Rex T. Morrison v. Allstate Indemnity Co.

Rex T. MORRISON, Harold Highley, et al., Plaintiffs-Appellants,

v.
ALLSTATE INDEMNITY COMPANY, Nationwide Mutual Fire Insurance Company, et al., Defendants-
Appellees.

No. 99-14141.
United States Court of Appeals,

Eleventh Circuit.

Sept. 26, 2000.
Appeal from the United States District Court for the Middle District of Florida. (No. 98-00377-CIV-j-20C),
Harvey E. Schlesinger, Judge.

Before CARNES, HILL and KRAVITCH, Circuit Judges.

CARNES, Circuit Judge:
This putative diversity class action suit arises out of a dispute over insurance coverage for the

diminished value of a vehicle after it sustains physical damage and is repaired. The district court dismissed

the suit, concluding that the plaintiffs failed to state a claim upon which relief can be granted, and the
plaintiffs appealed. However, we do not reach the merits of the plaintiffs' arguments on appeal because it
appears that the district court lacked subject matter jurisdiction over this lawsuit. For the following reasons,

we remand the case to the district court to allow the plaintiffs an opportunity to prove that jurisdiction is
present.
I. BACKGROUND

The named plaintiffs in this case brought this suit against nine insurance companies in the United
States District Court for the Middle District of Florida.1 In their Second amended complaint, the plaintiffs

1
Each of the named plaintiffs (six couples and three individuals) owned vehicles insured during the
relevant times by one of the nine defendants. Listed below are the named plaintiffs and their respective
insurers:

Plaintiff Defendant

Rex T. Morrison Allstate Indemnity Company

Harold and Gael Highley Nationwide Mutual Fire Insurance Company
Pamela M. Wilcox State Farm Mutual Automobile Insurance Company

Robert and Edith Brown Hartford Insurance Company of the Midwest
Berlie and Flora Caudill Integon General Insurance Corporation
sought to invoke the district court's diversity jurisdiction pursuant to U.S.C. § 1332(a), alleging that the matter
in controversy exceeded $75,000 and that diversity of citizenship existed between the plaintiffs, who are all

citizens of Florida, and the nine non-Florida insurers. The plaintiffs brought suit on behalf of themselves and

all other persons or entities similarly situated.
Each plaintiff owned a vehicle insured by one of the defendants. The insurance policies provide

coverage for physical damage to the vehicle, subject to specified limitations of liability. For example, the

policy for Allstate Indemnity Company involved in this case provides that "Allstate will pay for direct and

accidental loss to your insured auto or a non-owned auto ... from a collision with another object or by upset
of that auto...." This coverage for loss is limited by the following policy language: "Allstate's limit of

liability is the actual cash value of the property or damaged part of the property at the time of loss....

However, our liability will not exceed what it would cost to repair or replace the property or part with other
of like kind and quality." In other words, the policies limit the defendants' liability to the lesser of (1) the cash

value of the vehicle, or (2) the cost to repair the vehicle.2

The dispute in this case centers on whether, under Florida law, this policy language requires the
defendants to compensate the plaintiffs for the diminished value of their vehicle after its has been

repaired—the difference between the pre-accident market value of the vehicle and its market value after it
has been repaired. The plaintiffs say it does, the defendants say it does not. The dispute matters because
there is a difference in value between pre-wrecked value and fully repaired post-wreck value. For whatever

reason (probably skepticism about the efficacy of automobile repairs) people generally will pay more for a
used vehicle that has never been wrecked than they will for what is otherwise the same vehicle that has been
wrecked and fully repaired. The difference is what the plaintiffs refer to as the "diminished value" of a

repaired vehicle.

The plaintiffs filed this class action, alleging that the defendants have failed to pay them for the

James E. Williams GEICO General Insurance Company

William and Gael Moten Atlanta Casualty Company
Samuel and Frances Perry Allstate Insurance Company

Bradley and Kendra Emerson State Farm Fire and Casualty Company.
2
Each of the nine plaintiffs has a different insurance policy provided by one of the nine defendants,
none of which materially differ with respect to the coverage for loss to the vehicle and the limitation of
liability clauses at issue in this case.
diminished value of their wrecked but repaired vehicles as they contend is required by the policy language

and Florida law. They further allege that the defendants "knowingly, intentionally, and wrongfully charged

and received premiums for full coverage ... with no intent to provide Diminished Value Coverage and have
established a practice of not paying diminished value loss." The plaintiffs seek to certify the following class

and subclass:
(a) a "Policyholder Class" consisting of all persons residing in the State of Florida, who during the
Class Period ... have or had purchased motor vehicle insurance policies from one or more of the
Defendants providing "first party" motor vehicle physical damage coverage ... but whom Defendants
have deprived and are depriving of the benefit of "Diminished Value" coverage (i.e., coverage for
the risk of diminution in value to their vehicles in the event their vehicles are physically damaged and
later fully repaired, but still have a lower market value after repairs have been completed due to the
seriousness of the physical damage); and (b) a "Damaged Vehicle Subclass" consisting of all persons
residing in the State of Florida who have not been paid Diminished Value compensation by
respective Defendants as their "first party" insurer after their insured vehicle has actually been
damaged and suffered Diminished Value and has been repaired.3

According to the plaintiffs' allegations, the size of the policyholder class exceeds one million, but
they do not allege a specific number of members in the Damaged Vehicle Subclass. Each of the named

plaintiffs is a member of the subclass.
On behalf of the entire Policyholder Class, the plaintiffs assert three claims: (1) breach of contract,

(2) unjust enrichment, and (3) injunctive relief. Although styled as separate claims, both the breach of
contract and unjust enrichment claims are based on the theory that the class members have paid premiums
for diminished value coverage which the defendants have not provided, and have no intention of providing,

and thus, the defendants have been unjustly enriched by the amount of the premiums attributable to
diminished value coverage. In both claims, the plaintiffs allege that they "suffered damages including the
actuarial value of the Diminished Value Coverage."

In the claim for injunctive relief, the plaintiffs request that the defendants be permanently enjoined

from: (1) depriving their insureds of diminished value coverage required by the insurance policies, (2) failing
to disclose to insureds, whose vehicles have been damaged and repaired, the defendants' obligation to pay

for diminished value, and (3) failing to pay for diminished value loss on vehicles actually damaged. The
plaintiffs also request that the defendants be required to provide written notice to class members, and future

3
The plaintiffs further defined the "Damaged Vehicle Subclass" as "consist[ing] of all Policyholder
Class Members that have or had a vehicle damaged during the applicable coverage period, and where: (a)
the vehicle was repaired at a cost of $3,000 or more, or has incurred damages of 20% or more of the
vehicle's fair market pre-accident value; (b) the vehicle was no more than five years old at the time of the
incident causing the damage; (c) the policyholder has not been paid or received Diminished Value
compensation from their respective Defendant insurer."
insureds, disclosing to them that diminished value coverage is provided by their insurance policies.

In addition to the three claims asserted on behalf of the entire class, the plaintiffs also assert a claim
for breach of contract on behalf of the Damaged Vehicle Subclass. Under this claim, the plaintiffs maintain

the defendants breached the terms of the policies by failing to pay compensation for the diminished value

incurred by the policyholders who have filed claims. They seek damages for the uncompensated diminished

value to their vehicles and attorney's fees and costs pursuant to Fla. Stat. § 627.428.
The defendants filed separate motions to dismiss. The district court granted the defendants' motions

to dismiss, holding that the plaintiffs failed to state a claim upon which relief can be granted. The court
reasoned that Florida law did not automatically impose diminished value coverage absent a specific

agreement, and therefore, the plaintiffs' complaint did not sufficiently allege a breach of contract. The

plaintiffs appealed.
On appeal, we raised the issue of whether the putative class action involved a sufficient amount in
controversy to sustain federal diversity jurisdiction under 28 U.S.C. § 1332. At our request, the parties

submitted supplemental briefs on that issue. Having reviewed the supplemental briefs and the record in this
case, as well as having discussed the issue extensively at oral argument, we conclude that the jurisdictional

issue is dispositive of the case—at least for the time being—and accordingly, we do not address the merits
of the plaintiffs' contention that the district court erred in dismissing the complaint for failure to state a claim.
II. DISCUSSION

Federal courts have limited subject matter jurisdiction, or in other words, they have the power to

decide only certain types of cases. See University of South Alabama v. American Tobacco Co., 168 F.3d 405,

410 (11th Cir.1999). While Article III of the Constitution sets the outer boundaries of that power, it also vests

Congress with the discretion to determine whether, and to what extent, that power may be exercised by lower

federal courts. See Palmore v. United States, 411 U.S. 389, 400-01, 93 S.Ct. 1670, 1678, 36 L.Ed.2d 342

(1973). Consequently, lower federal courts are empowered to hear only cases for which there has been a
congressional grant of jurisdiction, and once a court determines that there has been no grant that covers a

particular case, the court's sole remaining act is to dismiss the case for lack of jurisdiction. See University

of South Alabama, 168 F.3d at 409-10.

In the present case, the plaintiffs contend that subject matter jurisdiction exists pursuant to 28 U.S.C.

§ 1332, the diversity jurisdiction statute. Under § 1332, a district court has jurisdiction over any civil case
if (1) the parties are "citizens of different States" and (2) "the matter in controversy exceeds the sum or value

of $75,000, exclusive of interests and costs." 28 U.S.C. § 1332. It is the latter requirement—an amount in

controversy exceeding $75,000—that poses the jurisdictional hurdle in this case. This is true even though
the defendants do not dispute that this case involves the requisite amount in controversy for diversity

jurisdiction.4

Subject matter jurisdiction is conferred and defined by statute. It cannot be created by the consent

of the parties, see Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir.1985) (per curiam),

nor supplanted by considerations of convenience and efficiency, see, e.g., E.R. Squibb & Sons, Inc. v.

Accident & Cas. Ins. Co., 160 F.3d 925, 929 (2d Cir.1998) (raising sua sponte, after sixteen years of federal

court litigation, the issue of whether diversity jurisdiction existed). Thus, a federal court must inquire sua

sponte into the issue whenever it appears that jurisdiction may be lacking. See Fitzgerald, 760 F.2d at 1251

("A federal court not only has the power but also the obligation at any time to inquire into jurisdiction
whenever the possibility that jurisdiction does not exist arises."). It is not unusual, at least at the appellate

stage of a proceeding, for a federal court to reject the joint jurisdictional blandishments of the parties. See

Swint v. Chambers County Com'n, 514 U.S. 35, 44-46, 115 S.Ct. 1203, 1209, 131 L.Ed.2d 60 (1995). The

responsibility for keeping federal courts within their jurisdictional boundaries ultimately lies with those
courts.
When jurisdiction is premised on the diversity of the parties, the court is obligated to assure itself

that the case involves the requisite amount in controversy. See, e.g., Laughlin v. Kmart Corp., 50 F.3d 871,

873-74 (10th Cir.1995) (dismissing case sua sponte based on an insufficient amount in controversy); see also

Meritcare, Inc. v. St. Paul Mercury, Ins., 166 F.3d 214, 218 (3d Cir.1999) ("[I]f it develops that the requisite

amount in controversy was never present, even if that fact is not established until the case is on appeal, the

judgment of the District Court cannot stand.").

In their complaint, the plaintiffs allege simply that "[t]he matter in controversy exceeds the sum or
value of $75,000, exclusive of interests and costs." (Pls.' Second Amend. Compl. at ¶ 1). The complaint
does not request a specific amount of damages nor does it otherwise explain the basis for this jurisdictional

4
After the plaintiffs filed their first amended complaint, Hartford filed a motion to dismiss as to it,
contending that the Browns, the named plaintiffs insured by Hartford, had not alleged a sufficient amount
in controversy. However, after the plaintiffs filed their second amended complaint, it appears that neither
Hartford nor the other defendants disputed the amount in controversy allegation. Now all of the parties
seem contented to be in federal instead of state court.
allegation. Responding to our inquiry on appeal, the parties argue that diversity jurisdiction exists because:
(1) at least one of the class members has a claim for more than $75,000, which would establish diversity

jurisdiction over that claim, and then the court would have supplemental jurisdiction over the claims of the
entire class pursuant to 28 U.S.C. § 1367,5 or (2), if no individual claim is valued at more than $75,000, the
class claims should be valued in the aggregate—the total value of the class claims should be attributed to each
class member for purposes of measuring the amount in controversy.

Because the requisite amount in controversy undoubtedly is present if the class members' claims may

be viewed in the aggregate, we address this argument first.

A. AGGREGATION OF CLAIMS
Generally, if no single plaintiff's claim satisfies the requisite amount in controversy, there can be no

diversity jurisdiction. However, there are situations in which multiple plaintiffs have a unified, indivisible
interest in some common fund that is the object of litigation, permitting them to add together, or "aggregate,"
their individual stakes to reach the amount in controversy threshold. As explained by the Supreme Court in

Zahn v. International Paper Co.:

When two or more plaintiffs, having separate and distinct demands, unite for convenience and
economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional
amount; but when several plaintiffs unite to enforce a single title or right, in which they have a
common and undivided interest, it is enough if their interests collectively equal the jurisdictional
amount.

Zahn, 414 U.S. at 295, 94 S.Ct. at 508 (quoting Troy Bank of Troy, Indiana v. G.A. Whitehead & Co., 222

U.S. 39, 40-41, 32 S.Ct. 9, 56 L.Ed. 81 (1911)) (emphasis added).
Despite pervasive criticism of the "separate and distinct" versus "common and undivided" distinction

as arcane and confusing, there appears to be a common thread in the relevant case law—the presence of a
"common and undivided interest" is rather uncommon, existing only when the defendant owes an obligation

5
In Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), the Supreme
Court held that each member of a putative class must satisfy the requisite amount in controversy to avoid
being dismissed from a class action. In 1990, Congress amended 28 U.S.C. § 1367 to extend the
supplemental jurisdiction of federal courts "to include claims that involve the joinder or intervention of
additional parties." See 28 U.S.C. § 1367(a). The issue of whether the 1990 amendments extend
supplemental jurisdiction to the claims of an entire class once the claim of at least one class member
satisfies the requisite amount in controversy, thereby overruling Zahn, has resulted in an even circuit split.
Compare Stromberg Metal Works v. Press Mechanical, Inc., 77 F.3d 928, 930-33 (7th Cir.1996) (holding
§ 1367 overruled Zahn ); In re Abbott Laboratories, 51 F.3d 524, 527-29 (5th Cir.1995) (same), aff'd by
an equally divided court sub. nom Free v. Abbott Laboratories, --- U.S. ----, 120 S.Ct. 1578, 146 L.Ed.2d
306 (2000) (see infra note 19), with Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 218-22
(3d Cir.1999) (holding § 1367 did not overrule Zahn ); Leonhardt v. Western Sugar Co., 160 F.3d 631,
638-41 (10th Cir.1998) (same).
to the group of plaintiffs as a group and not to the individuals severally. See Eagle v. American Tel. and Tel.

Co., 769 F.2d 541, 546 (9th Cir.1985) ("[T]he character of the interest asserted depends on the source of

plaintiffs' claims. If the claims are derived from rights that they hold in group status, then the claims are

common and undivided. If not, the claims are separate and distinct."); National Org. for Women v. Mutual

of Omaha Ins. Co., 612 F.Supp. 100, 107 (D.D.C.1985) ("[T]he cases that allow aggregation often speak of

the presence of some fund to which a plaintiff class is seeking access [, and] ... they often involve an attempt

to enforce a right that belongs to a group.").

Our predecessor court elucidated this point further in Eagle Star Ins. Co. v. Maltes, 313 F.2d 778 (5th

Cir.1963),6 stating: "[T]he Supreme Court has evinced a desire to give a strict construction to allegations of
the jurisdictional amount in controversy, so as to allow aggregation only in those situations where there is
not only a common fund from which the plaintiffs seek relief, but where the plaintiffs also have a joint
interest in that fund, such that if plaintiffs' rights are not affected by the rights of co-plaintiffs, then there can

be no aggregation.... In other words, the obligation to the plaintiffs must be a joint one." Id. at 781; see also

Gilman v. BHC Secs., Inc., 104 F.3d 1418, 1424 (2d Cir.1997) ("Plaintiffs in paradigm 'common fund' cases

assert claims to a piece of land, a trust fund, an estate, an insurance policy, a lien, or an item of collateral,

which they claim as common owners or in which they share a common interest arising under a single title or
right.").
In addition, the unequivocal mandate from the Supreme Court is that the modern class action

procedure does not alter the well-settled limitation on aggregating the claims of multiple plaintiffs. See

Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). In Snyder v. Harris, the named

plaintiff's damages claim was less than the $10,000 then required for diversity jurisdiction, but the claims of

the entire class approached $1.2 million. See id. at 333, 89 S.Ct. at 1055. However, because the class

members' damages claims were separate and distinct, the Court held that the claims could not be aggregated

and affirmed the dismissal of the case for lack of subject matter jurisdiction. Id. at 335-39, 89 S.Ct. at 1056-

58 ("The doctrine that separate and distinct claims could not be aggregated was never, and is not now, based

upon the categories of old Rule 23 or of any rule of procedure. That doctrine is based rather upon this Court's

interpretation of the statutory phrase 'matter in controversy.' "). Consequently, the claims of putative class

6
Decisions of the Fifth Circuit issued prior to October 1, 1981 are binding precedent on this Court.
See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc).
members may only be aggregated to satisfy the amount in controversy requirement if the class members are

suing to "enforce a single title or right, in which they have a common and undivided interest." Zahn, 414 U.S.

at 295, 94 S.Ct. at 508; Snyder, 394 U.S. at 335, 89 S.Ct. at 1056.7

Against this backdrop of the law of aggregation, we now consider whether the various claims for

relief in this class action may be aggregated to satisfy the jurisdictional amount in controversy in this case.

1. Compensatory Damages

While most class members in this case appear to have relatively small compensatory damages claims,

see infra Part II.B.1, it is clear that if aggregated, those claims exceed $75,000. But it is also clear that the

damages sought in this case may not be aggregated.

As evident from the Supreme Court's decision in Snyder, class members generally may not aggregate

their individual claims for compensatory damages to establish the requisite amount of controversy. Snyder,

394 U.S. at 335, 89 S.Ct. at 1056. More specifically, when multiple plaintiffs assert rights arising from

individual insurance policies, their claims are separate and distinct, and accordingly, may not be aggregated.

See Alvarez v. Pan American Life Ins. Co., 375 F.2d 992, 993-994 (5thCir.1967); Troup v. McCart, 238 F.2d

289, 295-96 (5th Cir.1957). Because each member of the Policyholder Class, as well as each member of the
Damaged Vehicle Subclass, seeks damages resulting from the defendants' alleged breach of individual
insurance policies, the compensatory damages in this case may not be aggregated to establish diversity
jurisdiction.

The fact that the breach of contract claim asserted on behalf of the Policyholder Class is alternatively

characterized as one for unjust enrichment does not change the result of the aggregation analysis. In Count

7
Although no class has been certified yet, we treat the suit as a class action for present purposes. See
3B J. Moore, Moore's Federal Practice, ¶ 23.50 (2d ed. 1985) ("In the interim between the
commencement of the suit as a class action and the court's determination as to whether it may be so
maintained it should be treated as a class suit.")

In this case, there are essentially nine "mini-classes" within the Policyholder Class and
Damaged Vehicle Subclass, i.e., classes of insureds who own policies with one of the nine
defendant insurers with each "mini-class" being represented by one of the named plaintiffs. See
supra note 1. Claims against multiple defendants can only be aggregated when the defendants are
jointly liable to the plaintiff. See Jewell v. Grain Dealers Mut. Ins. Co., 290 F.2d 11, 13 (5th
Cir.1961). The various defendants here are not jointly liable to the class members, and therefore,
if aggregation of the class members' claims is permissible, only the claims within each
"mini-class" may be aggregated against the corresponding defendant. In other words, aggregation
of all of the class members' claims would be insufficient to establish jurisdiction in this case.
Instead, each "mini-class" must separately establish the requisite jurisdictional amount between
its members and the particular defendant.
II of their complaint, the plaintiffs seek to compel the defendants to disgorge the amount of the collected

premiums allegedly attributable to the diminished value coverage the defendants refuse to provide, thereby
creating a common fund of recovery on behalf of the class.

For amount in controversy purposes, however, it is the nature of the right asserted, not that of the

relief requested, that determines whether the claims of multiple plaintiffs may be aggregated. See Gilman,

104 F.3d at 1427 (explaining cogently the difference between a common fund permitting aggregation and the

common fund that is usually generated in any class action); Snow v. Ford Motor Co., 561 F.2d 787, 790 (9th

Cir.1977). The members of the Policyholder Class are asserting rights arising from their individual insurance

policies, and if successful, they will recover the amount of excessive premiums each paid under his own
policy. The fact that this recovery may be obtained under an equitable theory of unjust enrichment does not

convert separate and distinct claims for damages into a fund in which the class members have a common and

undivided interest. See, e.g., Alvarez, 375 F.2d at 993; Crawford v. American Bankers Ins. Co. of Florida,

987 F.Supp. 1408, 1412 (M.D.Ala.1997); Pierson v. Source Perrier, S.A., 848 F.Supp. 1186, 1188-89

(E.D.Pa.1994) (refusing to aggregate disgorgement of profits under unjust enrichment claim because "claims
cannot be aggregated simply because [plaintiffs] frame their prayer for damages as equitable, rather than
legal, relief").

2. Punitive Damages

In their complaint, the plaintiffs did not request punitive damages because, at the time the complaint
was filed, Florida Statute § 768.72 prohibited a plaintiff from pleading punitive damages without first

obtaining leave of court and proffering evidence to support that pleading. See Cohen v. Office Depot, Inc.,

184 F.3d 1292, 1294-95 (11th Cir.1999) ("Cohen I"). In Cohen I, which was decided only a few weeks

before the district court dismissed the present lawsuit, this Court held that § 768.72 was inapplicable to

federal court proceedings because it was preempted by Rule 8(a)(2) of the Federal Rules of Civil Procedure.

See Cohen I, 184 F.3d at 1295-99. In their supplemental brief, the plaintiffs contend that they will amend

their complaint, if the case is remanded, to include a prayer for punitive damages, thereby further increasing

the amount in controversy.

However, Cohen is a double-edged sword for the plaintiffs. On petition for rehearing, the Cohen

Court held that prior binding precedent prohibited the aggregation of a class claim for punitive damages. See

Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076-77 (11th Cir.2000) ("Cohen II"). Instead of being
aggregated, the Court explained, the amount of punitive damages must be divided equally among all of the

class members to determine the proper amount in controversy for each member. See id. In the present case,

the complaint alleges that the size of the Policyholder Class "exceeds one million" and maintains that the size
of the Damaged Vehicle Subclass is also "large."

As a result, even if the plaintiffs were able to amend their complaint and plead a substantial sum of

punitive damages on remand, the pro rata amount of those damages for such a large class and subclass would

have little effect on establishing the requisite amount in controversy. For example, with the Policyholder
Class exceeding one million members, a "good faith" punitive damages claim of one hundred million dollars

would amount to less than a $100 for each member of the class. Even a one billion dollar punitive damages
claim, which could hardly be asserted in good faith, would amount to less than $10,000 for each class

member.

Because neither the claims for compensatory damages or the potential claim for punitive damages
may be aggregated in this case, we now consider the possible aggregation of the class claim for attorney's

fees.

3. Attorney's Fees
On behalf of the Damaged Vehicle Subclass, the plaintiffs request, if they are successful, attorney's

fees pursuant to Florida Statute § 627.428, which provides:
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer
and in favor of any named or omnibus insured or the named beneficiary under a policy or contract
executed by the insurer, the trial court or, in the event of an appeal in which the insured or
beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of
the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's
attorney prosecuting the suit in which the recovery is had.
***

(3) When so awarded, compensation or fees of the attorney shall be included in the judgment or
decree rendered in the case.

When a statute authorizes the recovery of attorney's fees, a reasonable amount of those fees is

included in the amount in controversy. See Cohen II, 204 F.3d at 1079 (citing Missouri State Life Ins. Co.

v. Jones, 290 U.S. 199, 202, 54 S.Ct. 133, 134, 78 L.Ed. 267 (1933)). However, on the question of whether

a claim for statutory attorney's fees may be aggregated in a class action, two recent decisions by this Court

indicate the answer is "no." See id. at 1079-83; Darden v. Ford Consumer Fin. Co., 200 F.3d 753, 757-59

(11th Cir.2000); cf. Davis v. Carl Cannon Chevrolet-Olds, Inc., 182 F.3d 792, 796-97 (11th Cir.1999)
(disallowing aggregation of class claim for non-statutory attorney's fees).

In Cohen II, we read Darden—the first case in our Circuit to address the issue—to preclude

aggregation of a statutory award of attorney's fees when at least two factors were present: "(1) the class
members have a 'separate and distinct' right to recover attorney['s] fees under the relevant statute; and (2)

state law provides that the ... fees serve to compensate the class members for their injuries." Cohen II, 204

F.3d at 1081-82. Contending neither Darden factor is present with respect to § 627.428, the parties argue that

aggregation of attorney's fees is permissible in this case.

Addressing the second Darden factor, the parties stress that unlike the statutes in Cohen II and

Darden, section 627.428 does not serve to compensate the plaintiff but instead serves to punish insurers for

wrongfully denying claims. In support, they cite cases from this Court and from the Florida District Courts

of Appeal noting the punitive and deterrent purposes of the statute. See, e.g., Meeks v. State Farm Mut. Auto.

Ins. Co., 460 F.2d 776, 780 (5th Cir.1972); Government Employees Ins. Co. v. Battaglia, 503 So.2d 358, 360

(Fla.Dist.Ct.App.1987) ("The purpose of section 627.428 is to penalize a carrier for wrongfully causing its
insured to resort to litigation to resolve a conflict when it was reasonably within the carrier's power to do
so."). The plaintiffs maintain that, because the award of attorney's fees under the statute is intended to deter

the wrongful denials of policy claims and to punish insurers for such denials, the award benefits the public
and class members as a whole, and thereby grants the class members a "common and undivided" interest in

the fees. Cf. Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1358 (11th Cir.1996) (reasoning that plaintiffs

have a common and undivided interest in Alabama punitive damages because the "punitive damages are

awarded for the public benefit—the collective good"), abrogated by Cohen II, 204 F.3d at 1073-77.

But the Florida Supreme Court has noted, "Florida courts have consistently held that the purpose of
section 627.428 and its predecessor is to discourage the contesting of valid claims against insurance

companies and to reimburse successful insureds for their attorney's fees when they are compelled to defend

or sue to enforce their insurance contracts." Insurance Co. of North America v. Lexow, 602 So.2d 528, 531

(Fla.1992) (emphasis added); see Wilder v. Wright, 278 So.2d 1, 3 (Fla.1973) (noting that one of the purposes

of § 627.428 is "to reimburse successful insureds reasonably for their outlays for attorney's fees...."). Because

the Florida Supreme Court has said that, it is Florida law. See Blue Cross & Blue Shield of Alabama, Inc. v.

Nielsen, 116 F.3d 1406, 1413 (11th Cir.1997) ("The final arbiter of state law is the state supreme court, which

is another way of saying that [a state's] law is what the [state's] Supreme Court says it is."). As a result, we
must take it as given that one of the principal objectives of § 627.428 is to compensate the insured for the

expenses of litigating a dispute over the terms of an insurance policy. See Lexow, 602 So.2d at 531; Wilder,

278 So.2d at 3.
So, while the attorney's fees awarded under § 627.428 serve punitive and deterrent purposes, they

also "serve a significant compensatory purpose." Cohen II, 204 F.3d at 1082. And as explained by the

Darden Court, aggregation of such attorney's fees would be inconsistent with Snyder 's general prohibition

against the aggregation of compensatory damages. See Darden, 200 F.3d at 758.

Moreover, even if the sole purpose of § 627.428 were punitive in nature, meaning that the second

factor in Darden was not present, aggregation would not necessarily be permissible. We think it apparent

from Snyder, as well as from the Supreme Court cases applying the aggregation standard, that the first factor

in Darden—whether the plaintiffs have separate and distinct rights to recover the attorney's fees—remains

the paramount issue with respect to the aggregation of attorney's fees, as it is with respect to the aggregation
of any claim.

Applying the well-settled aggregation standard to statutory awards of attorney's fees, the Darden

Court reasoned that the rights of class members to recover attorney's fees are separate and distinct whenever

each class member is individually entitled to recover attorney's fees under the relevant statute. See Darden,

200 F.3d at 758. As is clear from the discussion in Cohen II, a necessary corollary to the reasoning in Darden

is that each class member has a separate and distinct right to statutory attorney's fees, thus precluding

aggregation, whenever each class member could recover attorney's fees if he sued individually. See Cohen

II, 204 F.3d at 1082. The fact that the class members pursue their substantive claims through the procedural

mechanism of a class action does not transform their separate and distinct rights to attorney's fees into a single

right in which each member has a common and undivided interest. See Cohen II, 204 F.3d at 1079-83;

Darden, 200 F.3d at 757-59; see also Snyder, 394 U.S. at 338, 89 S.Ct. at 1058 (explaining that the 1966

amendments to Rule 23 did not expand the ability to aggregate claims to establish diversity jurisdiction).

Under the standards set forth in Cohen II and Darden, the individual members of the Damaged

Vehicle Subclass (the only ones claiming a right to statutory attorney's fees) assert a right to recover attorney's

fees under § 627.428 that is separate and distinct, and thus, the second Darden factor precluding aggregation

is present. According to the plain language of § 627.428, whenever "any named or omnibus insured" prevails

in a policy dispute, the statute awards attorney's fees "against the insurer and in favor of the insured ...." Fla.
Stat. § 627.428(1) (emphasis added). Because any member of the Damaged Vehicle Subclass could

individually sue to enforce the terms of the policy, and if successful, would recover attorney's fees under §
627.428, the subclass members have separate and distinct statutory rights to recover attorney's fees.

Attempting to distinguish § 627.428 from the statutes involved in Cohen II and Darden, the parties

argue that the subclass members have no separate and distinct rights to the fees provided by § 627.428,

because the statute is intended to compensate the attorney instead of the prevailing party. According to the
parties, it is the attorney who is entitled to the § 627.428 fees and, because the class attorney represents the

class as a whole, they maintain that the attorney's fees should be viewed in the aggregate. This conclusion

was reached by the district court in Howard v. Globe Life Ins. Co., 973 F.Supp. 1412 (N.D.Fla.1996), a case

decided before both Cohen II and Darden. In Howard, the court allowed the aggregation of a class claim for

attorney's fees under § 627.428, reasoning that "[i]f the putative class prevails in this case, the class's attorney

will be entitled to an award of attorney's fees under this statute; it will not be paid to the plaintiffs." Id. at

1420.
Although it is true that the benefit of § 627.428 ultimately flows to the attorney who is compensated

for his services, that was also true with the statutes at issue in Cohen II and Darden. That fact does not

address the question posed by the aggregation standard as it is reflected in the second Darden

factor—whether the class members have separate and distinct rights to recover attorney's fees under the

relevant statute. See Cohen II, 204 F.3d at 1081-82 (citing Darden, 200 F.3d at 758). Contrary to the parties'

characterization of the statute, we read § 627.428 to have the same function and effect as the attorney's fees

statutes at issue in Cohen II and Darden.

First, as discussed above, one of the primary purposes of the § 627.428 is to compensate the insured

for his litigation expenses, see, e.g., Lexow, 602 So.2d at 531, something also true of the statutes at issue in

Cohen II and Darden. Second, this statute awards the attorney's fees to the insured, not his attorney. As the

statutory language unambiguously states, the fee award is adjudged "in favor of the insured," Fla. Stat. §

627.428(1), and it is made part of the judgment entered in favor of the insured. See id. § 627.428(3); see also

Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420, 421 (Fla.1994) ("Under

[Fla. Stat. § 627.428], an insured or beneficiary who prevails is entitled to attorney['s] fees."); State Farm

Fire & Cas. Co. v. Palma, 629 So.2d, 830, 832-33 (Fla.1993) (holding that § 627.428 requires the insurer to

pay for fees incurred by the insured's attorney in litigating the "insured 's entitlement to attorney's fees"
because "such services are rendered in procuring full payment of the judgment ....") (emphasis modified).8
Thus, even though the attorney for the insured benefits from an award of fees under § 627.428 in the same

way that an attorney benefits from every award of attorney's fees, section 627.428 entitles the insured and
not the attorney to the recovery of those fees.

Accordingly, as in Darden and Cohen II, the basis for the class claim for attorney's fees in this case

is the individual right of each class member to recover attorney's fees. Also as in Cohen II and Darden, each

class member in this case could recover the statutory attorney's fees if that member brought a separate lawsuit

to enforce the terms of the policy. Therefore, the rights of the class members to recover attorney's fees under

Fla. Stat. § 627.428 are separate and distinct, and the amount of attorney's fees may not be aggregated to

establish the requisite amount in controversy. See Cohen II, 204 F.3d at 1081-82; Darden, 200 F.3d at 758.

Instead, the attorney's fees must be attributed pro rata among each member of the Damaged Vehicle Subclass,

see Cohen II, 204 F.3d at 1082-82, and given the plaintiffs' allegations regarding the size of the subclass, the

portion attributed to each member would be minimal.

4. Injunctive Relief
For amount in controversy purposes, the value of injunctive or declaratory relief is the "value of the

object of the litigation" measured from the plaintiff's perspective. Ericsson GE Mobile Communications, Inc.

v. Motorola Communications & Elecs., Inc., 120 F.3d 216, 218-20 (11th Cir.1997) (citations omitted). "In

other words, the value of the requested injunctive relief is the monetary value of the benefit that would flow

to the plaintiff if the injunction were granted." Cohen II, 204 F.3d at 1077 (citing Ericsson, 120 F.3d at 218-

20).

In this case, the requested injunction essentially requires the defendants to compensate the class

members for diminished value on any future damaged vehicle claims and to inform the class members of their

entitlement to this compensation. If this injunction were issued, the benefit obtained by the members of the
Policyholder Class would be the payment of any future claims for diminished value, at least for as long as
the policies at issue remain in effect, and thus, the value of the injunction would be the present value of those

8
Moreover, in Palma, the Florida Supreme Court explained that "[§ 627.428] applies in virtually all
suits arising under insurance contracts ... [and, thus,] the terms of [the statute] are an implicit part of every
insurance policy issue in Florida." Palma, 629 So.2d at 832. Thus, the insured's right to attorney's fees
essentially is derived from his individual insurance policy, further indicating that the right is separate and
distinct from that of other policyholders. See Alvarez, 375 F.2d at 993-94 (explaining that claims against
an insurer based on the individual policies of insureds are separate and distinct).
future payments.9 But before we address whether this value may be viewed in the aggregate, we first explain
why the value of the injunctive relief with respect to an individual class member is too speculative to satisfy
the amount in controversy requirement.

Although a diversity suit should not be dismissed unless "it is apparent, to a legal certainty, that the

plaintiff cannot recover [the requisite amount in controversy]," see St. Paul Mercury Indem. Co. v. Red Cab

Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938), this liberal standard for jurisdictional

pleading is not a license for conjecture. In light of the federalism and separation of powers concerns

implicated by diversity jurisdiction, federal courts are obligated to strictly construe the statutory grant of
diversity jurisdiction, or as the Supreme Court has put it, to "scrupulously confine their own jurisdiction to

the precise limits which the statute has defined." Snyder, 394 U.S. at 340, 89 S.Ct. at 1059 (quoting Healy

v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248 (1934)). We think this obligation requires a

court to insure that the benefits resulting from an injunction are not counted where they are so uncertain that
the court cannot reasonably determine whether the amount of money placed in controversy by the present suit

exceeds $75,000. Accordingly, a plaintiff who bases diversity jurisdiction on the value of injunctive relief
must show that the benefit to be obtained from the injunction is "sufficiently measurable and certain to satisfy

the ... amount in controversy requirement...." Ericsson, 120 F.3d at 221.10

In this case, it is mere speculation as to whether any particular class member will benefit monetarily,
and if so to what extent, from an injunction requiring the defendants to pay any future claims for diminished

value. See Cohen II, 204 F.3d at 1078-79 (explaining that "the injunctive relief in this case involves too many

9
Although the requested injunction would require the defendants to notify their policyholders of the
obligation to pay for diminished value, the plaintiffs benefit from this notice only to the extent that the
defendants are required to pay for future diminished value claims. Therefore, the real value of the
injunction to the plaintiffs is the potential future payments of diminished value claims. Moreover, while
the defendants would certainly incur costs in providing this notice, the value of an injunction for amount
in controversy purposes must be measured by what the plaintiff stands to gain, and therefore, the costs
borne by the defendant in complying with the injunction are irrelevant. See Cohen II, 204 F.3d at 1079 n.
8.
10
In Ericsson, this Court held that the value of an injunction was "too speculative and immeasurable"
to establish the requisite amount in controversy. Ericsson, 120 F.3d at 221-22. The only remedy
available to Ericsson was an injunction invalidating Motorola's contract to provide a communications
system to the City of Birmingham, and thus, the benefit of this injunction to Ericsson was simply the
chance to rebid on the contract. See id. at 221. Because all the injunction could do was void Motorola's
contract, Ericsson would benefit monetarily from the injunction only if (1) the City elected to rebid the
contract, which it apparently was not required to do, and (2) after the contract was rebid, the City selected
Ericsson's communications system. See id. Based on these contingencies, the Ericsson Court concluded
that the value of the injunctive relief was not "sufficiently measurable and certain to satisfy the ... amount
in controversy requirement of the diversity statute." Id.
contingencies" to satisfy the amount in controversy requirement). One significant uncertainty in valuing the
injunctive benefit is that the requested injunction would not prevent the defendants from changing the

language of their policies to exclude explicitly any obligation to pay diminished value, thereby preventing

any future payments once the current policies were no longer in effect. See id. at 1077 (reasoning that amount

in controversy could not be founded upon a requested injunction where the defendant could comply in a

manner that resulted in no monetary benefit to the class members).11
Even if the defendants did not alter the policy language, the injunction has no reasonably certain

monetary value to any individual class member because it is simply impossible to know which class members

will be involved in automobile accidents and assert claims for diminished value. Cf. Burns v. Massachusetts

Mut. Life Ins. Co., 820 F.2d 246, 249 (8th Cir.1987) (affirming dismissal for failure to establish requisite

amount in controversy based, in part, on the fact that plaintiff's claimed future losses to be avoided by
injunctive relief, namely lesser amounts of dividends, were "highly speculative" as the defendant was not
contractually obligated to pay dividends at all). Equally uncertain is the amount of those potential diminished

value claims. An accident may be so minor as to result in virtually no diminished value or so severe that the
vehicle is totaled and the insured is paid the full pre-accident market value.12
We therefore conclude that, with respect to individual class members, the value of injunctive relief
here is "too speculative and immeasurable" to be included in determining the amount in controversy.

Ericsson, 120 F.3d at 221-22; cf. Vicksburg, S. & P. Ry. Co.v. Nattin, 58 F.2d 979, 980 (5th Cir.1932)

("Jurisdiction is based on actuality, not prophecy, the pressure of a grievance immediately felt and presently
measurable in money of the jurisdictional amount. Speculative anticipation that conditions, from which

11
At oral argument, counsel for the insurers pointed out that in order to effect that change in the
policy language the insurers would have to secure the approval of the appropriate state agency. But there
is nothing to indicate that approval would be withheld.
12
A similar rationale is found in decisions involving suits to enjoin the collection of taxes. In those
cases, courts have consistently held that the amount in controversy is measured by the amount of taxes
owed at the time of litigation, not the present value of future tax obligations. See, e.g., Healy, 292 U.S. at
270-71, 54 S.Ct at 703-04. "The reasons given for this rule of measurement are that it cannot be assumed
that the defendant will continue to enforce the tax, or that the plaintiff will continue to be subject to the
tax, or that the taxing statute will remain in effect and not be modified by legislation." 14B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 3708, at 251 (3d ed.1998) (citing Healy );
see also M & M Transp. Co. v. City of New York, 186 F.2d 157, 158 (2d Cir.1950) (Hand, J.); Vicksburg,
S. & P. Ry. Co.v. Nattin, 58 F.2d 979, 980 (5th Cir.1932) ("To assume, as appellant asks the court to do,
that there will be an assessment each year against the property sufficient to aggregate in the twenty-five
years the bonds have to run more than $3,000 is to indulge in speculation and prophecy. Many things, all
problematical, may occur to make the assessment for the next year and for future years wholly
different.").
present ills, not now sufficient in amount to give jurisdiction, flow, may in time aggregate the necessary
amount, will not support jurisdiction.").13
Although we conclude that, as to any individual class member, the value of the injunctive relief is

too speculative to satisfy the amount in controversy requirement, we agree with the parties that, if it may be
viewed in the aggregate, the value of the injunctive relief satisfies the requisite amount in controversy. The

plaintiffs have alleged the Policyholder Class consists of over one million members. What is only merely

possible with respect to one policyholder—a sum of future claims for diminished value with a present value

13
The decision in Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658 (5th Cir.1971), does not
suggest a different result. In that case the plaintiff filed a putative class seeking to enjoin the enforcement
of federal regulations that potentially limited the amount of payments the class could obtain on behalf of
Medicaid patients. See id. at 660-62. At the time, federal question cases also were subject to an amount
in controversy requirement, and because the plaintiffs admitted in their complaint that they might suffer
no pecuniary loss as a result of the enforcement of the regulation, the district court concluded that the
benefit of the injunction was too speculative to establish the requisite amount in controversy and
dismissed the case for lack of jurisdiction. See id. at 662.

On appeal, the Fifth Circuit reversed, stating:
"The speculativeness of the jurisdictional claim in this case does not warrant
dismissal, for the fact the plaintiffs admitted that they may or may not suffer
losses as a result of the enforcement of the ... regulation does not show to a legal
certainty that plaintiffs' claim is really for less than the jurisdictional amount.
While such an admission may have evidential value as tending to show an
absence of good faith on the part of the plaintiffs, it is by no means conclusive,
for the very fact that plaintiffs stated that they may suffer losses negates the
existence of any 'legal certainty.' "

Id. at 663. The Richardson Court did not suggest that speculative benefits will sustain diversity
jurisdiction but instead concluded that "the pleadings alone [were] not so conclusive that the
plaintiffs should have been denied an opportunity to present facts in support of their jurisdictional
claim." Id. at 662. In the words of the Ericsson Court, the plaintiffs in Richardson may have
been able to prove that their losses from enforcement of the injunction were "sufficiently
measurable and certain to satisfy the ... amount in controversy requirement...." Ericsson, 120
F.3d at 221. However, on the basis of the contingencies noted in the text, we conclude that the
plaintiffs in this case could not.

There is a more basic distinction between this case and the Richardson case—it involved
federal question jurisdiction. As several courts have noted, when there was still an amount in
controversy requirement for federal question cases, courts often were more indulgent of
speculative claims so that the courts could address the merits of significant federal law issues.
See, e.g., National Org. for Women v. Mutual of Omaha Ins. Co., 612 F.Supp. 100, 107
(D.D.C.1985). Clearly, such indulgence is not warranted when only state law issues are
presented. Cf. Snyder, 394 U.S. at 341, 89 S.Ct. at 1059 ("Suits involving issues of state law and
brought on the basis of diversity can often be most appropriately tried in state courts."). That is
the basis on which Richardson can be squared with Snyder 's direction that where jurisdiction is
founded upon diversity of citizenship, "[d]ue regard for the rightful independence of state
governments, which should actuate federal courts, requires that they scrupulously confine their
own jurisdiction to the precise limits which the statute has defined." Id., 394 U.S. at 340, 89 S.Ct.
at 1059 (quoting Healy, 292 U.S. at 270, 54 S.Ct. at 703).
of $75,000—becomes quite probable with respect to over a million policyholders. With that many policies

alleged to be in effect, we clearly cannot conclude to a legal certainty that the value of the injunction sought

in this case, if viewed in the aggregate, is too uncertain to satisfy the amount in controversy requirement

However, as we have explained previously, aggregation is determined by the right asserted, not the

relief requested. See Gilman, 104 F.3d at 1427. Accordingly, when an injunction protects rights that are

separate and distinct among the plaintiffs, the value of the injunction to the individual plaintiffs may not be

aggregated to sustain diversity jurisdiction. See Alfonso v. Hillsborough County Aviation Auth., 308 F.2d 724

(5th Cir.1962);14 see also Burns, 820 F.2d at 250-51; Snow v. Ford Motor Co., 561 F.2d 787, 790-91 (9th

Cir.1977); Lonnquist v. J.C. Penney Co., 421 F.2d 597, 599 (10th Cir.1970).

This rule against aggregating the value of an injunction where it protects rights that are separate and

distinct among the plaintiffs clearly applies to the claims of insureds who sue to enforce the separate and

distinct rights arising from their respective insurance policies with an insurer. See Alvarez v. Pan American

Life Ins. Co., 375 F.2d 992, 993 (5th Cir.1967); see also Burns, 820 F.2d at 250-51. And thus, for purposes

of aggregation, it is irrelevant that multiple insureds choose to remedy the alleged violation of their separate

and distinct rights through a joint request for injunctive or declaratory relief. See Alvarez, 375 F.2d at 993

("[The insured] sought an accounting, and an injunction requiring that [the insurer] re-establish his interest
and that of the class on its books, and that all claims be honored. This too was nothing more than a claim on

behalf of each contract holder in the class for whatever might be due under the respective contracts."); Burns,

820 F.2d at 250-51.
In this case, the rights asserted arise from the class members individual insurance policies with one

of the defendants, and the requested injunction seeks to protect against future violations of those individual

14
In Alfonso, a group of homeowners alleged that the expansion of an airport constituted an
unconstitutional taking of their property and sought to enjoin the airport's use of the new approach way
until condemnation proceedings could be initiated. See Alfonso, 308 F.2d at 725. The homeowners
alleged that some of the homes had been damaged by more than $4,000 each, while others alleged
unspecified amounts of damages. See id.

After noting that "[u]nless the claims of the [homeowners] can be aggregated, it is
apparent that the minimum jurisdictional requirement [$10,000 at the time] is not satisfied," id. at
726, and also that separate distinct claims may not be aggregated, the Court affirmed the district
court's dismissal for lack of subject matter jurisdiction. See id. at 726-28. Even though the
homeowners sought only declaratory and injunctive relief, see id. at 725, the Alfonso Court
applied the well-settled standard for aggregation to their claims. See 14B Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 3704, at 134 & n. 11 (3d ed.1998) (citing
Alfonso as a "[r]epresentative case ... illustrating the separate-and-distinct claim rule....").
rights. Thus, the claims for injunctive relief are separate and distinct, and they may not be aggregated to
establish the requisite amount in controversy. Concluding that none of the claims in this class action may be

viewed in the aggregate, we now consider whether any individual class member has asserted a claim

satisfying the requisite amount in controversy.
B. SUFFICIENCY OF AMOUNT IN CONTROVERSY FOR INDIVIDUAL CLASS MEMBER'S
CLAIMS

If there is an individual class member whose claim for compensatory damages, combined with a pro

rata share of attorney's fees and the potential claim for punitive damages, exceeds $75,000, then diversity

jurisdiction exists over that individual's claim against his respective insurer.15 If there are such class members,

we must then decide whether 28 U.S.C. § 1367 statutorily overruled the Supreme Court's decision in Zahn

to extend a federal court's supplemental jurisdiction over the claims of the entire class when at least one class

member has a claim which satisfied the jurisdictional amount in controversy requirement. See supra note 5.

1. Compensatory Damages

On behalf of the Damaged Vehicle Subclass, the plaintiffs seek compensation for the diminished
value of their damaged vehicles. While the named plaintiffs do not allege the specific amounts of
uncompensated diminished value, the sparse record evidence concerning those amounts indicates that they

do not approach the $75,000 threshold for diversity jurisdiction.
From our review of the record, there is information concerning the pre-accident value and costs of
repairs for only two of the named plaintiffs, the Motens and the Highleys. In their response to Atlanta

Casualty's Motion for Summary Judgment, the Motens indicated that the pre-accident market value of their
vehicle was $6,450. Obviously, if the pre-accident value was $6,450, the amount of diminished value after

Atlanta Casualty paid for repairs falls far short of $75,000. The amount of the diminished value claim of the
Highleys similarly appears to be well below $75,000. In its Motion to Dismiss, Nationwide indicated that
the cost of repair to the Highleys' vehicle was $2,105.92. Under the definition of the Damaged Vehicle

Subclass, see supra note 3, the Highleys would be members only if the repair costs of their vehicle were at

least 20% of the pre-accident value of their car. It follows that the pre-accident value of their car could not

have been more than $10,500, and as a result, it is evident the Highleys' damages claim for diminished value

15
Because there are nine "mini-classes" in this case, see supra note 7, there must be at least one
individual within each "mini-class" that has a claim sufficient to satisfy the requisite amount in
controversy.
would also be far below the $75,000 threshold.16
Although we recognize that a court owes some deference to a diversity plaintiff's amount in

controversy allegations, and should dismiss the suit for lack of jurisdiction only when "it is apparent, to a

legal certainty, that the plaintiff cannot recover [the requisite amount in controversy]," see St. Paul Mercury

Indem., 303 U.S. at 289, 58 S.Ct. at 590, that deference does not eviscerate the court's obligation to

scrupulously enforce its jurisdictional limitations. "While a federal court must of course give due credit to
the good faith claims of the plaintiff, a court would be remiss in its obligations if it accepted every claim of

damages at face value, no matter how trivial the underlying injury." Diefenthal v. Civil Aeronautics Bd., 681

F.2d 1039, 1052 (5th Cir.1982); see also Opelika Nursing Home, 448 F.2d at 664-65.17 Moreover, legal

certainty is "a very strict objective standard," Jones v. Landry, 387 F.2d 102, 104 (5th Cir.1967), and "once

it is clear that as a matter of law the claim is for less than [$75,000], the [court] is required to dismiss." Burns

v. Anderson, 502 F.2d 970, 972 (5th Cir.1974). On the record before us, we conclude to a legal certainty that

the named plaintiffs' individual claims for compensatory damages claims could not satisfy the $75,000
amount in controversy requirement.

Notably, in their supplemental briefs addressing the jurisdictional issue, none of the parties suggest

that any of the named plaintiffs' claims for compensatory damages would even approach the $75,000
threshold. Instead, in addition to relying on the claims for attorney's fees and injunctive relief, the plaintiffs

look to the claims of other, unidentified class members. They assert that: "Within the class are members who

have either (1) a very expensive luxury vehicle (Rolls Royce, etc.), which by the nature of the car has suffered
significant diminished value or (2) had multiple cars that have suffered diminished value during the class
period. Therefore, there are class members that have suffered significant compensatory damage nearing, if

16
A survey of reported cases with claims for the diminished value of vehicles reveals that the typical
claim involves only a few thousand dollars. See, e.g., Boyd Motors, Inc. v. Employers Ins. Co. of Wausau
(D.Kan.1990) (diminished value claim for fourteen cars totaling $40, 609.48 for an average of about
$2,900 per car); Johnson v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 1, 754 P.2d 330, 331
(Ariz.Ct.App.1988) (diminished value claim of $3,000); Hartford Fire Ins. Co. v. Rowland, 181 Ga.App.
213, 351 S.E.2d 650, 652 (Ga.Ct.App.1986) (diminished value claim of $2,500); Delledonne v. State
Farm Mut. Auto. Ins. Co., 621 A.2d 350, 351 (Del.Super.Ct.1992) (diminished value claim of $8,000).
17
Not only is a conclusory allegation that the amount in controversy requirement is satisfied
insufficient to sustain jurisdiction once that allegation is challenged, see St. Paul Reinsurance Co., Ltd. v.
Greenberg, 134 F.3d 1250, 1254 (5th Cir.1998), we think that, if anything, such an allegation is entitled
to even less consideration in the context of a class action. This is so because the named plaintiff's
unstated basis for his jurisdictional allegation might be the erroneous position that the claims of the class
members may be aggregated.
not exceeding the $75,000 jurisdictional amount." (Pls.' Supp. Br. at 10).

However, if there are such class members, their existence must be demonstrated not supposed.

Jurisdiction cannot be established by a hypothetical. See Diefenthal, 681 F.2d at 1052 ("Jurisdiction is not

conferred by the stroke of a lawyer's pen. When challenged, it must be adequately founded in fact."); see

also Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942) (noting that when the

plaintiff's jurisdictional allegations are challenged, he "bears the burden of supporting the allegations by
competent proof"). "It is the plaintiff's burden both to allege with sufficient particularity the facts creating

jurisdiction, in view of the nature of the right asserted, and, if appropriately challenged, or if inquiry be made

by the court of its own motion, to support the allegation." St. Paul Mercury Indem., 303 U.S. at 287 n. 10,

58 S.Ct. at 590 n. 10 (citations omitted); see also McNutt v. General Motors Acceptance Corp. of Indiana,

298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936) (explaining that a court may require "that the
jurisdictional facts be established ... and for that purpose [it] may demand that the party alleging jurisdiction
justify his allegations by a preponderance of evidence").

However, "a plaintiff must have ample opportunity to present evidence bearing on the existence of

jurisdiction." Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir.1991); see also Majd-Pour

v. Georgiana Community Hosp., Inc., 724 F.2d 901, 903 (11th Cir.1984) ("Although the plaintiff bears the

burden of proving the court's jurisdiction, the plaintiff should be given the opportunity to discover facts that

would support his allegations of jurisdiction."). In this case, the issue of a sufficient amount in controversy
was not raised until appeal, which limited the plaintiffs' opportunity to show whether there are other class
members who may make a "good faith" allegation that they have incurred close to $75,000 in damages.

Consequently, the plaintiffs are entitled to an opportunity to make that showing on remand .18 If they

make that showing on remand, then the issue of whether 28 U.S.C. § 1367 overruled the Zahn decision, see

supra note 5, will be presented for decision. However, because remand might be rendered unnecessary if,

18
Also, the compensatory damages claim for the Policyholder Class may not fare any better for
jurisdictional purposes. The plaintiffs contend that the defendants have damaged the class members,
including depriving them of the "actuarial value"of the diminished value coverage. Again, the theory
appears to be that the policyholders paid premiums which had been calculated on the assumption that the
defendants would compensate for diminished value and, because the defendants intend not to provide
such compensation, the policyholders have overpaid for their policies and seek compensation for that
overpayment. Assuming that these "overpayments" are recoverable, it seems highly unlikely that the
amount of an individual class member's overpayments would approach $75,000. Nevertheless, the
plaintiffs will have an opportunity to prove on remand that, in addition to the purported members of the
Damaged Vehicle Subclass, there are members of the Policyholder Class who are entitled to recover such
a substantial amount of compensatory damages.
as the parties contend, the potential attorney's fees award under Florida Statute § 627.428 may be attributed

solely to the named plaintiffs, which would itself present the Zahn and § 1367 issue, we briefly address that

contention.

2. Attorney's Fees

The parties argue that if the potential award of attorney's fees under Florida Statute § 627.428 may

not be viewed in the aggregate, see supra Part II.A.3, then the statutory language suggests that the fees should

be attributed only to the named plaintiffs. In support of this argument, the parties point to In re Abbott Labs.,

51 F.3d 524 (5th Cir.1995), aff'd by equally divided court sub nom., Free v. Abbott Laboratories, Inc., --- U.S.

----, 120 S.Ct. 1578, 146 L.Ed.2d 306 (2000),19 in which the Fifth Circuit addressed a Louisiana statute
authorizing an award of attorney's fees for "the representative parties ... when as a result of the class action

a fund is made available, or recovery or compromise is had which is beneficial, to the class." Id. at 526

(quoting La.Code Civ. Proc. art. 595).

Concluding that the statutory language indicated that the attorney's fees should be attributed only to

the named plaintiffs, and not to every class member, the court in Abbott held that the named plaintiffs had

established the requisite amount in controversy to support diversity jurisdiction over their claims. See id. at

526-27. The court then went on to hold that supplemental jurisdiction existed over the rest of the class

members, pursuant to 28 U.S.C. § 1367. See id. at 527-29.

In this case, the parties liken § 627.428 to the Louisiana statute involved in Abbott. Because §

627.428 awards attorney's fees to "any named or omnibus insured," the parties contend that in a class action

the attorney's fees should be attributed to the named plaintiffs. See Howard, 973 F.Supp. at 1421.

Consequently, the parties conclude, attributing the attorney's fees in this case to the nine named plaintiffs
would establish the requisite amount in controversy as to those plaintiffs and—assuming that § 1367 did

overrule the Zahn decision—supplemental jurisdiction would extend to the claims of the entire class.

We need not reach the supplemental jurisdiction question, however, because we see no basis for

attributing the attorney's fees solely to the named plaintiffs. The Louisiana statute in Abbott is readily

distinguishable from § 627.428. The Louisiana statute explicitly addressed class actions and provided for the

award of attorney's fees to "the representative parties." Abbott, 51 F.3d at 526 (quoting La.Code Civ. Proc.

19
An affirmance by an equally divided Supreme Court has no precedential value. See Rutledge v.
United States, 517 U.S. 292, 304, 116 S.Ct. 1241, 1249, 134 L.Ed.2d 419 (1996).
art. 595). In contrast, section 627.428 does not specifically address class actions, and it does not refer

explicitly to class representatives.

Nor does § 647.428's language awarding attorney's fees to "any named or omnibus insured" implicitly
refer to class representatives. The term "named insured" clearly refers to the "person designated in an

insurance policy as the one covered by the policy," Black's Law Dictionary 811 (7th ed.1999) (defining

"named insured"), not the person who is named as a class action plaintiff. Thus, since every member of the

Policyholder Class is a "named insured" under § 627.428, there is no basis for attributing the attorney's fees

only to the named plaintiffs. For amount in controversy purposes, the amount of fees must be attributed pro

rata among all of the class members, resulting in a relatively small sum for each member.

C. REMAND
On the record before us, the claims in this putative class action do not satisfy the requisite amount

in controversy requirement for diversity jurisdiction. Neither the compensatory damages, potential punitive

damages, attorney's fees, or the injunctive relief may be aggregated. In addition, it seems evident that none
of the named plaintiffs possesses an individual claim that approaches the $75,000 required for diversity

jurisdiction.

However, the plaintiffs maintain that there are some class members who have suffered substantial
damages from uncompensated diminished value. Because the amount in controversy issue was not raised
until appeal, the plaintiffs were not afforded the opportunity to determine whether such class members exist,

and if so, to present evidence of that fact to the district court. Thus, we remand the case to grant the plaintiffs
an opportunity to prove there are class members who can make a "good faith" allegation that their claims for
compensatory damages approach or exceed $75,000.20

If the plaintiffs carry their burden of proof with respect to this jurisdictional issue, see McNutt, 298

U.S. at 189, 56 S.Ct. at 785 (stating that jurisdictional facts must be established by a preponderance of

evidence), then the district court will have diversity jurisdiction over the claims of those class members. It

should then address the plaintiffs' argument that 28 U.S.C. § 1367 has overruled Zahn to authorize

20
While the district court may consider the class members' pro rata share of attorney's fees and, if
appropriate, punitive damages, we note again that these sums will be small and the existence of a
sufficient amount in controversy will substantially depend on the claim for compensatory damages.

Also, because there is no joint liability between the defendants, the plaintiffs must
identify as to each defendant a class member who has a sufficient compensatory damages claim.
supplemental jurisdiction over the class members whose claims do not satisfy the requisite amount in

controversy. If the court decides that Zahn is still the law, only individuals with claims sufficient to satisfy

the amount in controversy requirement may proceed as plaintiffs.21 If the plaintiffs do not prove that there
are class members whose individual claims satisfy the amount in controversy requirement, the district court
must dismiss the case for lack of jurisdiction.

One final note is in order. Because jurisdiction cannot be conferred by consent, the district court

should be leery of any stipulations the parties offer concerning the facts related to jurisdiction. Given that

the parties share the goal of having this case decided in federal court, the district court should be especially
mindful of its independent obligation to ensure that jurisdiction exists before federal judicial power is

exercised over the merits of the case.22
III. CONCLUSION

The case is remanded to the district court for proceedings not inconsistent with this opinion.
REMANDED.

21
The district court has not yet reached any class certification issues. If the district court decides that
Zahn is still the law, the number of individuals, if any, with jurisdictionally sufficient claims against a
particular insurer may be so small that joinder of their claims under Rule 20 of the Federal Rules of Civil
Procedure is practicable, thereby precluding certification of a class action. See Fed.R.Civ.P. 23(a)(1)
(permitting class action procedure when "the class is so numerous that joinder of all members is
impracticable"). We leave that issue, if it arises, to the district court to decide in the first instance.
22
The plaintiffs suggest that we certify the question of whether Florida law requires compensation for
diminished value to the Florida Supreme Court while remanding to the district court to develop a factual
record on the issue of jurisdiction. However, doubts regarding subject matter jurisdiction must be
resolved before taking any steps to address the merits of a case. See Packard v.Provident Nat'l Bank, 994
F.2d 1039, 1049 (3d Cir.1993) ("It is axiomatic that federal courts are courts of limited jurisdiction, and
as such are under a continuing duty to satisfy themselves of their jurisdiction before proceeding to the
merits of any case."). If jurisdiction does not exist in this case, we have no power to certify the state law
question. "Simply put, once a federal court determines that it is without subject matter jurisdiction, the
court is powerless to continue." University of South Alabama, 168 F.3d at 410.