KELLY v. ACE AMERICAN INSURANCE CO et al Notice of Removal

8/6/2019 KELLY v. ACE AMERICAN INSURANCE CO et al Notice of Removal

1/21

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

NICOLE KELLY * CIVIL ACTION NO.

*

*

VERSUS * JUDGE:

*ACE AMERICAN INSURANCE * MAG.:

COMPANY, WERNER ENTERPRISES,

INC. OF NEBRASKA, CRAWFORD

GREEN, PROGRESSIVE COUNTY

MUTUAL INSURANCE COMPANY,

AND MELISSA PETERSON *

* * * * * * * * * * * *

NOTICE OF REMOVAL

NOW INTO COURT, through undersigned counsel, come Defendants, Werner

Enterprises, Inc., ACE American Insurance Company and Crawford Green, who respectfully

aver as follows:

I.

On or about May 5, 2010, Plaintiff, Nicole Kelly, filed a personal injury lawsuit against

Werner Enterprises, Inc., ACE American Insurance Company, Crawford Green, Progressive

County Mutual Insurance Company and Melissa Peterson in the 1st Judicial District Court for the

Parish of Caddo, State of Louisiana, Docket Number 550,359-B entitled Nicole Kelly v. ACE

American Insurance Company, et al. A copy of the Petition for Damages is attached hereto as

1

Case 5:11-cv-00838-EEF-MLH Document 1 Filed 06/07/11 Page 1 of 8 PageID #: 1


2/21

Exhibit 1. The lawsuit arises from an automobile accident which occurred on May 29, 2010 , in

the Parish of Caddo.

II.

Based upon information and belief, Defendant, Werner Enterprises, Inc. was served

through its Louisiana-designated Agent for Service of Process on May 17, 2011; defendant, ACE

American Insurance Company was served through the Louisiana Secretary of State on May 18,

2011; and defendant, Crawford Green was served via the La. Long Arm Statute on May 18, 201.

III.

Defendants Progressive County Mutual Insurance Company and Melissa Peterson have

not yet been served with process so as to subject themselves to the jurisdiction of the 1 st Judicial

District Court for the Parish of Caddo, State of Louisiana, within the meaning and requirements

of La. R.S. 13:3474 and 13:3475.

IV.

This Notice of Removal was properly filed within thirty (30) days of receipt of service of

papers by defendants Werner Enterprises, Inc., ACE American Insurance Company and

Crawford Green, from which it may be ascertained that the case is removable.

V.

Plaintiff, Nicole Kelly, alleges in Paragraph 14 of her Petition for Damages as follows:

Petitioner, NICOLE KELLY, was injured in the aforesaid crash as follows:

a) Head injury;

b) Concussion;

c) Brain injury;

d) Post-Traumatic Stress Disorder

2



3/21

e) Right shoulder strain;

f) Right hand contusion;

g) Left ankle sprain;

h) Bilateral knee sprain;

i) Headaches;

j) Forgetfulness;

k) Short-term memory loss;

l) Lumbar sprain/strain;

m) Central disc bulges at L3-4, L4-5, and L5-S1

VI.

In pertinent part, in Paragraph 9 of her Petition for Damages, plaintiff, Nicole Kelly,

alleged as follows:

At the time and place of aforesaid:

* * * * * * *

e) The defendant, CRAWFORD GREEN, crossed into MELISSA PETERSONs

lane of travel, striking her on the passenger side;

f) MELISSA PETERSON lost control of her Jeep Grand Cherokee and the trailer

and was subsequently struck again by the semi;

g) The force of the collision propelled the Jeep and trailer into the median of 3132

where it finally came to rest; and

h) As a result of the collision, Petitioner, NICOLE KELLY, was seriously and

permanently injured.

3



4/21

VII.

In the second paragraph numbered as Paragraph 14 of the Petition for Damages, Plaintiff,

Nicole Kelley, alleged:

As a result thereof, Petitioner has suffered pain, discomfort, inconvenience and

disability; has been under the care of doctors and therapists; has been forced to endure x-rays and

other diagnostic tests and to take prescription medication; and continues to endure pain, soreness,

memory loss and disability and may require surgery for the lumbar disc bulge.

VIII.

In the paragraph numbered as Paragraph 15 of the Petition for Damages, Plaintiff, Nicole

Kelley, alleged that she .is entitled to recover damages as are reasonable in the premise, for

the following:

a) Past pain and suffering;

b) Future pain and suffering

c) Disability;

d) Past mental anguish;

e) Future mental anguish;

f) Past medical expenses;

g) Future medical expenses;

h) Inconvenience; and

i) Loss of enjoyment of life.

IX.

Based upon the facts of the accident and the allegations made by plaintiff in her Petition

for Damages, defendants have been provided with notice, and it reasonably appears, that, the

4



5/21

damages claimed by Nicole Kelly may exceed the sum of $75,000.00, exclusive of interest and

costs. Louisiana courts have held that in cases with similar type injuries, the damages can be

worth $75,000 and even more. See Campbell v. Webster Parish Police Jury, 36,391 (La.App. 2

Cir. 9/18/02), 828 So.2d 170 (Plaintiff with lumbar and cervical soft-tissue and disc injuries that

were treated conservatively was awarded $75,000 in general damages, exclusive of medical

expenses.); Pannell v. Encompass Ins Co., 2006-1601 (La.App. 3 Cir. 5/2/07); 956 So.2d 152

(Plaintiff was awarded $90,000 in general damages, exclusive of medical expenses, for soft

tissue injuries to her back, neck, and shoulder with aggravation of lumbar herniated disc and a

degenerative back condition.); Collier v. Benedetto, 04-1025, 04-1026 (La.App. 5 Cir. 2/15/05),

897 So.2d 775 (Plaintiff was awarded $75,000 in general damages, exclusive of medical

expenses or lost wages, for cervical disc injuries that were treated conservatively.); See Nunez v.

Commercial Union Ins. Co, 00-106 (La. App. 3 Cir. 8/23/00); 774 So.2d 208, where plaintiff hit

her head in an automobile accident and suffered a concussion and traumatic brain injury which

caused headaches. She was awarded $325,000 which was affirmed on appeal. Id. at 224. See

Seals v. Shelter Ins. Companies, 39,252 (La. App. 2 Cir. 3/2/05); 894 So.2d 1259 (post-

concussive syndrome and post-traumatic stress disorder, headaches, neck pain all supported an

award of $125,000);Jolly v. Sewerage and Water Bd., 00-1878 (La. App. 4 Cir. 11/21/01), 802

So.2d 987 ($75,000 award for a plaintiff with concussion syndrome and post-traumatic

headaches,); Weaver v. Siegling, 569 So.2d 97 (La. App. 4th Cir. 1990) ($100,000 awarded to

plaintiff with concussion and post-traumatic stress disorder); Russell v. Noullet, 97-0085, 97-

0086 (La. App. 4 Cir. 1/14/98); 706 So.2d 540 (revd on liability grounds at 98-0916 (La.

12/1/98); 721 So.2d 868) ($100,000 award for post-traumatic concussion syndrome and

headaches. See Miller v. Bailey, 621 So.2d 1174 (La. App. 3rd Cir. 1993) ($212,000 awarded to

5



6/21

plaintiff diagnosed with head injury, memory lapses and headaches); Locke v. Young, 42,703

(La. App. 2 Cir. 12/12/07); 973 So.2d 831 ($125,000 award for concussion, short-term recording

memory difficulty); Brandao v. Wal-Mart Stores, Inc., 35,368 (La. App. 2 Cir. 12/19/01), 803

So.2d 1039 (headaches, loss of memory, impaired concentration and brain dysfunction supported

an award of $226,000).

X.

Werner Enterprises, Inc. is a corporation with both its place of incorporation and its

principal place of business is in the State of Nebraska.

XI.

ACE American Insurance Company has both its place of incorporation and its principal

place of business in the State of Pennsylvania.

XII.

Defendant, Crawford Green, is domiciled in and a citizen of the State of New Mexico.

XIII.

Based on the information in Petition for Damages, Plaintiff, Nicole Kelly resides in

Holiday, Florida and is a citizen of the State of Florida.

XIV.

Based on the information in the Petition for Damages, Defendant, Melissa Peterson, is a

resident of Seminole, Florida and is a citizen of the State of Florida; based upon information and

belief and the information in the Petition for Damages, Defendant, Progressive County Mutual

Insurance Company is an insurance company incorporated in the State of Texas and with its

principal place of business in Austin, Texas.

6



7/21

XV.

There is complete diversity between the plaintiff and all defendants. As of the date of

filing of this Notice of Removal, plaintiffs have not named any other parties as defendants.

XVI.

In accordance with the foregoing, this is a civil action over which this Court has original

jurisdiction pursuant to 28 U.S.C. 1332 (a), and is one which may be removed to this Court by

defendants pursuant to 28 U.S.C. 1441, in that it is a civil action wherein the matter in

controversy exceeds the sum of $75,000.00, exclusive of interest and costs, and is between

citizens of different states.

XVII.

In accordance with 28 U.S.C. 1446(d), defendants will provide appropriate Notice of

this Removal to the plaintiffs and to the Clerk of Court for the 1st Judicial District Court for the

Parish of Caddo, State of Louisiana.

JURY DEMAND

XVIII.

Defendants are entitled to and request a trial by jury on all issues herein.

WHEREFORE, defendants, Werner Enterprises, Inc., ACE American Insurance

Company and Crawford Green, together pray that the action entitled Nicole Kelly v. ACE

American Insurance Company, et a. bearing Docket Number 550,359-B and pending in the 1st

Judicial District Court for the Parish of Caddo, State of Louisiana, be removed from the state

court docket to the United States District Court for the Western District of Louisiana, Shreveport

Division.

7



8/21

8

Respectfully submitted,

s / C. Michael Parks__________________________________GUY D. PERRIER, T.A. #20323

C. MICHAEL PARKS, #19727ERIC W. SELLA, #33474

365 Canal Street, Suite 2550New Orleans, LA 70130Telephone: (504) 212-8820Facsimile: (504) 212-8825

E-mail: [email protected]@[email protected]

ATTORNEYS FOR DEFENDANTS, WERNERENTERPRISES, INC., ACE AMERICAN

INSURANCE COMPANY AND CRAWFORD

GREEN

CERTIFICATE OF SERVICE

I hereby certify that the foregoing pleading has been delivered to all counsel of record,either through the CM/ECF system, depositing a copy of same in the United States mail, firstclass postage prepaid, by hand delivery or by facsimile transmission, this 7th day of June, 2011 attheir last known address of record.

s/ C. Michael Parks

__________________________________C. MICHAEL PARKS

F:\Client Files\Active Files P&L\50730- GDP\PLEADINGS\Notice of Removal.doc

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


9/21

Case 5:11-cv-00838-EEF-MLH Document 1-1 Filed 06/07/11 Page 1 of 7 PageID #: 9


10/21



11/21



12/21



13/21



14/21



15/21



16/21



17/21



18/21



19/21

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

NICOLE KELLY * CIVIL ACTION NO.

*

*

VERSUS * JUDGE:

*

ACE AMERICAN INSURANCE * MAG.:

COMPANY, WERNER ENTERPRISES,INC. OF NEBRASKA, CRAWFORD

GREEN, PROGRESSIVE COUNTY

MUTUAL INSURANCE COMPANY,

AND MELISSA PETERSON *

* * * * * * * * * * * *

LIST OF PARTIES

NOW COME defendants, ACE American Insurance Company, Werner

Enterprises, Inc. and Crawford Green, who represent that the following is a list of

attorneys involved in this case and the parties they represent:

1. Nicole Kelly - Plaintiff

represented by:

J. Patrick Hennessy, Esq. (La. Bar # 6791)Law Offices of J. Patrick Hennessy

401 Edwards Street, Suite 1310

P.O. Box 91Shreveport, LA 71161-0091

Tel: 318-221-8000

Fax: 318-221-4300

1



20/21

2. Werner Enterprises, Inc.

ACE American Insurance Company and

Crawford Green- Defendantsrepresented by:

Perrier & Lacoste, LLC.,Guy D. Perrier, C. Michael Parks, andEric W. Sella

One Canal Place

365 Canal Street, Suite 2550

New Orleans, Louisiana 70130Ph: (504) 212-8820

Facsimile: (504) 212-8825

3. Defendants, Progressive County Mutual Insurance Company and MelissaPetersonDefendantsRepresented by:

UnknownNot yet served

Respectfully submitted,

S/ C. Michael Parks

__________________________________

GUY D. PERRIER, T.A. #20323C. MICHAEL PARKS, #19727

ERIC W. SELLA, #33474

365 Canal Street, Suite 2550New Orleans, LA 70130

Telephone: (504) 212-8820

Facsimile: (504) 212-8825

E-mail: [email protected]

[email protected]

[email protected]

ATTORNEYS FOR DEFENDANTS,

ACE AMERICAN INSURANCE

COMPANY, WERNER ENTERPRISES,

INC. AND CRAWFORD GREEN

2

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


21/21

CERTIFICATE OF SERVICE

I hereby certify that the foregoing pleading has been delivered to all counsel ofrecord, either through the CM/ECF system, depositing a copy of same in the United

States mail, first class postage prepaid, by hand delivery or by facsimile transmission, this7th

day of June, 2011, at their last known address of record.

S/ C. Michael Parks

__________________________________

C. MICHAEL PARKS

F:\Client Files\Active Files P&L\50730- GDP\PLEADINGS\Corporate Disclosure.doc


KELLY v. ACE AMERICAN INSURANCE CO et al Notice of Removal

Documents

Transcript of KELLY v. ACE AMERICAN INSURANCE CO et al Notice of Removal