United States District Court, D. Nevada
For Nevada Capital Insurance Company, Plaintiff: Joshua Alan Sliker, William H. Pruitt, LEAD ATTORNEYS, Barron & Pruitt LLP, North Las Vegas, NV.
For Farmers Insurance Exchange, Defendant: David P Pritchett, Thomas E. Winner, LEAD ATTORNEYS, Phil Wen-Sheng Su, Atkin Winner & Sherrod, Las Vegas, NV; William H. Pruitt, LEAD ATTORNEY, Barron & Pruitt LLP, North Las Vegas, NV.
ORDER (Dkt. #46, #47)
ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.
Plaintiff Nevada Capital Insurance Company brought suit in this Court on the basis of diversity jurisdiction, alleging that it was a Nevada corporation and Defendant Farmers Insurance Exchange was a California corporation. In its Answer, Farmers admitted it was a California corporation, and the parties proceeded through discovery. In preparation for filing its summary judgment motion, Farmers discovered it had incorrectly identified itself as a California corporation but it is actually an unincorporated reciprocal insurance exchange. " A reciprocal insurance exchange is essentially an insurance company cooperatively owned by those it insures." True v. Robles, 571 F.3d 412, 414 (5th Cir. 2009). The insureds " undertake to indemnify each other against certain kinds of losses by means of a mutual exchange of insurance contracts, usually through the medium of a common attorney-in-fact appointed for that purpose by each of the underwriters . . . ." Id. (quoting 43 Am. Jur. 2d Insurance § 81 (2008)).
Farmers moves for leave to amend its Answer to correct its erroneous admission. Farmers indicates that amendment may destroy this Court's jurisdiction because, according to Farmers, a reciprocal insurance exchange is a citizen of every state in which it has insureds, including Nevada. Nevada Capital responds that even if Farmers is granted leave to amend, I will still have jurisdiction because an insurance exchange is not a citizen of every state in which it has insureds. Nevada Capital argues that, for purposes of diversity, the insureds are the exchange's customers, not its members.
In response to this development, I stayed summary judgment briefing and the parties submitted briefs regarding the Court's jurisdiction if Fanners is permitted to amend. At the hearing on this matter, Nevada Capital conceded amendment was necessary. But both parties urged me to adopt the minority view that, when determining citizenship for diversity jurisdiction, a reciprocal insurance exchange's insureds are its customers, not its members.
A. Motion for Leave to Amend
I will grant Farmers' motion for leave to amend. Regardless of Farmers' diligence, Farmers' amendment may impact diversity jurisdiction, and subject matter jurisdiction cannot be consented to, forfeited, or waived. Mashiri v. Dep 't of Educ., 724 F.3d 1028, 1031 (9th Cir. 2013); Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 757 (9th Cir. 1999). Although the parties have expressed their preference to remain in this Court, I have an independent obligation to examine my own jurisdiction. Mashiri, 724 F.3d at 1031.
B. Subject Matter Jurisdiction
Having granted Farmers leave to amend, the question remains whether this Court has jurisdiction over this action. Federal district courts have diversity jurisdiction over " all civil actions where the matter in controversy exceeds . . . $75, 000 . . . and is between . . . citizens of different States." 28 U.S.C. § 1332(a)(1). Where a party to the litigation is an entity, determining the entity's citizenship for diversity jurisdiction depends on the entity's form. Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). Reciprocal insurance exchanges are unincorporated associations. See True, 571 F.3d at 422 n.2; Baer v. United Servs. Auto. Ass'n, 503 F.2d 393, 394 (2d Cir. 1974); Arbuthnot v. State Auto. Ins. Ass'n, 264 F.2d 260, 262 (10th Cir. 1959); Cal. Ins. Code § § 1300-1307 (describing a reciprocal insurance exchange as persons, called subscribers, exchanging reciprocal insurance contracts with each other and operating through an attorney-in-fact or other duly authorized representative); Nev. Rev. Stat. § 680A.040 (defining reciprocal insurer as " an unincorporated aggregation of subscribers operating individually and collectively through an attorney-in-fact common to all such persons to provide reciprocal insurance among themselves"). An unincorporated association " has the citizenships of all of its members." Johnson, 437 F.3d at 899 (citing Carden v. Arkoma Assocs., 494 U.S. 185, 195-96, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990)).
There is a split of authority as to whether subscribers to a reciprocal insurance exchange are the exchange's members--whose citizenship would affect diversity jurisdiction--or customers--whose citizenship would not affect diversity jurisdiction. Compare Baer, 503 F.2d at 396; Arbuthnot, 264 F.2d at 262; James G. Davis Constr. Corp. v. Erie Ins. Exch., 953 F.Supp.2d 607, 610-11 (D. Md. 2013), with Erie Ins. Exch. v. Davenport Insulation. Inc., 616 F.Supp.2d 578, 580 (D. Md. 2009); Garcia v. Farmers Ins. Exch., 121 F.Supp.2d 667, 669 (N.D.Ill. 2000). I conclude that under California and Nevada law, a reciprocal insurance exchange's subscribers are its members, not its customers, and an exchange therefore has the citizenships of all of its subscribers.
Both California and Nevada law define subscribers as the members of the exchange. See Cal. Ins. Code § § 1300-1305; Nev. Rev. Stat. § § 680A.040, 694B.010, 694B.050(3). Unlike customers, subscribers may be severally and proportionately liable for judgments against the exchange, within certain limits. See Cal. Ins. Code § 1391-1395, 1398, 1402, 1450-1451; Nev. Rev. Stat. § § 694B.080(2)(e), § 694B.130(2), 694B.180, 694B.190, 694B.260. Additionally, subscribers in a reciprocal insurance exchange exercise control over the exchange's conduct that goes beyond a customer relationship. See Cal. Ins. Code § § 1307-1310; Nev. Rev. Stat. § § 694B.080, 694B.170. Finally, subscribers are entitled to distributions of excess funds from the exchange under certain circumstances, rights that would not normally inure to customers. See Cal. Ins. Code § 1420; Nev. Rev. Stat. § 694B.240. Consequently, a reciprocal insurance exchange's subscribers are its members under California and Nevada law.
It does not matter that California and Nevada permit reciprocal insurance exchanges to sue and be sued in their own names. See Cal. Ins. Code § 1450; Nev. Rev. Stat. § 694B.040(2). " The citizenship of each member of an unincorporated association must be alleged, even though the entity might be recognized at state law as having the ability to sue and the liability to be sued." Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1190 (9th Cir. 1970).
The rule that an unincorporated association has the citizenships of all of its members has been subject to criticism, but any alteration to the rule must come from Congress. See Carden, 494 U.S. at 196; James G. Davis Constr. Corp., 953 F.Supp.2d at 612. Congress abrogated the rule for certain class actions under the Class Action Fairness Act of 2005. See 28 U.S.C. § 1332(d)(10) (stating that " [f]or purposes of this subsection and section 1453, '"  the citizenship of an unincorporated association is determined by its principal place of business and the law of the state under ...