papers he submitted to Nationwide before this litigation began do not include a demand for first party medical benefits. Defendant now seeks to amend his answer to make it clear that he is waiving any claim for those benefits.
Nationwide first argues that any statement or waiver after the filing of the complaint cannot oust this Court of jurisdiction. It also contends that the jurisdictional sum is determined not only by the amount of the uninsured motorist coverage but also by any attorneys' fees and costs for which the insurance company is obligated to the insured in any underlying arbitration.
We must first look, of course, to the face of the complaint to determine the sum or value in controversy. This controls unless it appears or it is established that the amount is not claimed in good faith, that is, that it appears "'to a legal certainty the claim is really for less than the jurisdictional amount.'" Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 353, 81 S. Ct. 1570, 1573, 6 L. Ed. 2d 890 (1961) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S. Ct. 586, 590, 82 L. Ed. 845 (1938)). It is well settled that subject matter jurisdiction in a diversity case is determined at the time the complaint is filed. St. Paul Mercury Indem. Co. v. Red Cab Co., supra. Thus, for example, if the citizenship of a party changes after the suit is initiated so as to destroy diversity, the Court will not dismiss the complaint for lack of subject matter jurisdiction. Smith v. Sperling, 354 U.S. 91, 77 S. Ct. 1112, n.1 at 1113, 1 L. Ed. 2d 1205 (1954). Likewise, if a case has been properly removed from the state court, a plaintiff, by later amending its complaint to reduce its claim below the jurisdictional amount, may not have the case remanded to the state court. The federal court retains jurisdiction nonetheless. St. Paul Mercury Indem. Co. v. Red Cab Co., supra ; Angus v. Shiley, 989 F.2d 142, (3d Cir. 1993).
Before this lawsuit was instituted, the defendant sought coverage from Nationwide for his injuries under only the uninsured motorist coverage of the policy. That was the sole dispute he sought to arbitrate under the arbitration provision of the policy. Thereafter, Nationwide filed this declaratory judgment action in this Court alleging that the jurisdictional amount exceeds $ 50,000, exclusive of interest and costs.
Nationwide seeks a declaration as to both the uninsured motorist and the first party medical benefits coverages even though the issue of the first party medical benefits is not and has never been in issue. Since we must view the amount in controversy as of the time the complaint was filed, Nationwide cannot meet the jurisdictional amount by seeking a declaration of an additional coverage not in issue at that time.
This, however, does not end the matter. Alternatively, Nationwide argues that the Court must include, in addition to the $ 50,000 in uninsured motorist coverage, the arbitration costs as set forth in the policy. The arbitration provision of the policy, which is attached to and made a part of the complaint, states:
If we and the insured do not agree about the insured's right to recover damages or the amount of damages, the following arbitration procedure will be used: