                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              Oct. 20, 2009
                               No. 09-13027                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                   D. C. Docket Nos. 09-00548-CV-WSD-1
                            09-00230 CV-WSD

MELISSA AVERY DUMAS,
CAMILLE J.(DUMAS) WATSON,


                                                           Plaintiffs-Appellants,

                                    versus

ACCC INSURANCE COMPANY,
f.k.a. American Century Casualty Company,
MARK MCMASTERS,


                                                          Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                              (October 20, 2009)

Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:

         Melissa Dumas and Camille Dumas Watson appeal the judgment in favor of

American Century Casualty Company and against the Dumases’ complaint of bad

faith. The Dumases challenge the decisions of the district court to deny their

motion to remand and to dismiss Mark McMasters as a party fraudulently joined to

defeat diversity jurisdiction. We affirm.

                                 I. BACKGROUND

         Tammy Carter drove her car off a road in Decatur, Georgia, and struck and

killed John Dumas. Carter later pleaded guilty to driving under the influence of

alcohol and homicide by vehicle. At the time of the accident, Carter was insured

by American Century through an automobile policy that provided coverage for

bodily injuries of $25,000 per person and $50,000 per accident. Dumas’s

surviving spouse, Melissa, and daughter, Camille, sought to recover from Carter,

and American Century assigned McMasters, an insurance adjuster, to resolve their

claim.

         The Dumases mailed to McMasters a settlement demand for Carter’s policy

limit of $25,000. The Dumases agreed to accept the policy limit and to release

American Century, but the Dumases refused to release Carter from personal

liability for John Dumas’s death. McMasters “agree[d] to the terms of [the]



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demand” and tendered to the Dumases a $25,000 check, accompanied by a release

of both American Century and Carter. American Century later asserted that

McMasters had agreed to the demand by mistake, and the Dumases sued American

Century to enforce the terms of the settlement agreement. American Century

agreed to pay the Dumases $25,000, and the Dumases dismissed their lawsuit.

      The Dumases filed a complaint in a Georgia court alleging that Carter

caused the wrongful death of John Dumas. American Century retained counsel to

represent Carter and defended her in the lawsuit for over a year. The Dumases

reached an agreement with Carter in which Carter consented to a judgment for four

million dollars and assigned to the Dumases her potential claims against American

Century and the Dumases relinquished their right to collect from Carter. Carter did

not receive permission from American Century to settle the action.

      American Century filed a complaint in federal court seeking a declaration

that it was not liable to the Dumases as assignees of Carter. American Century

alleged that Carter had breached her contractual duty as an insured to cooperate to

resolve a claim. American Century also alleged that Carter had colluded with the

Dumases to manufacture a claim against American Century.

      The Dumases filed a complaint in a Georgia court that alleged American

Century and McMasters acted with negligence and in bad faith by accepting the



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demand of the Dumases without requiring them to relinquish all claims against

Carter. The Dumases sought as damages the difference between the consent

judgment and Carter’s policy limit.

      American Century and McMasters removed the action filed by the Dumases

to a federal court based on diversity of citizenship. 28 U.S.C. § 1332. American

Century and McMasters moved to dismiss McMasters and alleged that the

Dumases fraudulently joined McMasters to defeat diversity jurisdiction. The

Dumases moved to remand the case to state court.

      The district court denied the Dumases’ motion to remand. The district court

ruled that McMasters could not be held liable for negligence and dismissed him

from the action as fraudulently joined. The court concluded that McMasters, as an

adjuster, did not have a contractual relationship with Carter and did not owe her an

implied duty to act in good faith.

      The district court consolidated the actions by American Century and the

Dumases, and the parties agreed to submit a stipulation of facts to resolve the

corresponding duties of American Century and Carter. The district court entered a

judgment in favor of American Century. The district court concluded that

American Century was not guilty of bad faith by failing to obtain a release for

Carter because the Dumases had stated they would not settle with Carter for the



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limits of her policy.

                           II. STANDARD OF REVIEW

      We review de novo the denial of a motion to remand. Florence v. Crescent

Res., L.L.C., 484 F.3d 1293, 1297 (11th Cir. 2007).

                                  III. DISCUSSION

      The Dumases challenge the denial of their motion to remand their action

against McMasters and American Century to a Georgia court. The Dumases argue

that McMasters was an agent of American Century and liable for his negligence to

Carter. This argument fails.

      When a defendant removes an action to federal court based on diversity of

citizenship and the plaintiff and any defendant are citizens of the state in which the

action has been filed, a district court is required to remand the action unless a party

has been fraudulently joined. Florence, 484 F.3d at 1297. To dismiss a party as

fraudulently joined, a defendant must prove that “there is no possibility the

plaintiff can establish a cause of action against the resident defendant.” Id. If the

defendant satisfies this “heavy” burden, Crowe v. Coleman, 113 F.3d 1536, 1538

(11th Cir. 1997), then the district court must dismiss the non-diverse defendant and

deny the motion to remand. Florence, 484 F.3d at 1297.

      Under Georgia law, an insurance company has a duty “‘to use ordinary care



                                           5
and good faith in the handling of a claim against its insured.’” Metro. Prop. & Cas.

Ins. Co. v. Crump, 237 Ga. App. 96, 97, 513 S.E.2d 33, 34 (1999) (quoting Francis

v. Newton, 75 Ga. App. 341, 344, 43 S.E.2d 282, 284 (1947)). The obligation to

act in good faith “arises out of the relationship between the insurer and the insured

created by the contract or policy of insurance.” Id. That relationship also “creates

an independent duty, implied from the terms of the contract, between insurer and

insured” that the insurer not injure the insured through negligence or acts of bad

faith. Delancy v. St. Paul Fire & Marine Ins. Co., 947 F.2d 1536, 1545–46 (11th

Cir. 1991). Cf. J. Smith Lanier & Co. v. Se. Forge Inc., 280 Ga. 508, 510, 630

S.E.2d 404, 406–07 (2006) (ruling that insurance brokers are not held “to the same

standard of liability as that of [an] insurer” and are liable to the extent they

“breach . . . a contract to obtain insurance coverage” for an insured).

      The Georgia courts have held that insurance adjusters do not share the same

relationship with an insured. Georgia courts have held that “there is no

confidential relationship between an insured and the insurer’s adjuster.” Irons v.

CSX Transp., Inc., 481 S.E.2d 575, 576 (Ga. Ct. App. 1997); Moss v. Cincinnati

Ins. Co., 154 Ga. App. 165, 166, 268 S.E.2d 676 (1980); see, e.g., Henry v.

Allstate Ins. Co., 129 Ga. App. 223, 227, 199 S.E.2d 338, 342 (1973), overruled on

other grounds by Tucker v. Chung Studio of Karate, Inc., 142 Ga. App. 818, 237



                                            6
S.E.2d 223 (1977). In the absence of privity of contract, an insurance adjuster is

not liable to an insured for a failure to settle a claim against an insured.

      The Dumases, as assignees of Carter, cannot establish a cause of action

against McMasters for negligence. Carter and American Century had a contractual

relationship that required American Century to handle the claim against Carter in

good faith, but McMasters did not owe Carter an independent duty to act in good

faith. In the absence of a cause of action against McMasters, the district court

correctly dismissed him from the action and denied the Dumases’ motion to

remand the action to state court.

                                 IV. CONCLUSION

      We AFFIRM the dismissal of the Dumases’ complaint against McMasters.




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