United States District Court, W.D. Washington, Seattle
GREGORY J. STARK, a Canadian citizen and Washington resident, Plaintiff,
MARKEL AMERICAN INSURANCE COMPANY, a Virginia corporation; and DMA & ASSOCIATES, INC., a Washington corporation, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Gregory
Stark's Motion for Remand, Dkt. #7. Plaintiff moves the
Court for an order remanding this action to King County
Superior Court and for an award of fees and costs under 28
U.S.C. § 1447(c). Id. Defendant Degginger
McIntosh & Associates (“DMA”) joins in
requesting remand. Dkts. #9 and #17. Defendant Markel
American Insurance Company opposes remand and fees. Dkt. #14.
The Court has determined that oral argument is unnecessary.
For the reasons below, the Court agrees with Mr. Stark,
GRANTS his Motion, REMANDS this case to King County Superior
Court, and awards fees.
2015, Mr. Stark purchased a 1960 66-foot long Chris Craft
vessel. See Dkt. #1-2 at 3, ¶9. He renamed the
boat the GRACE. Id. at 4, ¶11. Mr. Stark
contacted DMA, his previous insurance broker, and sought to
increase the amount of insurance. He later informed DMA that
he had found a boathouse to moor the GRACE. Id. at
4-5, ¶¶12-16. DMA then sent Mr. Stark an
application for an insurance quote from Defendant insurance
company Markel and Mr. Stark completed the form. Id.
at 6, ¶¶23-24. Mr. Stark alleges that, late in the
underwriting process, Markel made a change to the policy
eliminating coverage for the GRACE if it was afloat on the
water, and that this was not clearly communicated to Mr.
21, 2017, approximately six months after the Policy was
finalized, an accidental fire broke out at the boathouse,
completely destroying the GRACE. Id. at 11,
¶54. Markel later sent Mr. Stark a reservation of rights
letter, reserving the right to deny coverage on the basis
that GRACE was afloat on the water.
September 5, 2017, Mr. Stark initiated a state court action
in King County Superior Court against the instant Defendants
for reformation of the Markel Policy on the basis that Markel
had operated under a mistake of fact regarding the
GRACE's seaworthiness when it issued the Markel Policy.
See id. Mr. Stark also asserted a claim against
Markel for violation of the Washington Consumer Protection
Act for its misleading and deceptive conduct in the
underwriting and issuance of the Markel Policy. Id.
Finally, he asserted claims against DMA for breaching its
professional and fiduciary duties by failing to procure the
insurance appropriate to cover the GRACE. Id.
days after Mr. Stark filed suit in state court, Markel filed
an action in this court, seeking declaratory judgment that
there is no coverage under the Markel Policy and that the
policy should not be equitably reformed. See Case
No. 2:17-cv-1345-RSM. On October 5, 2017, Markel also removed
Mr. Stark's state court action to this Court in the
instant matter. Dkt. #1. Mr. Stark filed the instant Motion
to Remand on October 12, 2017. Dkt. #7.
case is filed in state court, removal is typically proper if
the complaint raises a federal question or where there is
diversity of citizenship between the parties and the amount
in controversy exceeds $75, 000. 28 U.S.C. §§ 1331,
1332(a). Typically it is presumed “‘that a cause
lies outside [the] limited jurisdiction [of the federal
courts] and the burden of establishing the contrary rests
upon the party asserting jurisdiction.'” Hunter
v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir.
2009). Courts “strictly construe the removal statute
against removal jurisdiction.” Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992). “The
‘strong presumption' against removal jurisdiction
means that the defendant always has the burden of
establishing that removal is proper.” Id.
(quoting St. Paul Mercury Indem. Co. v. Red Cab Co.,
303 U.S. 283, 288-290, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). An
order remanding the case may require payment of just costs
and any actual expenses, including attorney fees, incurred as
a result of the removal. 28 U.S.C. § 1447(c).
“Absent unusual circumstances, courts may award
attorney's fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for
seeking removal.” Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005).
case, Defendant Markel presents two bases for removal: (1)
that this Court has admiralty and maritime jurisdiction over
Mr. Stark's reformation claim against Markel because the
Markel Policy is a marine insurance policy; and (2) that the
Court will have diversity jurisdiction once Markel files a