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GRAEF v. GRAEF

April 15, 1986

KATHLEEN GRAEF
v.
ROBERT J. GRAEF, Administrator of the Estate of JAMES E. GRAEF, Deceased and JOEL VERNON FOX and NATIONWIDE MUTUAL INSURANCE CO.



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 FACTS

 On December 10, 1978, James E. Graef was driving an automobile northbound on I-95 with his wife, Kathleen Graef, as a passenger. The automobile crashed into the truck of Joel Vernon Fox which was parked along the side of the highway. As a result, James Graef was killed and Kathleen Graef was seriously injured. On November 21, 1979, Kathleen Graef brought an action against Robert Graef, administrator of the estate of James Graef, in the Philadelphia Court of Common Pleas. *fn1" Robert Graef's legal representation was provided by Nationwide Mutual Insurance Co. ("Nationwide"), since Nationwide had provided $1,500,000 in automobile insurance coverage to James Graef.

 In October, 1983, a trial was held in state court, and a jury found that James Graef's negligence was the proximate cause of Kathleen Graef's injuries. Damages were given to plaintiff in the amount of $3,725,161. An appeal was then taken, alleging that certain evidence had been improperly admitted. However, no supersedeas appeal bond had been filed in accordance with Pennsylvania Rule of Appellate Procedure § 1731, et seq. For this reason, plaintiff was able to bring a garnishment proceeding against Nationwide in state court. Nationwide, in timely fashion, removed the garnishment proceeding to federal court based on diversity of citizenship and an amount in controversy in excess of $10,000.00. Plaintiff alleges that Nationwide is liable for the entire amount of the verdict, despite the $1,500,000 policy limit. Apparently plaintiff is alleging that Nationwide acted in bad faith by not settling this case before trial. *fn2" Nationwide does not dispute the fact that it will be liable for the entire $1,500,000 if it loses its appeal before the Supreme Court of Pennsylvania, but denies any liability beyond this amount.

 DISCUSSION

 The controlling statute in determining whether an action is removable to federal court is 28 U.S.C. § 1441, which states:

 
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
 
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
 
(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

 Since the only basis for subject matter jurisdiction in the present case is based on diversity between the parties pursuant to 28 U.S.C. § 1332, § 1441(b) is inapplicable. Therefore, it must be determined whether this garnishment proceeding is removable to federal court under § 1441(a) or § 1441(c).

 In order for § 1441(a) to be applicable, the present garnishment proceeding must be a distinct "civil action. "The federal courts are split on whether a state's characterization of its own garnishment proceeding is controlling for the purposes of § 1441(a). Several courts have held that if a state characterizes its garnishment as a distinct "civil action," it is removable, but if the state fashions the proceeding as just supplemental to the underlying cause of action, then it is not removable under § 1441(a). See, e.g., Overman v. Overman, 412 F. Supp. 411 (E.D. Tenn. 1976); Toney v. Maryland Cas. Co., 29 F. Supp. 785 (W.D. Va. 1939). Other courts look to the facts of the case and apply an independent federal analysis in determining whether that particular garnishment proceeding is a distinct "civil action. " See, e.g., Butler v. Polk, 592 F.2d 1293 (5th Cir. 1979); Swanson v. Liberty Nat. Ins. Co., 353 F.2d 12 (9th Cir. 1965); Randolph v. Employers Mut. Liability Ins. Co., 260 F.2d 461 (8th Cir. 1958). The latter approach is the more appropriate since the Supreme Court has stated: "It is a question of the federal statute on removal, and not the state statute. The latter's procedural provisions cannot control the privilege of removal granted by the federal statute." Chicago R.I. & P.R. Co. v. Stude, 346 U.S. 574, 580, 98 L. Ed. 317, 74 S. Ct. 290 (1953). See, also, Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 85 L. Ed. 1214, 61 S. Ct. 868 (1941); Road District v. St. Louis S.W. Ry. Co., 257 U.S. 547, 66 L. Ed. 364, 42 S. Ct. 250 (1922).

 However, while a state's characterization of its garnishment proceeding should not be controlling, it is a factor that should be considered when an independent analysis is made under ...


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