KELLY v. ACE AMERICAN INSURANCE CO Et Al Notice of Removal

Case 5:11-cv-00838-EEF-MLH Document 1 Filed 06/07/11 Page 1 of 8 PageID #: 1
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
NICOLE KELLY * CIVIL ACTION NO.

*
*
VERSUS * JUDGE:
*
ACE AMERICAN INSURANCE * MAG.:
COMPANY, WERNER ENTERPRISES,
INC. OF NEBRASKA, CRAWFORD
GREEN, PROGRESSIVE COUNTY
MUTUAL INSURANCE COMPANY,
AND MELISSA PETERSON *
* * * * * * * * * * * *
NOTICE OF REMOVAL
NOW INTO COURT, through undersigned counsel, come Defendants, Werner
Enterprises, Inc., ACE American Insurance Company and Crawford Green, who respectfully
aver as follows:
I.
On or about May 5, 2010, Plaintiff, Nicole Kelly, filed a personal injury lawsuit against
Werner Enterprises, Inc., ACE American Insurance Company, Crawford Green, Progressive
County Mutual Insurance Company and Melissa Peterson in the 1st Judicial District Court for the
Parish of Caddo, State of Louisiana, Docket Number 550,359-B entitled “Nicole Kelly v. ACE
American Insurance Company, et al.” A copy of the Petition for Damages is attached hereto as
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Exhibit 1. The lawsuit arises from an automobile accident which occurred on May 29, 2010 , in
the Parish of Caddo.
II.
Based upon information and belief, Defendant, Werner Enterprises, Inc. was served
through its Louisiana-designated Agent for Service of Process on May 17, 2011; defendant, ACE
American Insurance Company was served through the Louisiana Secretary of State on May 18,
2011; and defendant, Crawford Green was served via the La. Long Arm Statute on May 18, 201.
III.
Defendants Progressive County Mutual Insurance Company and Melissa Peterson have
not yet been served with process so as to subject themselves to the jurisdiction of the 1st Judicial
District Court for the Parish of Caddo, State of Louisiana, within the meaning and requirements
of La. R.S. 13:3474 and 13:3475.
IV.
This Notice of Removal was properly filed within thirty (30) days of receipt of service of
papers by defendants Werner Enterprises, Inc., ACE American Insurance Company and
Crawford Green, from which it may be ascertained that the case is removable.
V.
Plaintiff, Nicole Kelly, alleges in Paragraph 14 of her Petition for Damages as follows:
“Petitioner, NICOLE KELLY, was injured in the aforesaid crash as follows:
a) Head injury;
b) Concussion;
c) Brain injury;
d) Post-Traumatic Stress Disorder
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e) Right shoulder strain;
f) Right hand contusion;
g) Left ankle sprain;
h) Bilateral knee sprain;
i) Headaches;
j) Forgetfulness;
k) Short-term memory loss;
l) Lumbar sprain/strain;
m) Central disc bulges at L3-4, L4-5, and L5-S1
VI.
In pertinent part, in Paragraph 9 of her Petition for Damages, plaintiff, Nicole Kelly,
alleged as follows:
“At the time and place of aforesaid:
* * * * * * *
e) The defendant, CRAWFORD GREEN, crossed into MELISSA PETERSON’s
lane of travel, striking her on the passenger side;
f) MELISSA PETERSON lost control of her Jeep Grand Cherokee and the trailer
and was subsequently struck again by the semi;
g) The force of the collision propelled the Jeep and trailer into the median of 3132
where it finally came to rest; and
h) As a result of the collision, Petitioner, NICOLE KELLY, was seriously and
permanently injured.
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VII.
In the second paragraph numbered as Paragraph 14 of the Petition for Damages, Plaintiff,
Nicole Kelley, alleged:
“As a result thereof, Petitioner has suffered pain, discomfort, inconvenience and
disability; has been under the care of doctors and therapists; has been forced to endure x-rays and
other diagnostic tests and to take prescription medication; and continues to endure pain, soreness,
memory loss and disability and may require surgery for the lumbar disc bulge.”
VIII.
In the paragraph numbered as Paragraph 15 of the Petition for Damages, Plaintiff, Nicole
Kelley, alleged that she “.…is entitled to recover damages as are reasonable in the premise, for
the following:
a) Past pain and suffering;
b) Future pain and suffering
c) Disability;
d) Past mental anguish;
e) Future mental anguish;
f) Past medical expenses;
g) Future medical expenses;
h) Inconvenience; and
i) Loss of enjoyment of life.
IX.
Based upon the facts of the accident and the allegations made by plaintiff in her Petition
for Damages, defendants have been provided with notice, and it reasonably appears, that, the
4
damages claimed by Nicole Kelly may exceed the sum of $75,000.00, exclusive of interest and
costs. Louisiana courts have held that in cases with similar type injuries, the damages can be
worth $75,000 and even more. See Campbell v. Webster Parish Police Jury, 36,391 (La.App. 2
Cir. 9/18/02), 828 So.2d 170 (Plaintiff with lumbar and cervical soft-tissue and disc injuries that
were treated conservatively was awarded $75,000 in general damages, exclusive of medical
expenses.); Pannell v. Encompass Ins Co., 2006-1601 (La.App. 3 Cir. 5/2/07); 956 So.2d 152
(Plaintiff was awarded $90,000 in general damages, exclusive of medical expenses, for soft
tissue injuries to her back, neck, and shoulder with aggravation of lumbar herniated disc and a
degenerative back condition.); Collier v. Benedetto, 04-1025, 04-1026 (La.App. 5 Cir. 2/15/05),
897 So.2d 775 (Plaintiff was awarded $75,000 in general damages, exclusive of medical
expenses or lost wages, for cervical disc injuries that were treated conservatively.); See Nunez v.
Commercial Union Ins. Co, 00-106 (La. App. 3 Cir. 8/23/00); 774 So.2d 208, where plaintiff hit
her head in an automobile accident and suffered a concussion and traumatic brain injury which
caused headaches. She was awarded $325,000 which was affirmed on appeal. Id. at 224. See
Seals v. Shelter Ins. Companies, 39,252 (La. App. 2 Cir. 3/2/05); 894 So.2d 1259 (post-
concussive syndrome and post-traumatic stress disorder, headaches, neck pain all supported an
award of $125,000); Jolly v. Sewerage and Water Bd., 00-1878 (La. App. 4 Cir. 11/21/01), 802
So.2d 987 ($75,000 award for a plaintiff with concussion syndrome and post-traumatic
headaches,); Weaver v. Siegling, 569 So.2d 97 (La. App. 4th Cir. 1990) ($100,000 awarded to
plaintiff with concussion and post-traumatic stress disorder); Russell v. Noullet, 97-0085, 97-
0086 (La. App. 4 Cir. 1/14/98); 706 So.2d 540 (rev’d on liability grounds at 98-0916 (La.
12/1/98); 721 So.2d 868) ($100,000 award for post-traumatic concussion syndrome and
headaches. See Miller v. Bailey, 621 So.2d 1174 (La. App. 3rd Cir. 1993) ($212,000 awarded to
5
plaintiff diagnosed with head injury, memory lapses and headaches); Locke v. Young, 42,703
(La. App. 2 Cir. 12/12/07); 973 So.2d 831 ($125,000 award for concussion, short-term recording
memory difficulty); Brandao v. Wal-Mart Stores, Inc., 35,368 (La. App. 2 Cir. 12/19/01), 803
So.2d 1039 (headaches, loss of memory, impaired concentration and brain dysfunction supported
an award of $226,000).
X.
Werner Enterprises, Inc. is a corporation with both its place of incorporation and its
principal place of business is in the State of Nebraska.
XI.
ACE American Insurance Company has both its place of incorporation and its principal
place of business in the State of Pennsylvania.
XII.
Defendant, Crawford Green, is domiciled in and a citizen of the State of New Mexico.
XIII.
Based on the information in Petition for Damages, Plaintiff, Nicole Kelly resides in
Holiday, Florida and is a citizen of the State of Florida.
XIV.
Based on the information in the Petition for Damages, Defendant, Melissa Peterson, is a
resident of Seminole, Florida and is a citizen of the State of Florida; based upon information and
belief and the information in the Petition for Damages, Defendant, Progressive County Mutual
Insurance Company is an insurance company incorporated in the State of Texas and with its
principal place of business in Austin, Texas.
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XV.
There is complete diversity between the plaintiff and all defendants. As of the date of
filing of this Notice of Removal, plaintiffs have not named any other parties as defendants.
XVI.
In accordance with the foregoing, this is a civil action over which this Court has original
jurisdiction pursuant to 28 U.S.C. §1332 (a), and is one which may be removed to this Court by
defendants pursuant to 28 U.S.C. §1441, in that it is a civil action wherein the matter in
controversy exceeds the sum of $75,000.00, exclusive of interest and costs, and is between
citizens of different states.
XVII.
In accordance with 28 U.S.C. §1446(d), defendants will provide appropriate Notice of
this Removal to the plaintiffs and to the Clerk of Court for the 1st Judicial District Court for the
Parish of Caddo, State of Louisiana.
JURY DEMAND
XVIII.
Defendants are entitled to and request a trial by jury on all issues herein.
WHEREFORE, defendants, Werner Enterprises, Inc., ACE American Insurance
Company and Crawford Green, together pray that the action entitled “Nicole Kelly v. ACE
American Insurance Company, et a.” bearing Docket Number 550,359-B and pending in the 1st
Judicial District Court for the Parish of Caddo, State of Louisiana, be removed from the state
court docket to the United States District Court for the Western District of Louisiana, Shreveport
Division.
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Respectfully submitted,
s / C. Michael Parks
__________________________________
GUY D. PERRIER, T.A. #20323
C. MICHAEL PARKS, #19727
ERIC W. SELLA, #33474
365 Canal Street, Suite 2550
New Orleans, LA 70130
Telephone: (504) 212-8820
Facsimile: (504) 212-8825
E-mail: gperrier@perrierlacoste.com
mparks@perrierlacoste.com
esella@perrierlacoste.com
ATTORNEYS FOR DEFENDANTS, WERNER

ENTERPRISES, INC., ACE AMERICAN
INSURANCE COMPANY AND CRAWFORD
GREEN
CERTIFICATE OF SERVICE
I hereby certify that the foregoing pleading has been delivered to all counsel of record,
either through the CM/ECF system, depositing a copy of same in the United States mail, first
class postage prepaid, by hand delivery or by facsimile transmission, this 7th day of June, 2011 at
their last known address of record.
s/ C. Michael Parks
__________________________________
C. MICHAEL PARKS
F:\Client Files\Active Files P&L\50730- GDP\PLEADINGS\Notice of Removal.doc
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Case 5:11-cv-00838-EEF-MLH Document 1-1 Filed 06/07/11 Page 1 of 7 PageID #: 9
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
NICOLE KELLY * CIVIL ACTION NO.

*
*
VERSUS * JUDGE:
*
ACE AMERICAN INSURANCE * MAG.:
INC. OF NEBRASKA, CRAWFORD
GREEN, PROGRESSIVE COUNTY
MUTUAL INSURANCE COMPANY,
AND MELISSA PETERSON *
* * * * * * * * * * * *
LIST OF PARTIES
NOW COME defendants, ACE American Insurance Company, Werner
Enterprises, Inc. and Crawford Green, who represent that the following is a list of
attorneys involved in this case and the parties they represent:
1. Nicole Kelly - Plaintiff

represented by:
J. Patrick Hennessy, Esq. (La. Bar # 6791)
Law Offices of J. Patrick Hennessy
401 Edwards Street, Suite 1310
P.O. Box 91
Shreveport, LA 71161-0091
Tel: 318-221-8000
Fax: 318-221-4300
1
2. Werner Enterprises, Inc.

ACE American Insurance Company and
Crawford Green- Defendants
represented by:
Perrier & Lacoste, LLC.,
Guy D. Perrier, C. Michael Parks, and
Eric W. Sella
One Canal Place
New Orleans, Louisiana 70130
Ph: (504) 212-8820
Facsimile: (504) 212-8825
3. Defendants, Progressive County Mutual Insurance Company and Melissa

Peterson—Defendants
Represented by:
Unknown—Not yet served
Respectfully submitted,
S/ C. Michael Parks
__________________________________
GUY D. PERRIER, T.A. #20323
C. MICHAEL PARKS, #19727
ERIC W. SELLA, #33474
New Orleans, LA 70130
Telephone: (504) 212-8820
Facsimile: (504) 212-8825
E-mail: gperrier@perrierlacoste.com
mparks@perrierlacoste.com
esella@perrierlacoste.com
ATTORNEYS FOR DEFENDANTS,

ACE AMERICAN INSURANCE
INC. AND CRAWFORD GREEN
2
CERTIFICATE OF SERVICE
I hereby certify that the foregoing pleading has been delivered to all counsel of
record, either through the CM/ECF system, depositing a copy of same in the United
States mail, first class postage prepaid, by hand delivery or by facsimile transmission, this
7th day of June, 2011, at their last known address of record.
S/ C. Michael Parks
__________________________________
C. MICHAEL PARKS
F:\Client Files\Active Files P&L\50730- GDP\PLEADINGS\Corporate Disclosure.doc

KELLY v. ACE AMERICAN INSURANCE CO Et Al Notice of Removal

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Case 5:11-cv-00838-EEF-MLH Document 1 Filed 06/07/11 Page 1 of 8 PageID #: 1

UNITED STATES DISTRICT COURT

NICOLE KELLY * CIVIL ACTION NO.

NOW INTO COURT, through undersigned counsel, come Defendants, Werner

the Parish of Caddo.

of La. R.S. 13:3474 and 13:3475.

“Petitioner, NICOLE KELLY, was injured in the aforesaid crash as follows:

d) Post-Traumatic Stress Disorder

e) Right shoulder strain;

f) Right hand contusion;

g) Left ankle sprain;

h) Bilateral knee sprain;

k) Short-term memory loss;

m) Central disc bulges at L3-4, L4-5, and L5-S1

“At the time and place of aforesaid:

e) The defendant, CRAWFORD GREEN, crossed into MELISSA PETERSON’s

lane of travel, striking her on the passenger side;

and was subsequently struck again by the semi;

where it finally came to rest; and

h) As a result of the collision, Petitioner, NICOLE KELLY, was seriously and

Nicole Kelley, alleged:

a) Past pain and suffering;

b) Future pain and suffering

d) Past mental anguish;

e) Future mental anguish;

f) Past medical expenses;

g) Future medical expenses;

i) Loss of enjoyment of life.

principal place of business is in the State of Nebraska.

place of business in the State of Pennsylvania.

Holiday, Florida and is a citizen of the State of Florida.

principal place of business in Austin, Texas.

citizens of different states.

In accordance with 28 U.S.C. §1446(d), defendants will provide appropriate Notice of

Parish of Caddo, State of Louisiana.

WHEREFORE, defendants, Werner Enterprises, Inc., ACE American Insurance

ATTORNEYS FOR DEFENDANTS, WERNER

F:\Client Files\Active Files P&L\50730- GDP\PLEADINGS\Notice of Removal.doc

UNITED STATES DISTRICT COURT

NICOLE KELLY * CIVIL ACTION NO.

NOW COME defendants, ACE American Insurance Company, Werner

attorneys involved in this case and the parties they represent:

1. Nicole Kelly - Plaintiff

2. Werner Enterprises, Inc.

3. Defendants, Progressive County Mutual Insurance Company and Melissa

ATTORNEYS FOR DEFENDANTS,

F:\Client Files\Active Files P&L\50730- GDP\PLEADINGS\Corporate Disclosure.doc

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