Rafferty v. Frock , 135 F. Supp. 292 ( 1955 )

135 F. Supp. 292 (1955)

Daniel Irving RAFFERTY
v.
Harry Franklin FROCK
and
Robert Menchey Milligan, Third-Party Plaintiff (CITIZENS' CASUALTY COMPANY OF NEW YORK, Third-Party Defendant).

Civ. No. 8475.

United States District Court D. Maryland, Civil Division.

November 9, 1955.

Gould Gibbons, Sachs & Sachs, Baltimore, Md., for plaintiff.

Stanford I. Hoff and Sponseller & Hoff, Westminster, Md., for Robert Menchey Milligan, third-party plaintiff.

David K. Ebersole, Jr., Baltimore, Md., for Citizens Casualty Co., third-party defendant.

THOMSEN, Chief Judge.

Rafferty brought a tort action in the Circuit Court for Carroll County, Maryland, against Frock, the driver, and Milligan, the owner, of an automobile. Milligan filed a third-party complaint against Citizens' Casualty Company of New York, alleging that he was the holder of an "Automobile Liability" policy issued by that company, a copy of which was filed with the third-party complaint, and brief portions of which were quoted therein.

Citizens' Casualty Company filed a petition for removal, together with the customary bond and a copy of the process and pleading served upon it. The petition alleged that both the original plaintiff and the third-party plaintiff are citizens of Maryland and that the Casualty Company is a New York corporation. Shortly thereafter Rafferty, the original plaintiff, filed a motion to remand on the ground that the action is not removable, and the Casualty Company filed a motion to dismiss the third-party complaint.

A. Section 1441(c) of Title 28 U.S. C.A., as enacted by the Act of June 25, 1948, c. 646, 62 Stat. 937, provides:

"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 non-removable 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."

The new statute is quite different from the old provisions authorizing the removal of "separable controversies", which controlled the decision in Brown v. Hecht Co., D.C.Md.1947, 78 F. Supp. 540, in which Judge Chesnut discussed the difference between a "separable controversy" and a "separate controversy".

The controversy between Milligan and the Casualty Company is "a separate and independent claim or cause of action, which would be removable if sued upon alone". Therefore, the entire case was properly removed to this court; but this court, in the exercise of its discretion, will remand to the Circuit Court for Carroll County the matters involved in the controversy between Rafferty on the one hand and Frock and Milligan on the other. These matters would not "otherwise", i. e. apart from sec. 1441(c), have been within the original jurisdiction of this court. They raise questions of negligence; the controversy between Milligan and the Casualty Company involves questions of contract; they should be kept separate; Northwestern Nat. Ins. Co. v. Samuel R. Rosoff, Ltd., 195 Md. 421, 73 A.2d 461; Lee's, Inc., v. Transcontinental Underwriters, D.C.Md., 9 F.R.D. 470, 471. This partial remand is also supported by the Maryland rule against the injection into a tort case of the fact that the defendant is insured. International Co. v. Clark, 147 Md. 34, 42, 127 A. 647.

B. Before ruling on the motion to dismiss the third-party complaint, I will require the Casualty Company, pursuant to sec. 1447(b), to file with the clerk of this court copies of all records and proceedings in the Circuit Court for Carroll County, including a copy of the insurance policy and all endorsements thereon. And, since the third-party complaint does not show clearly what relief is prayed, I will permit the third-party plaintiff, Milligan, to file an amended complaint against the Casualty Company within thirty days, if he wishes to do so.

I will sign appropriate orders giving effect to these rulings.