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Case 1:05-cv—O0762-SLR Document 9-3 Filed 12/O2/2005 Page1 0f4
EXHIBIT B

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Not Reported in F.Supp. Page l
Not Reported in F.Supp., 1991 WL 228344 (D.Kan.)
(Cite as: 1991 WL 228344 (D.Kan.))
H Plaintiffs instituted this gamishment action against
Scottsdale Insurance Company on July 8, 1991.
Motions, Pleadings and Filings Scottsdale was not a party to the original action
between plaintiffs and the City of Wichita but was
Only the Westlaw citation is currently available. the liability insurer for the Wichita River Festival
and had listed the City as an additional insured on
its policy covering the festival activities. On
United States District Court, D. Kansas. August 13, 1991, Scottsdale tiled a notice of
Scott E. MCINTOSH and Steven R. McIntosh, removal of the garnishment proceeding to the
Plaintiffs, United States District Court. The petition for
v. removal alleged that diversity of citizenship existed
SCOTTSDALE INSURANCE COMPANY, between the plaintiffs and the gamishee and that the
Defendant. amount in controversy exceeded $50,000. In
No. 91-1344-K. response, plaintiffs tiled a motion to remand.
Oct. 9, 1991. 28 U.S.C. § l44l(a) authorizes removal of a "civil
Jack Scott Mclnteer of Depew, Gillen & Rathbun, action" from state court to federal court.
Wichita, Kan., for plaintiffs. Subsection (a) of § 1441 provides:
Stephen M. Kerwick of Foulston & Sietkin, Except as otherwise expressly provided by Act of
Wichita, Kan., for defendant. Congress, any civil action brought in a State court
of which the district courts of the United States
MEMORANDUM AND ORDER have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of
PATRICK F. KELLY, District Judge. the United States for the district and division
embracing the place where such action is pending.
*1 This matter is before the court as a result of
Scottsdale Insurance Company's removal of a Plaintiffs allege the present garnishment
garnishment action pending against it in Sedgwick proceeding is not an independent "civil action" for
County District Court. In response, plaintiffs in the purposes of removal, but instead, is an ancillary
gamishment action, Scott and Steven McIntosh, proceeding of the original action against the City.
have filed a motion to remand the proceedings to They argue that state law rather than federal law
the state court. govems the nature of gamishment proceedings for
removal purposes. Scottsdale contends the
Plaintiffs initiated a personal injury action in state gamishment proceeding is an independent civil
court against the City of Wichita alleging action properly removable. In support of its
negligence for failure to wam of a dangerous contention, Scottsdale argues that this gamishment
condition and seeking damages for injuries proceeding involves a new party, the gamishee, and
sustained in a fall on city property. The City did raises an issue not litigated in the original action,
not deny liability and was assessed 100% of the that is, whether its policy provided coverage for
fault. Plaintiffs obtained a favorable judgment plaintiffs injuries.
against the City in the amount of $74,571.15 plus
their costs. It is a well-settled rule that a suit which is merely
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Not Reported in F.Supp. Pagc 2
Not Reported in F.Supp., 1991 WL 228344 (D.Kan.)
(Cite as: 1991 WL 228344 (D.Kan.))
ancillary or supplemental to another action cannot Hawkeye Casualty Co., 185 F.2d 96 (8th Cir.1950))
be removed from state court to federal district court. (whether action removable controlled by federal law
Federal Savings and Loan Ins. Corp. v. Quinn, 419 not state law); 1A Moore's Federal Practice 11
F.2d 1014 (7th Cir.l969); Reynolds v. Reynolds, 0.l67[12.-3] (2d ed.1991).
309 F.2d 395 (5th Cir.l962); Western Medical
Properties v. Denver Opportunity, 482 F.Supp. A case factually similar to the one presented was
1205, 1207 (D.Colo.l980); 1A Moore's Federal considered by Judge Crow in Bridges for Bridges
Practice 1] 0.157[4.-11] (2d ed.1991). There is v. Bentley by Bentley, 716 F.Supp. 1389
some confusion, however, as to whether a (D.Kan.1989), wherein the plaintiff obtained a
gamishment proceeding should be characterized as favorable judgment in state court for personal
ancillary or independent, and whether state or injuries suffered while extending aid to automobile
federal law govems the characterization. accident victims. Subsequently, the plaintiff tiled a
petition for gamishment against the defendant's
*2 Plaintiffs contend state law should determine automobile liability insurer. Id at 1390. The
whether garnishment proceedings are ancillary or gamishee tiled a petition for removal to the federal
independent civil actions. Several circuit and court based upon 28 U.S.C. § l44l(c), claiming the
district court opinions support this contention. See garnishment proceeding was a separate and
Fleeger v. General Ins. Co. of America, 453 F.2d independent action. Judge Crow detennined the
530, 532 (10th Cir.1972) (Oklahoma law applied to characterization of a gamishment action for removal
characterization of gamishment proceeding as purposes was a matter of federal law rather than a
independent action); London & Lancashire matter determined by construing each state's
Indemnity Co. v. Courtney, 106 F.2d 277, 283 (10th gamishment statute. Id at 1391. The gamishment
Cir.l939) (Oklahoma law applied to action was found to be properly removable because
characterization of garnishment proceeding as it was an independent action from the primary
independent action); Western Medical Properties v. liability action previously litigated. This
Denver Opportunity, 482 F.Supp. 1205, 1207 conclusion was based upon the fact that the
(D.Co1o.1980) (Colorado law applied to garnishment proceeding involved a new party, the
characterization of garnishment proceeding as gamishee, and involved the litigation of a new
ancillary action). issue, the existence of liability on the part of the
insurer-garnishee. Id at 1392. See also
In recent years, however, a trend has developed in Smotherman v. Caswell, 755 F.Supp. 346, 348,
which the courts have tumed to federal law to (D.Kan.l990) (nature of gamislunent action
characterize gamislunent proceedings as either govemed by federal law rather than state law);
ancillary or independent civil actions for removal Armour v. Reigel and Ranger Insurance Company,
purposes. Swanson v. Liberty National Ins. Co., Nos. 79-4152 and 79-4153, slip op. at 3 (D.Kan.
353 F.2d 12, 13 (9th Cir.1965), afal 353 F.2d 12 Apr. 12, 1982) (new party and new claims render
(9th Cir.1965) (separability as it affects removal is a gamishment action separate and independent cause
federal question); Randohvh v. Employers Mutual of action).
Liability Ins. C0. of Wis., 260 F.2d 461, 464 (8th
Cir.1958), cert. denied 359 U.S. 909 (1959) *3 Upon examination of the above case law and
(federal law, not Missouri, controlled other authorities, this court agrees that federal law
characterization of gamishment proceedings for rather than state law should govem the
removal purposes); Richmond v. Allstate Ins. Co., characterization of garnishment proceedings for
624 F.Supp. 235, 237 (E.D.Pa.l985) removal purposes. See Chicago RI & P.R.R. v.
(characterization of gamishment proceedings for Stude, 346 U.S. 574, 580 (1953). After
removal purposes regarded as a matter of federal consideration of the facts in the present case, the
law); E.C. Robinson Lumber Co. v. Fort, 112 court tinds this garnishment proceeding is not
F.Supp. 242, 243, (E.D.Mo., 1953) (citing Stoll v. ancillary or supplementary to the primary liability
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Not Reported in F.Supp. Page 3
Not Reported in F.Supp., 1991 WL 228344 (D.Kan.)
(Cite as: 1991 WL 228344 (D.Kan.))
action. Rather, the gamishment proceeding in the
instant action involves a new party not present in
the personal injury action, and involves an issue not
litigated in the prior action. The issue in this action
is whether the garnishee's insurance policy, issued
to the City, covered plaintiffs injuries. Scottsdale
contends its policy covered only those damages in
association with the river festival activities and
denies liability for injuries caused by ongoing
building hazards. Clearly, this garnislunent
proceeding is a new and independent civil action
requiring litigation on the existence of a new
liability. Therefore, since jurisdictional requisites
have been met, the garnishment action is a properly
removable "civil action".
IT IS THEREFORE ORDERED this 9th day of
October, 1991, that plaintiffs motion to remand
(Dlct. No. 6) is denied. A status conference will be
taken up in the court's chambers on November 7,
1991, at 9:00 A.M.
Not Reported in F.Supp., 1991 WL 228344
(D.Kan.)
Motions, Pleadings and Filings (Back to top)
· 6:91cv0l344 (Docket) (Aug. 13, 1991)
END OF DOCUMENT
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