Humble Indep School v. CGU Insurance Co ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 14, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-20071
HUMBLE INDEPENDENT SCHOOL DISTRICT,
Plaintiff-Appellant,
versus
CGU INSURANCE CO.; GENERAL ACCIDENT INSURANCE COMPANY;
ROBERT WITKOWSKI; COST MANAGEMENT, INC.;
WILLIAM L. McGRATH, Individually doing business as
Cost Management, Inc.;
POTOMAC INSURANCE COMPANY OF ILLINOIS,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
H-00-CV-3420
Before GARWOOD, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Humble Independent School District filed this suit in state
district court against its insurance carrier, CGU Insurance
Company, and other defendants, including an adjuster working for
CGU, Robert Witkowski. CGU removed the case to the United States
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
District Court on the basis of diversity. The district court
denied HISD’s motion to remand the case, apparently persuaded that
HISD stated no claim under Article 21.21 of the Texas Insurance
Code against Witkowski, a local defendant whose joinder as a party
would preclude diversity jurisdiction.
The Texas Supreme Court in Liberty Mutual Insurance Co. v.
Garrison Contractors, Inc., 966 S.W.2d 482 (Tex. 1998), held that
Section 16 of Article 21.21, Texas Insurance Code, provides a cause
of action against employees of companies arising from their
servicing of insurance policies, including employees acting within
the scope of their employment.
We are persuaded that the district court was in error in its
apparent decision that the school district stated no claim against
Witkowski and in denying the motion to remand the case to state
court. We must therefore remand the case to the district court
with instructions to remand the case to the state court from which
it was removed. The judgment below is vacated for want of subject
matter jurisdiction.
VACATED and REMANDED with instructions.
2