I have a bad faith action in state court and just received notice of removal (there is diversity jurisdiction). The Defendant never answered nor filed a responsive pleading in state court. Can I file a dismissal w/o prejudice pursuant to Rule 41 and get the benefit of savings statute? Client suing insurance company for "walking" liability policy with agent accepting partial payment allowing client to pay out the balance. This arrangement was apparently accepted by company until she had a wreck. She was sued and got a judgment against her which carrier will not pay.
Answer: You can dismiss without prejudice without leave of court only before defendant files and answer or other responsive pleading, either in state or federal court. However, I don’t see how it benefits you to dismiss and refile. Your case will still be removable.
Be aware you may have a problem making this bad faith case. The rule is that the bad faith case must arise from the handling of the claim and not from the issuance of the policy. See: Peters v. American Income Life Ins. Co., 2003 OK CIV APP 62, 77 P.3d 1090.
Posted on Sun, September 5, 2010
by Sharon Coleman filed under