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June 8, 2004.

STEPHEN HOOK, an individual, on behalf of himself and all others similarly situated, Plaintiff,

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

Before the Court is plaintiff Stephen Hook's motion to remand the above-titled action to state court. Defendants Conseco Life Insurance Company and Bankers Life and Casualty Insurance Company have filed opposition, to which plaintiff has replied. Having considered the papers filed in support of and in opposition to the motion, the Court deems the motion appropriate for decision without a hearing, VACATES the hearing scheduled for June 11, 2004, and rules as follows.


  In his complaint, plaintiff alleges that in April 1995 he purchased from defendants a "flexible premium adjustable life insurance" policy, (see Compl. ¶ 6), under which policy "the premiums paid for the policy are invested into an interest-bearing accumulation fund, and charges for expenses and for the cost of insurance are deducted from the fund on a monthly basis," (see Compl. ¶ 7). The policy, which has a "$400,000 face amount," will "mature" on March 5, 2025, when the insured, Emily Hook, reaches age 100. (See Turner Decl. ¶ 3.) Under the policy, plaintiff can "determine how much he want[s] to contribute to the policy and on what schedule," (see id.), and "[t]hose determinations affect the value of the policy on any given date, and the amounts payable in the future," (see Turner Supp. Decl. ¶ 4). "[O]ver the past several years," plaintiff has paid a "$0 annual premium." (See Turner Decl. ¶ 5).

  Plaintiff, on behalf of himself and a class of similarly situated persons, alleges defendants have breached an "implied" term of the policy by changing the "method of calculating the cost of insurance." (See Compl. ¶¶ 18-19.) "For example, in the case of plaintiff's policy, the Monthly Cost of Insurance increased from approximately $253 to $769 per month. . . ." (See Compl. ¶ 12.) As relief, plaintiff seeks damages in an amount "under $75,000," (see Compl. ¶ 21, prayer ¶ 1), "injunctive relief," (see Compl., prayer ¶ 2), and a declaration that "the policy contract requires [defendants] to continue calculating monthly Cost of Insurance Charges using the same formula as it used from the outset of the policy," (see Compl., prayer ¶ 3).


  Defendants assert that the district court has diversity jurisdiction over plaintiff's claims, each of which arises under state law. See 28 U.S.C. § 1332(a) (providing district court has jurisdiction over claims between citizens of different states where amount in controversy exceeds $75,000, exclusive of interest and costs). Plaintiff seeks remand on the ground defendants cannot meet their burden to establish that the amount in controversy exceeds $75,000.*fn1

  "To support removal based on diversity jurisdiction, [the defendant] has the burden of proving, by a preponderance of the evidence, that the amount in controversy exceeds $75,000." Cohn v. Petsmart, Inc., 281 F.3d 837, 839 (9th Cir. 2002). In support of their assertion that the amount in controversy exceeds $75,000, defendants rely on plaintiff's claims for prospective relief.*fn2

  Plaintiff, in his moving papers, argues that the Court, in determining the amount in controversy, should consider only the losses he has incurred as of the date he filed his complaint.*fn3 In support thereof, plaintiff relies on cases in which the plaintiff argued that he was entitled to an award of past-due benefits, typically under a disability insurance policy. As explained by one district court in such a case, "[the] plaintiff's right to future payments is entirely uncertain; whether it exists has not yet been established." See Lenox v. S.A. Healy Co., 463 F. Supp. 51, 53 (D. Md. 1978) (holding, where plaintiff alleged entitlement to disability benefits under contract of insurance, amount in controversy measured by amount of benefits plaintiff claimed were due at time he filed his complaint). Here, however, plaintiff seeks a determination as to the meaning of the policy. Should the policy be interpreted in the manner proffered by plaintiff, defendants would be prohibited, in the future, from calculating the "monthly Cost of Insurance Charges" under a formula differing from that used at the time plaintiff initially purchased the policy. (See Compl. ¶ 29.) Under such circumstances, the Court considers the value of the future benefit to plaintiff. See, e.g., Brotherhood of Locomotive Firemen & Enginemen v. Pinkston, 293 U.S. 96, 99-100 (1934) (holding district court must consider value of "future participation in fund" where plaintiff alleged claim seeking "to preserve and protect" continuing rights under pension fund); Landmark Corp. v. Apogee Coal Co., 945 F. Supp. 932, 937 (S.D.W. Va. 1996) ("Plaintiff has not demanded a judgment for prospective relief flowing infinitely into the future or a declaration concerning the meaning of the contract; if it had so demanded, the amount in controversy would be met."); see also 14B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3710 (3d ed. 1998) (distinguishing between "instances in which the judgment only can be for installments due at the time of suit" from "situations in which the judgment will clearly and finally create an obligation . . . even though future events may alter or cut off the obligation").

  The parties agree that one measure for determining the value of plaintiff's claims for prospective relief is the total of the additional premiums plaintiff would be required to pay to keep the policy "in effect." (See Pl.'s Not. Of Mot., Mem. of P. & A., at 9:10-13; Defs.' Mem. of P. & A. at 4:3-5.)*fn4 For purposes of calculating such sum, the relevant period of time is the life expectancy of the insured. See Brotherhood of Locomotive Firemen & Enginemen, 293 U.S. at 100 ("The life expectancy of [the insured], as shown by the mortality tables, is enough to bring the value of the future pension installments, as of the date of the suit, to a sum much in excess of [the jurisdictional amount]"). The parties agree that the insured's life expectancy under the mortality tables is 7.25 years, i.e., age 87. (See Pl.'s Reply at 2:16-18; Defs.' Mem. of P. & A. at 5:4-7.) The parties disagree, however, as to whether the value of the requested prospective relief exceeds $75,000.

  Defendants, on the one hand, assert that plaintiff, with the change, must pay an annual premium of $12,659 in order to keep the policy in effect. In arriving at that figure, however, defendants employ an incorrect period of time, specifically, up to the date the insured will turn 100. (See Turner Decl. ¶ 5, Ex. 3.) To the extent defendants, in the alternative, employ the date the insured will turn 87, i.e., the insured's life expectancy, defendants have not provided a proper comparison. (Compare Turner Decl. Ex. 1 with Turner Decl. Ex. 3.)*fn5 Nor can the Court, using defendants' exhibits, calculate the additional premiums plaintiff, under the change, would be required to pay in order to receive the same level of benefits calculated by defendants without the change. Consequently, defendants have failed to meet their burden of demonstrating the amount in controversy exceeds $75,000.

  In any event, as plaintiff notes, it is speculative to assume that plaintiff, to keep the policy in effect, would necessarily choose to retain the exact same level of benefits over the ensuing years; plaintiff does not allege that he seeks to do so, and there is no showing he is contractually required to pay whatever premiums may be necessary to obtain such a level. Under such circumstances, plaintiff argues, it is more appropriate to look to the known loss to plaintiff occurring as a result of the challenged change, specifically, the additional monthly charge of $516. (See Pl.'s Reply at 2:16-22.) Indeed, plaintiff's challenge to such additional monthly charge is the focus of plaintiff's complaint and prayer for relief. (See Compl. ¶ 12 (calculating "increase" in monthly "cost of insurance" as difference between $253 and $769, i.e., $516); id. ¶ 29 (seeking declaration as to calculation of cost of insurance charges).) The additional charge, as noted, will be taken, each month, out of plaintiff's accumulation account, i.e., the fund in which any premiums plaintiff has paid are maintained, and, the Court agrees, such charge represents the calculable future loss to plaintiff. Moreover, as plaintiff points out, if that monthly charge is multiplied by the insured's life expectancy, the resultant loss of value to plaintiff's accumulation fund is significantly less than $75,000. (See id.)*fn6 Consequently, as defendants have failed to meet their burden and plaintiff, although not required to do so, has demonstrated an amount in controversy less than $75,000, plaintiff is entitled to remand

  Finally, plaintiff requests an award of costs and attorney's fees. Pursuant to 28 U.S.C. § 1447(c), "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." See 28 U.S.C. § 1447(c). A district court has "wide discretion" in deciding whether to award costs and fees under § 1447(c). See Moore v. Permanente Medical Group, 981 F.2d 443, 447 (9th Cir. 1992). Here, although defendants have not established the Court's jurisdiction over plaintiff's complaint, the Court is not persuaded that an award of costs and fees is appropriate. Accordingly, the request for an award of costs and fees is hereby DENIED.


  For the reasons stated above, the Court lacks jurisdiction over plaintiff's complaint. Accordingly, plaintiff's motion to remand is hereby GRANTED, and the above-titled action is hereby REMANDED to the Superior ...

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