DECEMBER 2007 BAD FAITH CASES CASE REMANDED WHERE NO FRAUDULENT JOINDER OF NON-DIVERSE CO-DEFENDANT (Western District)

In Marsico v. Unum Group, the carrier removed the case on the basis that there was an ERISA based claim and/or diversity.  Plaintiff brought a breach of contract and bad faith claim against the carriers based on a denial of disability benefits, and also joined the doctor hired by the carrier to perform an IME, on the basis of conspiracy and/or malpractice (the doctor apparently concluding in his IME that there was no disability – at least one not subject to benefits).  The court found that the matter was not covered by ERISA, and that diversity could only be destroyed if there were a fraudulent joinder of the non-diverse doctor defendant.  The court found that “from a  fair reading of the complaint, it appears that plaintiff has set forth, in good faith, reasonable bases in fact and colorable claims against [the doctor], and that [the doctor] has not been fraudulently joined in an effort to defeat diversity of citizenship. Thus, complete diversity jurisdiction does not exist.”  The case was remanded.

Date of Decision:  November 28, 2007

Marsico v. Unum Group, No. 07-1482, 2007 U.S. Dist. LEXIS 87471 (W.D. Pa. November 28, 2007) (Schwab, J.)

L.A.