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Lolling v. Cincinnati Insurance Co.

United States District Court, Seventh Circuit

December 2, 2013

MICHAEL AND ELIZABETH LOLLING, Plaintiffs,
v.
CINCINNATI INSURANCE COMPANY, Defendant.

OPINION

SUE E. MYERSCOUGH, District Judge.

In September 2013, Plaintiffs Michael and Elizabeth Lolling filed a Complaint in state court. On October 9, 2013, Defendant Cincinnati Insurance Company filed a Notice of Removal. Plaintiffs object to removal, asserting that the amount in controversy does not exceed $75, 000. In the alternative, Plaintiffs ask the Court to decline jurisdiction pursuant to the doctrine of forum non conveniens. Because the amount in controversy exceeds $75, 000 and the relevant factors do not warrant dismissal of the case under the doctrine of forum non conveniens, Plaintiffs' Objection (d/e 5) is DENIED.

I. BACKGROUND

On September 3, 2013, Plaintiffs filed a Complaint in the Circuit Court for the Eleventh Judicial Circuit of Illinois, Logan County, Illinois. See d/e 1-1. The Complaint contained two counts: Count I, breach of contract, and Count II, entitled "Reasonable Attorney's Fees" brought pursuant to 215 ILCS 5/155 of the Illinois Insurance Code.

Plaintiffs allege that on February 1, 2010, Plaintiffs' home was severely damaged when water pipes froze and broke. At the time of the occurrence, Plaintiffs' home was insured by Defendant.

According to Plaintiffs, the policy of insurance provided a maximum of $152, 000 of coverage for damage to the residence's interior, excluding personal property. Plaintiffs did not attach a copy of the insurance policy to the Complaint because the policy was destroyed in a fire.

Plaintiffs submitted a claim, and Defendant paid approximately $115, 000 toward repair of the interior of the residence. However, Defendant refuses to authorize any further funds toward the repair of the interior of Plaintiffs' residence despite the policy providing for an additional $37, 000 in coverage.

Plaintiffs further allege that they are not able to return their belongings to the residence until the repairs are completed. Plaintiffs assert that the policy of insurance provides that Defendant is responsible for any storage costs incurred while the repairs are being made but that Defendant refuses to make payments toward the ongoing storage of Plaintiffs' belongings. In Count I, Plaintiffs seek damages in the amount of approximately $49, 000.

In Count II, Plaintiffs allege that Defendant's refusal to pay restoration charges, storage charges, and other charges has been unreasonable, vexatious, and without cause, all in violation of 215 ILCS 5/155. Plaintiffs seek penalties against Defendant in an amount provided by statute plus payment of Plaintiffs' reasonable attorney's fees.

On October 9, 2013, Defendant filed a Notice of Removal (d/e 1) (asserting that Defendant received a copy of the Complaint on October 4, 2013). See 28 U.S.C. § 1446(b) (providing that notice of removal shall be filed within 30 days after the defendant's receipt of the complaint). Defendant asserts that the Court has subject matter jurisdiction over the dispute pursuant to 28 U.S.C. § 1332 because the dispute arises between citizens of different states and the amount in controversy exceeds $75, 000, exclusive of interest and costs.

Plaintiffs object to removal. See d/e 5. Plaintiffs concede that the parties are diverse but deny that the amount of controversy satisfies the $75, 000 threshold. Plaintiffs also assert that even if diversity jurisdiction exists, this Court should decline to exercise jurisdiction on the basis that it is a forum non conveniens.

II. ANALYSIS

A. Removal Was Proper Because the Parties are Diverse and the Amount in Controversy Exceeds $75, 000

A defendant may remove a case filed in state court if the federal court has original jurisdiction over the case. 28 U.S.C. § 1441(a). In such cases, the defendant bears the burden of showing, by a preponderance of the evidence, that federal jurisdiction exists. Smith v. Am. ...


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