Opinion

Four Blind Mice v. Certain Underwriters at Lloyd's, London

Court
District Court, E.D. Louisiana
Filed
Jul 23, 2024
Cited by
0 cases
Authority
More cited than 31.4%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FOUR BLIND MICE d/b/a THE DELACHAISE, CIVIL ACTION

et al.

VERSUS CASE NO. 23-4508

CERTAIN UNDERWRITERS AT LLOYD’S, SECTION: “G”

LONDON

ORDER AND REASONS

Before the Court is Defendant Certain Underwriters at Lloyd’s, London’s (“Underwriters”)

Motion to Dismiss for Lack of Subject Matter Jurisdiction.1 Underwriters argue that this matter

should be dismissed for lack of subject matter jurisdiction because there is no possibility that the

amount in controversy will exceed $75,000 for each Name subscribing to the policy.2 In

opposition, Plaintiffs Four Blind Mice d/b/a The Delachaise and Hayes Holdings (collectively

“Plaintiffs”) argue that the amount in controversy is met based on the syndicates listed in the

insurance policy.3 Considering the motion, the opposition, the applicable law, and the record, the

Court finds that Plaintiffs have failed to establish the amount in controversy exceeds $75,000 for

each Name subscribing the policy, and thus, the Court grants Underwriters’ motion.

I. Background

Plaintiffs owned properties located at 3442 St. Charles Ave., New Orleans, Louisiana

70115 and 7708 Maple St., New Orleans, Louisiana 70118 (“the Properties”).4 The properties were

1 Rec. Doc. 15.

2 Id.

3 Rec. Doc. 18.

4 Rec. Doc. 1 at 3.

insured with Underwriters bearing policy number 731460 (“the Policy”).5 On August 29, 2021,

Hurricane Ida made landfall causing damages to the properties.6 The complaint alleges that despite

receiving sufficient proof of loss, Underwriters failed to timely and adequately tender payment

under the policy.7 Plaintiffs state that the policy provided coverage for all the damages sustained

to the properties.8 Plaintiffs allege that Underwriters have acted in violation of Louisiana Revised

Statute §§ 22:1892 and 22:1973.9

On August 26, 2023, Plaintiffs filed a complaint against Underwriters in this Court.10 The

complaint states that this Court has subject matter jurisdiction over this matter pursuant to 28

U.S.C. § 1332(a)(1).11 On May 30, 2024, Underwriters filed the instant Motion to Dismiss for

Lack of Subject Matter Jurisdiction.12 On June 18, 2024, Plaintiffs filed an opposition to the

motion.13 On June 21, 2024, Underwriters filed a reply brief.14

II. Parties’ Arguments

A. Underwriters’ Arguments in Support of the Motion

Underwriters argue that this case should be dismissed for lack of subject matter

5 Id.

6 Id.

7 Id.

8 Id. at 4.

9 Id.

10 Id.

11 Id. at 2.

12 Rec. Doc. 15.

13 Rec. Doc. 18.

14 Rec. Doc. 20.

jurisdiction.15 Underwriters contend that there is no possibility that the amount in controversy will

exceed $75,000 for each Name and/or Member subscribing to the policy.16 Underwriters state that

Plaintiffs have provided an estimate of damages totaling $152,781.28, plus statutory penalties,

attorneys’ fees, and other damages pursuant to Louisiana Revised Statute §§ 22:1973 and

22:1892.17 Underwriters assert that there are eight syndicates subscribed to the policy.18 Even

assuming that the amount in controversy is $320,840.69, as stated by Plaintiffs, Underwriters argue

that this does not exceed the jurisdictional minimum for each syndicate.19

Underwriters argue that the Fifth Circuit and other courts have found that diversity

jurisdiction is destroyed if a plaintiff cannot prove it has a claim for over $75,000 against each

Name and/or Member subscribing to the policy.20 Underwriters contend that the members of eight

separate syndicates are subscribed to the policy.21 Even assuming that each syndicate had only one

member and assumed equal portions of the risk, Underwriters argue that Plaintiffs would have to

establish damages in the amount of $600,000 to meet the jurisdictional minimum.22

In fact, Underwriters contend that there are seven syndicates subscribing to the policy

through Contract B0142AA2102111 which assumes 75% of the total risk.23 Underwriters state

15 Rec. Doc. 15-1 at 1.

16 Id. at 2.

17 Id.

18 Id.

19 Id.

20 Id. at 4.

21 Id.

22 Id.

23 Id.

that of those seven syndicates, one syndicate only assumes 5.08% of the total risk.24 Underwriters

assert that Plaintiffs would have to establish damages in the amount of $1,476,377.95 to meet the

jurisdictional minimum.25

B. Plaintiffs’ Arguments in Opposition to the Motion

In opposition, Plaintiffs contend that Underwriters have failed to present any evidence

showing the number of Names subscribing to the policy and the allocation of risk.26 Plaintiffs state

that the total amount in controversy before consequential damages and penalties is $324,292.69.27

Plaintiffs assert that the policy contains a schedule of participation showing that Contract

B0142AA210211 subscribes to 75% of the risk and Contract B0142AA2104228 subscribes to 25%

of the risk.28 Applying these allocations, Plaintiffs indicate that Contract B0142AA2102111 covers

$243,219.5129 and Contract B0142AA2104228 covers $81,073.18,30 and thus, the amount in

controversy is met.31

C. Underwriters’ Arguments in Further Support of the Motion

Underwriters contend that Plaintiffs mistakenly identify Contract B0142AA210211 and

Contract B0142AA2104228 as syndicates subscribed to the policy, but these are two binding

24 Id.

25 Id. at 4–5.

26 Rec. Doc. 18 at 1.

27 Id. at 2.

28 Id. at 3.

29 75% of $324,292.69.

30 25% of $324,292.69.

31 Rec. Doc. 18 at 3.

authorities to which eight total syndicates have subscribed.32 Underwriters explain that seven

syndicates subscribe to the policy through binding authority B0142AA210211 to insure 75% of

the total risk, and one syndicate subscribed to the policy through B0142AA2104228 to insure 25%

of the risk.33 Underwriters assert that of the seven syndicates subscribing to B0142AA210211, one

syndicate insures only 5.08% of the total risk.34 Underwriters argue that considering one syndicate

only shares 5.08% of the total risk, the amount in controversy would need to be at least

$1,476,377.95 to establish the jurisdictional minimum.35

Underwriters contend that the attached declaration of Mallory White, claims examiner for

the third-party administrator for Underwriters, plainly establishes that there are eight total

syndicates subscribed to the policy and the percentage of risk assumed by each syndicate.36

III. Legal Standard

Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure enable parties

to challenge the subject matter jurisdiction of the district court.37 Federal courts have diversity

jurisdiction over a case if the parties are citizens of different states and the matter in controversy

exceeds $75,000.38 The party asserting federal jurisdiction bears the burden of proof that

jurisdiction does in fact exist.39 A lack of subject matter jurisdiction may be found in the complaint

32 Rec. Doc. 20 at 1.

33 Id.

34 Id.

35 Id. at 2.

36 Id.

37 Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001).

38 See 28 U.S.C. 1332(a).

39 Id.

alone, the complaint supplemented by the undisputed facts evidenced in the record, or the

complaint supplemented by the undisputed facts plus the court’s resolution of undisputed facts.40

A motion to dismiss under Rule 12(b)(1) should be granted only if it appears certain that the

plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.41

IV. Analysis

Underwriters argue that this case should be dismissed for lack of subject matter jurisdiction

because Plaintiffs cannot prove that the amount in controversy exceeds $75,000 for each Name

subscribing to the policy.42 In opposition, Plaintiffs argue that Underwriters have failed to present

evidence showing the number of Names subscribing to the policy and the allocation of risk.43 In

further support of the motion, Underwriters attach a sworn declaration from Mallory White

(“White”), the claims examiner for the third-party administrator for Underwriters.44

White states that there are eight total syndicates subscribing to Certificate Number

731460.45 White states that seven of these syndicates subscribe through binding authority

B0142AA2102111 and insure 75% of the total risk, divided as follows: Liberty Management

Agency Limited, 22.5%; Lancashire Syndicate, 21.8%; Amlin Underwriting Limited, 14.51%;

Ascot Underwriting Limits, 9.67%; Talbot Underwriting Limited, 10.75%; Blenheim Syndicate,

40 Id.

41 Id.

42 Rec. Doc. 15.

43 Rec. Doc. 18.

44 Rec. Doc. 20-1.

45 Id. at 2.

14.51%; Atrium Syndicate, 6.77%.46 White states that one syndicate, Convex Insurance UK

Limited, subscribes through authority B0142AA2104228 and insures 25% of the total risk.47

The Fifth Circuit has previously described the unique nature of Defendant Certain

Underwriters at Lloyd’s, London’s operating model, finding that:

Lloyd’s of London is not an insurance company but rather a self-regulating entity

which operates and controls an insurance market. The Lloyd’s entity provides a

market for the buying and selling of insurance risk among its members who

collectively make up Lloyd’s. Thus, a policyholder insures at Lloyd’s but not with

Lloyd’s. The members or investors who collectively make up Lloyd’s are called

“Names” and they are the individuals and corporations who finance the insurance

market and ultimately insure risks.... Each Name is exposed to unlimited personal

liability for his proportionate share of the loss on a particular policy that the Name

has subscribed to as an underwriter. Typically, hundreds of Names will subscribe

to a single policy, and the liability among the Names is several, not joint.48

The Fifth Circuit has affirmed Underwriters’ assertion that the $75,000 minimum must be

met against each individual Name.49 Given this precedent, the Court finds that Plaintiffs may not

aggregate their claims against individual Names, and therefore, must plead that the $75,000

jurisdictional amount is met for each name. Plaintiffs has not asserted facts or presented evidence

which would indicate that the amount in controversy is met as to all Names sued under the policy.

As such, the Court finds that federal subject matter jurisdiction is lacking, and Plaintiffs’ claims

must be dismissed.

Accordingly,

46 Id.

47 Id.

48 Corfield v. Dallas Glenn Hills LP, 355 F.3d 853, 857–58 (5th Cir. 2003).

49 See Team One Properties LLC v. Certain Underwriters at Lloyd’s London, 281 Fed. Appx. 323, *1 (5th

Cir. 2008). See also G&M Holding, Inc. v. Certain Underwriters at Lloyd’s of London, 2008 WL 215842 (E.D. La.

January 23, 2008) (Barbier, J.); McAuslin v. Grinnell Corp., 2000 WL 1059850 (E.D. La. August 1, 2000) (Vance,

J.); Rips, LLC v. Underwriters at Lloyd’s London, 2015 WL 2452339 (E.D. La. May 21, 2015) (Berrigan, J.).

IT IS HEREBY ORDERED that Underwriters’ Motion to Dismiss for Lack of Subject

Matter Jurisdiction is GRANTED. Plaintiffs’ claims are DISMISSED WITHOUT PREJUDICE

for lack of subject matter jurisdiction.

NEW ORLEANS, LOUISIANA, this 2214 day of July, 2024.

NANNETTE jolie BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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