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Date: 03-26-2024
Case Style:
Case Number: 5:23-cv-01194
Judge: David L. Russell
Court: United States District Court for the Western District of Oklahoma (Oklahoma County)
Plaintiff's Attorney: Cody J. Cooper, and Kelsey A. Chilcoat, and Fred A. Leibrock - 405-235-4100; Joe E. White, Jr. - 405-858-8899; Mark E. Bialick and R. Ryan Deligan - 405-235-9584
Defendant's Attorney: Hannah Whitten, Heather L. Strohmeyer, Michael Burrage, Randa K. Reeves for Dolese Bros Co
Roger N Butler, Jr. and Edward J. Main for Great American Insurance Company
Description: Oklahoma City, Oklahoma insurance law lawyers represented the Plaintiff who sued on a insurance law theory.
This dispute stems from a wrongful death suit that has already reached judgment in state court. Jennifer Witte, Plaintiff, filed suit on January 14, 2020, against Dolese in the District Court of Cleveland County for the wrongful death of her husband, Neil. Doc. 5: Mtn. at 1; Doc. 13: Resp. at 1. Dolese was the only named defendant in the suit, but it held multiple liability insurance policies, including one with Great American Insurance Company. Id.
Days before trial, Dolese and Witte were close to executing a “High-Low Agreement” that would ensure a recovery for Witte and cap Dolese's (and its insurers') liability at twenty million dollars. Mtn. at 2-3; Resp. at 1-2. The agreement would also disclaim any possibility of punitive damages. Id. Dolese sought the approval of its various insurers to enter into this Agreement. Id. Dolese's other two insurers agreed to the High-Low; Great American did not consent and provided no rationale for doing so. Id. On the Friday before the trial was to begin, Dolese executed the High-Low agreement without the consent of Great American. Id.
Following a bench trial, the judge found Dolese liable and awarded Witte a fiftyeight-million-dollar verdict. Mtn. at 3; Resp. at 2. Pursuant to the High-Low Agreement, Dolese was liable for only twenty million dollars. See id. Dolese's primary insurance policy through Travelers would pay the first two million of Witte's judgment. Id. Great American was to be responsible for the other eighteen million, but the High-Low Agreement prevented Great American from facing an even higher liability. Id. The state court entered final judgment in the case on November 8, 2023. Id.
Soon, Great American disputed its alleged obligation to Dolese. Hours after the state court judgment, Great American filed a separate action in this Court seeking a declaratory judgment that Dolese had breached its contract with Great American by agreeing to the High-Low without its consent. Mtn. at 3-4; Resp. at 2-3. Days later, Dolese moved for leave to file a third-party petition in Cleveland County against Great American in the wrongful death case. Mtn. at 4; Doc. 5-7. The judge granted the motion, and Dolese filed the petition, accusing Great American of bad faith and seeking payment of Witte's judgment. Doc. 5-4. Subsequently, Great American filed a Motion to Strike and/or Sever the Third-Party Petition in state court. Doc. 1-6. Prior to the state court ruling on the motion, however, Great American removed the case to this court on December 28, 2023. Doc. 1.
The Court does not address Dolese's Motion to Decline Jurisdiction in Great American's declaratory judgment action at this time. [Doc. 10, 5:23-cv-01013-R].
In Great American's Notice of Removal, it states that it is effectively a defendant in a new contractual action between it and Dolese over the payment of Witte's judgment. Doc. 1 at ¶ 9. Due to this, Great American suggests the Court can sever the recent claim, realign parties, and, thus, achieve complete diversity. It urges the Court to exalt substance over form. Dolese, on the other hand, argues the Court must remand the case because Great American is a third-party defendant in a case that commenced years ago in state court. Accordingly, Dolese argues Great American's removal is invalid and out of time.
Outcome: The Court finds Great American's removal is untimely. See Order for details. Signed by Judge David L. Russell on 03/26/2024. (km) (Entered: 03/26/2024)
Plaintiff's Experts:
Defendant's Experts:
Comments: