Opinion
Civ. A. No. 1335.
July 7, 1955.
Claude T. Wood, Richland, Mo., for plaintiff.
Stubbs, McKenzie, Williams Merrick, Kansas City, Mo., for defendant.
In this removal action plaintiff seeks recovery upon an insurance policy, and under Section 375.420 of the Missouri Statutes, R.S.Mo. 1949, V.A.M.S. for vexatious refusal to pay the proceeds thereof, plaintiff claims his statutory damages as follows: the amount of his loss, $2,000; the statutory ten per cent maximum penalty for vexatious refusal to pay, $200; and a "reasonable" attorney's fee. Plaintiff now questions by way of the instant motion to remand the presence in controversy of $3,000, our requisite jurisdictional minimum. 28 U.S.C. § 1332.
As defendant admits, the only way by which its removal can be justified is to assume that the "reasonable" attorney's fee to which plaintiff is entitled under the statute would in this case be in excess of $800. If so, such fee may be included in computing the jurisdictional amount. Missouri State Life Ins. Co. v. Jones, 290 U.S. 199, 54 S.Ct. 133, 78 L.Ed. 267.
It must be remembered that the burden is on defendant to affirmatively show that the matter here in controversy is in excess of the $3,000 minimum. McNutt v. General Motors Corp., 298 U.S. 178, 182, 56 S.Ct. 780, 80 L.Ed. 1135; Collins v. Public Service Comm., D.C.W.D.Mo., 129 F. Supp. 722, 726. The jurisdictional grant must be strictly construed; if it is at all doubtful that defendant has not sustained that burden, the cause should be remanded. Fitzgerald v. Missouri Pacific Ry. Co., C.C.Neb., 45 F. 812; Ostrum v. Edison, D.C.N.J., 244 F. 228; Tinney v. McClain, D.C. N.D.Tex., 76 F. Supp. 694.
Here, although the amount claimed by defendant as a possible attorney's fee may not perhaps be described as "highly colorable" as in New York Life Ins. Co. v. Greenfield, 5 Cir., 154 F.2d 953, the existence of our jurisdiction is, at least, "highly doubtful." Any assumption that the plaintiff would be entitled to the assessment of a fee of more than $800 by the Court in this case, in which the maximum judgment that could possibly be obtained would be $2,200, is highly unwarranted (as is shown by the appended table of fees allowed in the reported cases before the Eighth Circuit Court of Appeals, this Court, and the Supreme Court of Missouri). We cannot, as a matter of fact or law, foresee any unusual facets of this case that would possibly justify the assessment by the Court of an attorney's fee in excess of 36.4% of the maximum possible recovery (not 28% as estimated by defendant). Such an assumption would leave the jurisdiction of this Court on a very tenuous basis. Defendant refers to the Minimum Fee Schedule published by the Kansas City Bar Association as suggesting a fee of $40 per hour of trial preparation; we also note that said schedule provides a fee of 25% of all collection judgments in excess of $1,000.
Where our jurisdiction is doubtful, we have a duty to remand. Reeves v. American Brake Shoe Co., D.C.Mo., 74 F. Supp. 897; Cudney v. Mid-Continent Airlines, D.C.Mo., 98 F. Supp. 403.
Concluding that the jurisdictional amount is not affirmatively shown by the present petition for removal, the motion to remand must be granted. It is so ordered.
Appendix
204 F.2d 933 138 F.2d 382 125 F.2d 229 64 F.2d 906 61 F.2d 464 85 F. Supp. 84 83 F. Supp. 668 75 F. Supp. 606 248 S.W.2d 648 207 S.W.2d 279 357 Mo. 187 195 S.W.2d 441 173 S.W.2d 886 149 S.W.2d 328 347 Mo. 793 142 S.W.2d 474 346 Mo. 548 104 S.W.2d 319 340 Mo. 1070 78 S.W.2d 862 336 Mo. 352 37 S.W.2d 616 327 Mo. 350
Penalty Att'ys Percentage Case Citation Loss of Fee --------------------------------------------------------------------------------------- Hartford Accident Ind. $18,490. $ 1,849. $ 2,000. 9.8 Co. v. Federal D.I.C., 8 Cir., Columbian Nat. Life Ins. 50,000. 5,000. 7,500. 13.6 v. Keyes, 8 Cir., American Surety Co. v. 127 F.2d 811 17,378. — 1,500. 8.6 Franciscus, 8 Cir., Occidental Life Ins. Co. v. 3,500. 350. 1,000. 26.0 Eiler, 8 Cir., Union Ind. Co. v. Home 12,830. 1,100. 1,285. 9.2 Trust Co., 8 Cir., Southern Surety Co. v. 90,000. 9,000. 10,000. 10.1 Motlow, 6 Cir., Shefrin v. Hawkeye Cas., 1,025. 102. 375. 33.3 D.C.W.D.Mo., Firemen's Ins. v. Smith, 5,000. 500. 500. 9.1 D.C.W.D.Mo., Carolina Mills v. World 72,605. 7,260. 15,973. 20.0 Fire Marine Ins., D.C. W.D.Mo., City of N.Y. Ins. Co. v. 59,500. 5,950. 11,900. 18.2 Stephens, Mo.Sup., Callahan v. Conn. Gen. 2,500. — 500. 20.0 Life Ins. Co., , Corder v. Morgan Roofing 17,411. 1,741. 2,500. 13.1 Co., Mo.Sup., Kimpton v. Spellman, 351 8,408. 841. 1,500. 16.0 Mo. 674, Lemay Ferry Bank v. New 8,010. 500. 1,850. 21.7 Amsterdam Cas. Co., , Cleaver v. Central States 10,000. 260. 1,000. 9.7 Life Ins. Co., , Camdenton Consol. School 7,721. 834. 800. 9.4 Dist. v. New York Cas. Co., , State ex rel. Missouri Mut. 1,000. 100. 300. 27.3 Ass'n v. Allen, , Curtis v. Indemnity Co., 7,500. 1. 500. 6.7 , --------------------------------------------------------------------------------------- Average Fee ...... 15.7%