Mopsik v. Hartford Insurance Co.

Full title: NORMAN MOPSIK BETTE SHERMAN VERSUS HARTFORD INSURANCE CO

Court: United States District Court, E.D. Louisiana

Date published: Jan 22, 2004

CIVIL ACTION NO. 03-1573, SECTION "L"(2) (E.D. La. Jan. 22, 2004)

Opinion

CIVIL ACTION NO. 03-1573, SECTION "L"(2)

January 22, 2004

ORDER REASONS

ELDON FALLON, District Judge

Before the Court is the motion of plaintiffs, Norman Mopsik and Bette Sherman, to remand this action to state court for lack of diversity jurisdiction. For the following reasons, the motion is denied.

I. BACKGROUND

This case arises out of an automobile accident that occurred on May 27, 2002. Plaintiff Mopsik allegedly sustained serious injuries in a collision with a driver who was acting in the course and scope of his employment. Following the accident, the employer's insurance company settled Mopsik's damages in the amount of $10,000.00 pursuant to the employer's insurance policy. Under this settlement, the employer, the driver, and the employer's insurance company were released.

In the instant action, the Plaintiffs make a claim against Defendant, their insurance company, pursuant to an uninsured provision in their insurance policy. The action was filed in the Civil District Court for the Parish of Orleans on June 2, 2003, and removed by the Defendant to this Court on June 3, 2003. In its Notice of Removal, the Defendant asserted that the Court had original jurisdiction over the matter pursuant to 28 U.S.C. § 1332.

In their motion to remand, the Plaintiffs allege that diversity is defeated in the case. Specifically, the Plaintiffs claim that under the direct action provision of 28 U.S.C. § 1332(c)(1), the Defendant is deemed to be a citizen of Louisiana. The Defendant opposes the motion.

II. ANALYSIS

An uninsured motorist policy is not a "policy or contract of liability insurance." Gonzalez v. Government Employees Ins. Group, 2000 WL 235236 at *2 (E.D.La. 2001) (citing Hernandez v. Travelers Ins. Co., 489 F.2d 721. 725 (5th Cir. 1974)). Uninsured motorist coverage is intended to provide protection when the liable party is underinsured or uninsured. Id. at *3. Because it does not indemnify the primary insurer "against the condition of becoming liable," it does not fall within the ambit of liability insurance. Id. Accordingly, this is not a "direct action," it is a contract dispute. As diversity is present, this Court has original jurisdiction under 28 U.S.C. § 1332,

III. CONCLUSION

Accordingly and for the reasons stated above, the Plaintiffs motion should be and hereby is DENIED.