In May 2019, after renewing their policy, the Cacereses submitted a separate claim for property damage due to heavy rain and roof collapse. Scottsdale assigned a claim number and issued the Cacereses a check for $7,975.04.

On June 22, 2019, the Cacereses presented Scottsdale with a repair estimate for $91,862.51 that covered the estimated damages for both claims.

On September 5, 2019, the Cacereses sued Scottsdale in a Florida state court. Their complaint alleged that they were seeking damages in excess of $15,000, and they also sought to recover attorneys' fees and costs pursuant to Florida Statutes Section 627.428.

Scottsdale removed the state court action to federal court, indicating among other things that the amount in controversy was $75,033.83, based on the $91,862.51 repair estimate minus the $10,975 check paid and the $5,853.68 wind deductible.

The Cacereses moved to remand, arguing that the amount in controversy did not exceed $75,000. Specifically, they contended that (1) Scottsdale could not use a pre-suit damage estimate as a basis for establishing the amount in controversy, and (2) even using the pre-suit damage estimate, Scottsdale failed to account for the second check to the Cacereses, which decreased the amount in controversy from $75,033.83 to $67,058.79.

For its part, Scottsdale countered that the amount in controversy requirement was satisfied because the Cacereses sought to recover attorneys' fees and costs pursuant to Section 627.428, which, through trial, could easily exceed the remaining $7,941.21 needed to establish the amount in controversy under the Cacereses' interpretation.

The District Court's Decision

The district court granted the Cacereses' motion to remand.

In its decision, the district court first ruled that district courts may consider pre-suit demands in evaluating whether a case has been properly removed.

The district court then observed that the Cacereses' total estimate of damages for the claims from both the September 10, 2017 loss and the May 13, 2019 loss amounted to $91,862.51; that Scottsdale had issued two checks to the Cacereses for the losses, for $10,975 and for $7,975.04; and that the wind deductible of $5,853.68 had been applied to the 2017 claim.

Thus, the district court said, it was "clear" that the amount in controversy was $67,058.79.

The district court next considered whether the Cacereses' bid for their attorneys' fees counted toward the amount in controversy.

The district court pointed out that the issue of including statutory attorneys' fees in the amount in controversy had caused a split in district courts within the U.S. Court of Appeals for the Eleventh Circuit. See Bender v. GEICO General Ins. Co., No. 8:17-cv-872-T-33TBM (M.D. Fla. Apr. 17, 2017) (discussing the divide among courts in the circuit over whether to include the projected amount of attorneys' fees or only attorneys' fees as of the time of removal); Brown v. American Express Co., Inc., No. 09-61758-CIV (S.D. Fla. Feb. 10, 2010) (discussing the "[c]onflicting case law" that exists as to whether the amount of attorneys' fees for the amount-in-controversy analysis should be calculated as of the date of removal or through the end of the case).

The district court then ruled that the amount in controversy did "not include highly speculative, prospective amounts" of attorneys' fees but, rather, included only those fees accrued as of the time of removal. According to the district court, this ruling was in line with Eleventh Circuit precedent establishing that "[j]urisdictional facts are assessed on the basis of plaintiff's complaint as of the time of removal." Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 n.13 (11th Cir. 1994) (citations omitted).

The district court noted that Scottsdale had provided no evidence to establish that the Cacereses had accrued $7,941.21 in attorneys' fees as of the time of removal. Accordingly, the district court concluded, Scottsdale had not satisfied its burden of establishing that the amount in controversy exceeded $75,000.

The case is Caceres v. Scottsdale Ins. Co., No. 19-cv-24163-BLOOM/Louis (S.D. Fla. Dec. 5, 2019). Attorneys involved include: For Jaclyn Caceres, Xavier Caceres, Plaintiffs: John E. Hughes, III, John W. McLuskey, LEAD ATTORNEYS, McLuskey, McDonald & Hughes, P.A., Miami, FL; Lisa Anne Riddle, McLuskey, McDonald and Hughes, Miami, FL. For Scottsdale Insurance Company, Defendant: Gary Joseph Spahn, Jr., LEAD ATTORNEY, Cabaniss Smith Toole & Wiggins, Orlando, FL; Lucie Ailene Robinson, LEAD ATTORNEY, Wilson Elser Moskowitz Edelman, Dicker, LLP, Orlando, FL; Nyasha Simone Seale, Wilson Elser Moskowitz Edelman & Dicker, Orlando, FL.