Nicholas Malfitano Apr. 30, 2015, 10:48am


PHILADELPHIA – The roundabout route of a New Jersey man’s lawsuit against a major insurance provider has sent the case back to state court for a second time, according to an opinion issued April 23 by a Philadelphia federal judge.

According to the lawsuit, Francis Altieri of Marlton, N.J., was driving west on I-676 in Philadelphia on June 29, 2011, when his vehicle was rear-ended by another vehicle driven by Hasan Ozkan of Philadelphia.

In the collision, Altieri claimed to have suffered “severe, permanent, painful and debilitating injuries.”

Altieri’s list of injuries allegedly sustained in the crash included “cervical and lumbar radiculopathy, closed head injury, high-grade partial thickness tear of the left distal supraspinatous, tear of the left anterior labrum and longitudinal tear of the left bicipital groove, requiring surgery,” in addition to mental pain and anguish, embarrassment and a severe loss of earnings capacity.

At the time of the accident, Ozkan was covered by a policy issued through Cure Personal Insurance Company in the amount of $15,000, and that company offered Altieri a claim of $14,500 – which court records show he accepted, after receiving consent from his own insurance provider, Liberty Mutual Fire Insurance Company.

When the accident took place, Altieri was covered through Liberty Mutual under a policy that afforded benefits for underinsured motorists in the amount of $235,000.

Due to Ozkan’s insurance company not being able to fully compensate Altieri, the lawsuit alleges the plaintiff filed a claim with Liberty Mutual applying for that same underinsured motorist’s coverage.

After reviewing evidence of the accident, including photographs provided by Altieri and his counsel, Liberty Mutual responded that Altieri’s injuries were not consistent with a rear-end collision and the accident was “not a severe impact.”

According to the suit, both Altieri and Liberty Mutual did not consent to the matter being heard in arbitration, and Liberty Mutual instructed Altieri and his counsel they had the option to file a lawsuit in this regard to recover the $235,000 worth of coverage.

Altieri filed litigation in the Philadelphia County Court of Common Pleas on Feb. 12 in order to do just that. Court records indicate Liberty Mutual was served with Altieri’s suit on Feb. 25.

As Altieri resides in New Jersey and Liberty Mutual is based in Boston, the defendants cited diversity of citizenship and sought to have the matter removed to the Eastern District Court of Pennsylvania on Mar. 26.

However, in their removal motion, the defendants did not allege the amount Altieri was seeking was in excess of $75,000; only that it “may” be in excess of that amount.

As a result, Judge Timothy J. Savage of the Eastern District Court of Pennsylvania ordered the case remanded back to the Philadelphia County Court of Common Pleas on April 1.

However, Liberty Mutual filed a second motion on April 8 to once again remove the matter to federal court, this time noting the disputed amount was, in fact, in excess of $75,000.

With the plaintiff then counter-filing to remand the case back to state court and the matter once again before Savage, he authored an opinion on the nature of the case’s proper jurisdictional venue last Thursday.

“A defendant may remove an action from the state court a second time, as long as it does so within the thirty-day time limit,” wrote Savage.

“Liberty was served with the complaint on Feb. 25, 2015. It had until March 27, 2015, thirty days after service of the complaint, to remove the action. The second notice of removal was filed on April 8, 2015, forty-two days after service of the complaint. Therefore, it was untimely.”

Contrary to Liberty Mutual’s argument, Savage cited federal law in explaining its second motion to remove the matter to the Eastern District Court was not an amended pleading, and thus did not restart the 30-day removal time limit.

“Because the second notice of removal is untimely, we shall grant the motion to remand this action to the state court,” wrote Savage.

The plaintiff is seeking damages in excess of $75,000 in this case, along with interests and court costs. The plaintiff is represented by Stephen J. Schatz of Master Weinstein Schatz Moyer P.C. of Philadelphia.

The defendant is represented by Gregory Voci of Wolf Rubinate & Hasson, also of Philadelphia.

United States District Court for the Eastern District of Pennsylvania case 2:15-cv-01818

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