Opinion
Civ. A. No. 5899.
May 2, 1967.
Harry J. Bryant, Knoxville, Tenn., for plaintiff.
Louis C. Woolf, Knoxville, Tenn., for defendant.
ORDER
This a workmen's compensation case. The plaintiff, a citizen and resident of Tennessee, brought suit, as the Tennessee statute permits, directly against the insurance company rather than against the insured, a Tennessee corporation. The defendant filed a motion to dismiss citing 28 U.S.C. § 1332 (c) and the decision of this Court in Twin City Fire Insurance Co. v. Wilkerson, D.C., 247 F. Supp. 766, construing this statute.
In the case of Carvin v. Standard Accident Insurance Company, 253 F. Supp. 232 (D.C.E.D.Tenn.), Judge Wilson referred to the Wilkerson case and stated that it "merely holds that a policy of fire insurance is not `a policy of liability insurance' within the meaning of 28 U.S.C. § 1332(c)."
In this case the insurer rather than the insured was sued under the language of the statute. Had the insured been sued there would have been no diversity of citizenship and there would have been no jurisdiction. The plaintiff has sought to do by indirection, that is by suit against the insurer, what he could not do directly. But the language of the statute covers this situation like a glove. The insurer was sued directly. Its insured was a citizen of Tennessee and by the terms of the statute, the insurer for purposes of the suit "* * * shall be deemed a citizen of the State of which the insured is a citizen * * *" In the opinion of the Court, there is clearly no diversity of citizenship.
It is ordered that the motion of defendant to dismiss the action be, and the same hereby is, granted.
The Court has been advised by Judge Frank Wilson of the United States District Court at Chattanooga, Tennessee, that he has had the same question in Vines v. United States Fidelity and Guaranty Company, 267 F. Supp. 436, and reached the same decision.