect
when Hurricane Irma blew through Florida and damaged Plaintiffs’ home. (Doc. 9 at 2).
Coverage was not disputed but the parties could not agree on the cost to repair the
damage. (Doc. 9 at 2). After more than a year of back and forth with Lexington over price
estimates and partial payments, Plaintiffs filed a one-count Complaint for bad faith in state

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the
Court does not endorse, recommend, approve, or guarantee any third parties or the services or products
they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s
availability and functionality, and a failed hyperlink does not affect this Order.
court. (Doc. 9 at 2-6). Then, Lexington removed the case to this Court, citing diversity
jurisdiction. (Doc. 1 at 2).
DISCUSSION
A defendant may remove any civil action from state to federal court over which the
federal court has original jurisdiction. 28 U.S.C. § 1441(a). Such original jurisdiction

includes cases where there is complete diversity of citizenship among the parties, and
the amount in controversy exceeds $75,000, exclusive of interest and costs. See 28
U.S.C. § 1332(a); Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000).
When scrutinizing the amount in controversy requirement, a court “focuses on how much
is in controversy at the time of removal, not later.” Pretka v. Kolter City Plaza II, Inc., 608
F.3d 744, 751 (11th Cir. 2010) (citation omitted). When damages are not specified in the
complaint, “the removing party bears the burden of establishing the jurisdictional amount
by a preponderance of the evidence.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1208
(11th Cir. 2007) (citation omitted). “Because removal jurisdiction raises significant

federalism concerns, federal courts are directed to construe removal statutes strictly” and
resolve “all doubts about jurisdiction… in favor of remand to state court.” Univ. of S. Ala.
v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (citation omitted).
Here, the parties agree that there is complete diversity of citizenship, but Plaintiffs
argue that Lexington has not met the amount in controversy requirement. (Doc. 11 at 2).
Lexington offers three theories to bring the case up to the required $75,000. First, that
Plaintiffs’ potential attorney’s fees recovery should be included. (Doc. 24 at 2). Second,
that Plaintiffs may receive consequential and punitive damages if they win. (Doc. 24 at
2). And finally, that Plaintiffs sent a pre-suit demand that well-exceeds the $75,000 bar.
(Doc. 24 at 2-3). Although Plaintiffs’ Complaint is for an unspecified amount, in moving
to remand Plaintiffs provide a detailed list of “extra-contractual damages” totaling
$41,816.74 that had been incurred at the time of removal:
Attorney’s fees paid in underlying claim $26,344.48
Expert costs paid in underlying claim $2,627.50
Appraisal fees $5,973.44
Unpaid mold damages $1,698.24
Prejudgment interest on the foregoing $5,173.08
TOTAL $41,816.74

(Doc. 11 at 2). The amounts are supported by the Affidavit of Panagiotis M. Masouras
(Doc. 11-1). Although labeled as a list of “extra-contractual damages,” the list clearly
includes a prejudgment interest amount of $5,173.08, which is not included in determining
the amount in controversy. See 28 U.S.C. § 1332(a).
A. Attorney’s Fees
The Eleventh Circuit has not directly answered whether the amount of anticipated
fees in a removal case go toward the amount in controversy and district courts are split.
Iglesia La Nueva Jerusalem, Inc. v. Ohio Sec. Ins. Co., No. 618CV1813ORL28KRS, 2019
WL 479673, at *2 (M.D. Fla. Feb. 7, 2019). However, the general consensus among the
federal district courts in Florida is that only attorney’s fees accrued at the time of removal
go toward the amount in controversy. Id. (collecting cases). As the court in Iglesia said,
“there is no reason to deviate from the general rule that in a removed case the amount in
controversy is determined as of the time of removal, to include a highly speculative
amount of attorney’s fees estimated through trial.” Id. at *3. The Court sees no need to
deviate as well. See also Waltemyer v. Northwestern Mutual Life Ins. Co., No. 2:06-cv-
597-FtM-29DNF, 2007 WL 419663, at *2 (M.D. Fla. Feb. 2, 2007) (noting in a removal
case that “subsequent matters which affect the amount in controversy will not retroactively
establish jurisdiction”); Poudy v. Texas Roadhouse Management Corp., No. 2:17-cv-715-
FtM-99CM, 2018 WL 495343, at *3 (M.D. Fla. Jan. 22, 2018).
Therefore, in line with the majority of Florida federal district courts, only attorney’s
fees accrued at the time of removal go toward the amount in controversy. Here, Lexington

provided nothing in its Notice of Removal, or its Response to the Motion to Remand, to
show that Plaintiffs’ attorneys’ fees at the time of removal meet the amount in controversy
requirement and Defendant otherwise provides no estimate of fees accrued as of the date
of removal. However, the Court will consider the amount of attorney’s fees that Plaintiffs
admits had accrued as of the time of removal ($26,344,48).
B. Consequential Damages
Plaintiffs’ Complaint alleges the following damages: appraisal fees, lost income,
unpaid mold damages, loss of use of money, loss of time and expenses, and
consequential damages caused by the wrongful adjustment, delay, and improper

handling of their claim. (Doc. 9 at ¶ 57). The Eleventh Circuit requires that when a
complaint omits a specific alleges as to the damages amount (as in this case), “the
removing defendant must prove by a preponderance of the evidence that the amount in
controversy is adequate.” Roe v. Michelin North America, Inc., 613 F.3d 1058, 1063 (11th
Cir. 2010). Defendant may meet its burden “by establishing that it is ‘facially apparent’
that the claims probably exceed $75,000.” Id. Defendant has failed to meet its burden
here. Defendant provides the Court with no information to determine what the
consequential damages in this case could be, leaving the Court with nothing but
speculation.
Lexington’s conclusory statements that the jurisdictional amount is satisfied is not
enough. The Complaint generally lists categories of damages, but it does not support
these general allegations with specific facts, injuries, jobs, careers, or dollar amounts.
Plaintiff does admit to certain amounts it incurred as of the date of removal that could be
considered “damages” - the mold amount ($1,698.24), as well as “expert costs”

($2,627.50) and “appraisal fees.” ($5,973.44) for a total of $10,299.18. But it is not entirely
clear that these amounts would qualify as damages and even if the Court assumes that
they are, the total, plus the amount of attorney’s fees as discussed above ($26,344,48),
would not reach the jurisdictional threshold.
C. Punitive Damages
As for punitive damages, Florida’s insurance code allows for the recovery of
punitive damages only when an insurance company’s bad faith actions were willful,
malicious, or reckless towards the rights of the policyholder. See Fla. Stat. § 155(5).
Punitive damages must be considered when determining the amount in controversy. See

Rae v. Perry, 392 F. App’x 753, 755 (11th Cir. 2010) (citing Holley Equip. Co. v. Credit
Alliance Corp., 821 F.2d 1531, 1535 (11th Cir. 1987)).
However, again, Defendant provides the Court with no information to assess what
amount of punitive damages could be awarded in this case and the Court will not
speculate as to a large punitive damages award when Defendant has made no argument
in support. See Lowery, 483 F.3d at 1215 (“The absence of factual allegations pertinent
to the existence of jurisdiction is dispositive and, in such absence, the existence of
jurisdiction should not be divined by looking to the stars.”).
C. Pre-Suit Demand
Reaching Lexington’s final argument, when a pre-suit demand letter is devoid of
facts, the claim may be considered merely as posturing. Zabic v. Verizon Wireless
Services, LLC, No. 8:15-CV-2565-T-33AEP, 2015 WL 9267693, at *5 (M.D. Fla. Dec. 19,
2015) (finding the amount in controversy was not satisfied despite the plaintiff’s settlement

offer of $2 million because the offer contained no tangible supporting proof). Conversely,
when a pre-suit settlement offer provides a detailed account of the damages sought, a
court will likely consider that as evidence of meeting the amount in controversy. Middleton
v. State Farm Mut. Auto. Ins. Co., No. 3:11-CV-1052-J-37JBT, 2012 WL 230025, at *3
(M.D. Fla. Jan. 25, 2012) (finding the amount in controversy was satisfied based on a
settlement offer letter that specifically detailed the plaintiff’s injuries along with past and
future medical expenses).
Here, Lexington does not attach the pre-suit demand letter to its Notice of Removal
or to its Response to the Motion to Remand because the letter was confidential. (Doc.

24 at 2). Lexington has not otherwise requested to supplement its Notice of Removal
with the letter. Therefore, the only information before the Court is Lexington’s assertion
that the demand was well in excess of $75,000. (Doc. 24 at 2). Because a settlement
offer greater than the jurisdictional requirement alone is not enough, and given the lack
of supporting proof, Lexington’s argument fails on this ground. At bottom, Lexington has
not shown by a preponderance of the evidence that the amount in controversy
requirement is satisfied.
D. Plaintiffs’ Costs and Expenses
Plaintiffs seek to recover their reasonable costs and expenses in responding to
Defendant’s Notice of Removal pursuant to 28 U.S.C. § 1447(c) (“An order remanding
the case may require payment of just costs and any actual expenses, including attorney
fees, incurred as a result of the removal.”). The decision of whether to award attorney’s

fees under § 1447(c) lies at the Court’s discretion. Liebig v. DeJoy, 814 F. Supp. 1074,
1077 (M.D. Fla. 1993) (internal citations omitted). The Supreme Court clarified the
standard for awarding attorney’s fees in removal cases, stating that “absent unusual
circumstances, courts may award attorney's fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for seeking removal. Conversely,
when an objectively reasonable basis exists, fees should be denied.” Martin v. Franklin
Capital Corp., 546 U.S. 132, 141 (2005).
The Court finds based upon the briefing submitted to the Court that Defendant had
an objectively reasonable basis for seeking removal in this case. Therefore, Plaintiffs’

request for removal costs and expenses is denied.
Accordingly, it is now
ORDERED:
1. Plaintiff Panagiotis Masouras and Troy Shell’s Motion to Remand (Doc. 11) is
GRANTED and this matter is REMANDED.
2. The Clerk is directed to remand this case to the Circuit Court of the Twentieth
Judicial Circuit in and for Collier County, Florida, and to transmit a certified copy
of this Opinion and Order to the Clerk of that Court.
3. The Clerk is directed to CLOSE this case, deny as moot all pending motions,
and terminate all deadlines.
DONE and ORDERED in Fort Myers, Florida on this 23rd day of January 2020.

Lhe atrrthe 7
UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104381. Public record. Not legal advice.