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All state Insurance Co. v. Estate of Elizabeth Walker

United States District Court, D. Alaska

May 7, 2019

ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Plaintiff,
v.
ESTATE OF MAIA GRACE ELIZABETH WALKER, KELLY COLLEEN MCGANN, and JEFFERY WALKER, Defendants.

          ORDER

          H. Russel Holland, United States District Judge

         Motion to Dismiss

         Defendants the Estate of Maia Grace Elizabeth Walker and Kelly Colleen McGann move to dismiss plaintiff's complaint.[1] This motion is opposed.[2] Oral argument was not requested and is not deemed necessary.

         Background

         Plaintiff is Allstate Insurance Company. Defendants are the Estate of Maia Grace Elizabeth Walker, Kelly Colleen McGann, and Jeffery Walker.

         Plaintiff alleges that Maia Walker committed suicide on July 21, 2018, at the home of her father, Jeffery Walker.[3] Plaintiff alleges that McGann was Maia Walker's mother and that Jeffery Walker and McGann “were legally separated at the time of Maia's death.”[4]

         Plaintiff alleges that it had “issued a homeowners insurance policy to [Jeffery] Walker as the named insured (Policy No. 920452027)” that was in effect at the time of Maia Walker's death.[5] Plaintiff alleges that “[b]y letter dated December 28, 2018, the Estate asserted claims against [Jeffery] Walker for Maia's death.”[6]

         Plaintiff alleges that it “does not owe a duty to indemnify [Jeffery] Walker under the terms of the Allstate Policy because coverage is excluded for Maia's intentional acts.”[7]Plaintiff also alleges that it “does not owe a duty to indemnify [Jeffery] Walker under the terms of the Allstate Policy because coverage is excluded for claims for bodily injury to an insured person[, ]” which plaintiff alleges Maia Walker was.[8]

         On March 6, 2019, plaintiff commenced this declaratory judgment action. Plaintiff alleges that this court has diversity jurisdiction because it is an Illinois corporation and the defendants are all residents and citizens of Alaska.[9] Plaintiff seeks “a declaration that Allstate does not owe a duty to indemnify [Jeffery] Walker under the terms of the Allstate Policy” and “a declaration that no liability insurance proceeds are payable from the Allstate Policy as a result of the death of Maia” Walker.[10]

         The Estate and McGann (referred to hereinafter as defendants) now move to dismiss plaintiff's complaint, arguing that the court lacks subject matter jurisdiction and that there is coverage under the policy in question for Maia Walker's wrongful death.

         Discussion Although defendants do not cite to any authority as the basis of their motion to dismiss for lack of subject matter jurisdiction, such a motion is brought pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure. “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. In resolving a facial attack, the court accepts the plaintiff's allegations as true. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “[I]n a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. “In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Id. “The court need not presume the truthfulness of the plaintiff's allegations.” Id.

         Defendants first argue that there is not diversity jurisdiction here because plaintiff can be considered a citizen of “every State and foreign state of which the insured is a citizen[.]” 28 U.S.C. § 1332(c)(1)(A). Because Jeffery Walker, the insured, is a citizen of Alaska, defendants argue that plaintiff can also be considered a citizen of Alaska, which would destroy diversity jurisdiction. See Brophy v. Almanzar, 359 F.Supp.3d 917, 925 (C.D. Cal. 2018) (“[a] federal court has diversity jurisdiction over a civil action between citizens of different states, so long as the amount in controversy exceeds $ 75, 000”).

         However, Section 1332(c)(1) only applies “in any direct action against the insurer of a policy or contract of liability insurance, . . . to which action the insured is not joined as a party[.]” “‘[A] direct action is one in which a plaintiff is entitled to bring suit against the tortfeasor's liability insurer without joining the insured.'” Smith v. Allstate Ins. Co., 202 F.Supp.2d 1061, 1064 (D. Ariz. 2002) (quoting Searles v. Cincinnati Ins. Co., 998 F.2d 728, 730 (9th Cir. 1993)). This matter is not a direct action against the insurer. Thus, Section 1332(c)(1) has no application here.

         Defendants next argue that this court lacks subject matter jurisdiction based on a provision in the insurance policy. Jeffery Walker's policy contains an Alaska ...


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