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Prost v. Bank of America Corp.

June 25, 2010


The opinion of the court was delivered by: John F. Grady, United States District Judge


Plaintiff's motion for remand is before the court. For the following reasons, the motion is granted in part and denied in part.


Plaintiffs Thomas J. Prost, Jerome P. Croke, and Robert H. Jones, all Illinois citizens, bring this action against defendants Bank of America Corporation, a Delaware corporation with a principal place of business in North Carolina, and Lincoln Benefit Life Company, a Nebraska corporation with a principal place of business in Nebraska.

The action arises out of a "Split Dollar Agreement" (alternatively, the "Agreement") that each of the plaintiffs entered into with their former employer, Talman Home Federal Savings and Loan Association of Illinois ("Talman"). Plaintiffs allege that the Agreement obligated Talman and its successors, including Bank of America Corporation, to maintain, for the remainder of plaintiffs' lives, life insurance policies on them that have a minimum $200,000 permanent death benefit, payable to plaintiffs' beneficiaries.

A brief history of the policies, taken from plaintiffs' complaint, is in order. In 1978, Talman's Board of Directors authorized Talman to contract with certain employees "wherein the employee would be compensated with life insurance with a permanent death benefit of $200,000 payable to the employee's beneficiary upon death of the employee." (Compl. Count I ¶ 10.) The policies issued pursuant to the contracts were known as Retired Lives Reserve policies; they were fully pre-funded by Talman, and Talman was to receive no premium reimbursement upon the employee's death. Approximately twelve employees were insured under the program, including plaintiffs Croke and Prost.

In 1985, Talman's Board directed that the "Retired Lives Reserve" policies be replaced with policies issued pursuant to split dollar agreements, where the policies would pay a permanent death benefit to the employees' beneficiaries and also pay a death benefit to Talman for the reimbursement of premiums it had paid. Plaintiffs entered into the Agreements with Talman that year, and plaintiffs opted for a $200,000 guaranteed death benefit with taxable imputed income. Talman obtained life insurance policies from Executive Life Insurance Company ("Executive Life"). According to plaintiffs, the $200,000 death benefit pursuant to these policies was permanent and was to remain in effect until the plaintiffs' respective deaths.

In 1989, Talman became aware that Executive Life was having financial difficulties and that it intended to file for bankruptcy relief or otherwise liquidate its assets, so Talman changed insurance carriers. The Executive Life policies were cancelled and replaced with life insurance policies issued by defendant Lincoln Benefit Life Company ("Lincoln"). Each policy had an issue date of November 1, 1990.

In 1992, ABN-AMRO North America, Inc. acquired Talman's assets and assumed its liabilities. Talman became known as LaSalle Talman. In 2007, defendant Bank of America Corporation (the "Bank") acquired LaSalle Talman's assets and assumed its liabilities.

In February 2009, the Bank notified plaintiffs that their life insurance policies would lapse on October 31, 2010. Plaintiff Croke responded, asserting that the Bank could not let the policies lapse because the death benefit was permanent. The Bank replied that it had determined that the controlling instrument was the 1985 Split Dollar Agreement and that the Agreement did not include any specific promise as to the amount of coverage to be provided by the policy or as to the structure of the policy. The Bank's position is that the Agreement makes clear that it was not an irrevocable promise to provide a permanent policy for the remainder of plaintiffs' lives. (Compl., Ex. E, Letter from Keri M. Erbe to Jerome Croke.)

Plaintiffs originally filed this action in the Circuit Court of Kane County on February 16, 2010. The complaint contains claims for breach of contract against the Bank (Count I); estoppel against the Bank (Count II); and breach of contract against Lincoln (Count III). On March 24, 2010, defendants removed the action to this court, asserting diversity jurisdiction. Plaintiffs now move to remand.


Jurisdiction based on diversity exists if the amount in controversy exceeds $75,000 and the suit is between citizens of different states. 28 U.S.C. § 1332(a)(1). There is no dispute that the parties are of diverse citizenship, but the amount in controversy is at issue.

In a case removed from state court, the amount in controversy is the amount required to satisfy a plaintiff's demands in full on the day the suit was removed. Oshana v. Coca-Cola Co., 472 F.3d 506, 510-11 (7th Cir. 2006). Defendants, as the removing parties and proponents of federal jurisdiction, have the burden of proving by a preponderance of the evidence facts suggesting that the amount-in-controversy requirement is met. See Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006). This demonstration concerns "what the plaintiff is claiming . . ., not whether plaintiff is likely to win or be awarded everything he seeks." Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 449 (7th Cir. 2005) (citations omitted). "It is well settled that while an individual plaintiff's multiple claims against a single defendant may be aggregated to determine diversity jurisdiction, the separate claims of multiple plaintiffs against a single defendant cannot be aggregated to meet the jurisdictional requirement." Clark v. State Farm Mut. Auto. Ins. Co., 473 F.3d 708, 711 (7th Cir. 2007). Moreover, "when there are two or more defendants, plaintiff may aggregate the amount against the defendants to satisfy the amount in controversy requirement only if the defendants are jointly liable; however, if the defendants are severally liable, plaintiff ...

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