Dallas Fort Worth Insurance Lawyer Blog
When a claim is denied and the insured has to file a lawsuit against the insurance company, most insurance lawyers prefer to litigate cases in the State or County courts while insurance companies prefer to litigate the cases in Federal Court.
When the insurance company is sued in State Court, the attorney for the insured will also sue the adjuster in an effort to beat the required “diversity jurisdiction” of the Federal Court which is found at 28 U.S.C., Section 1332(a).
This issue was the topic in the 2019, Western District of Texas, Austin Division, opinion styled, Susan Swire and Philip Swire v. Alyssa Kempf f/k/a Alyssa Hodge and Geico County Mutual Insurance Company. The case was filed in State Court and then removed to Federal Court based on diversity jurisdiction. The Swire’s argued that Kempf is in fact a Texas citizen and therefore, removal is improper.
Under 28 U.S.C., Section 1441(b), when a plaintiff files in state court a civil action over which the federal district court would have original jurisdiction based on diversity of citizenship, the defendant or defendants may remove the action to federal court, provided that no defendant is a citizen of the State in which such action is brought.
Citizenship is is based on domicile. The Fifth Circuit looks at all evidence shedding light on the litigant’s intentio to establish a domicile. The courts assess several factors, with each factor given equal weight and none of them dispositive of the inquiry. These factors include the places where the litigant exercises civil and political rights, pays taxes,, owns real and personal property, has driver’s and other licenses, maintains bank accounts, belongs to clubs and churches, has places of business or employment, and maintains a home for her family.
The Swirls tell the court that Kempf is a resident of Texas because (a) she used to live there, (b) she has a Texas driver’s license, (c) she is registered to vote in Texas, and (d) she and her husband maintain vehicle registrations in Texas. The Swirls assert that Kempf only temporarily lives in Indiana while her husband completes his graduate degree. These arguments of Kempf are partly based on her husband’s LinkedIn profile and a Westlaw PeopleMap report.
Kempf says the LinkedIn profile is an unauthenticated source from the Internet about a non-party, and that the Westlaw PeopleMap report is neither verified for accuracy nor current. Kempf asserts that the PeopleMap information about her voter registration lacks an identified source, that the report is more than a year old, and that she has not voted in the past two national elections. She also points out that the PeopleMap report itself shows that both her vehicle registrations in Texas have expired. Additionally, she submitted a sworn declaration that she is full time preschool teacher in Indiana with a vocational license to teach there, she pays Indiana state income tax, her automobile and renter’s insurance were obtained and are maintained in Indiana, her banking and brokerage accounts are in Indiana, and she owns no real estate or personal property in Texas.
Based on the above, the Court found that Kempf is domiciled in Indiana.