UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 97-30113 Summary Calendar _______________________

BARBARA LACHNEY,

Plaintiff-Appellant,

versus

LUMBERMENS MUTUAL CASUALTY COMPANY,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana Alexandria Division (96-CV-901) _________________________________________________________________ October 13, 1997

Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:1

Barbara Lachney appeals the district court’s denial of

her motion to remand as well as the district court’s grant of

summary judgment in favor of Lumbermens Mutual Insurance Company

(“Lumbermens”). Finding no error in either ruling, we affirm.

Lachney was injured in an automobile accident in April

1995. Lachney worked for Johnson & Johnson and, at the time of

1 Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. the accident, she was driving a car furnished to her by Johnson &

Johnson. Lorraine Giddings was the other driver involved in the

accident. Giddings was a permissive user of a vehicle owned by

Donald Smith, the named insured in a $10,000 liability policy

issued by Financial Indemnity Company (“Financial”).

Lachney sued Lumbermens in Louisiana state court,

alleging that she should receive payment under the uninsured or

underinsured motorist (“UM”) coverage provided by Lumbermens to

Johnson & Johnson on company-owned and leased vehicles.

Lachney’s damages claim exceeds the limits of the Financial

policy covering Donald Smith.

Lumbermens removed the case to federal court based on

diversity. After removal, Lachney moved for leave to file an

amended complaint against Giddings and Financial. The district

court granted leave to amend. Since both Lachney and Giddings

were Louisiana citizens, Lachney moved to remand.

Lumbermens responded by filing a motion to recall the

order permitting the amended complaint against Giddings and

Financial on the grounds that the joinder was merely to defeat

diversity. The district court granted this motion and denied the

motion to remand. The court found the first factor outlined in

Hensgsens v. Deere & Co.,

, 1182 (5th Cir. 1987),

the purpose of the post-removal amendment, to be dispositive:

2 Plaintiff has been aware of Giddings’ identity and role in the underlying tort from day one. At the time plaintiff filed suit in state court against Lumbermens on her UM coverage claim, she could have easily named Giddings and Financial as defendants on the related underlying tort claim. The possibility of reaching a settlement with these defendants did not excuse plaintiff from failing to name them as party defendants to this action at the outset. In short, we find that the principal purpose of defendant’s post-removal addition of Giddings and Financial is to defeat this court’s subject matter jurisdiction.

The district court also reasoned that Lachney would not be

prejudiced by the denial of joinder because it could still pursue

Giddings and Financial in state court, Financial had the

resources to cover any liability on the part of Giddings, and

Financial had made a settlement offer indicating that a state

trial might not even be necessary.

On appeal, Lachney argues that the district court’s

decision is not justified on the basis of a fraudulent joinder

rationale because she can obviously state a cause of action

against Giddings and Financial. Lachney also complains that she

does not have a settlement with Financial and has been put

through the burden of pursuing this case in two forums.

We can not say that the district court abused its

discretion in denying Lachney’s attempts to join Giddings and

Financial post-removal. Under

(e), the district

court has discretion to deny post-removal attempts to join non-

3 diverse defendants, and the Hensgsens factors are still

appropriately employed by the court in exercising that

discretion. See Tillman v. CSX Transportation, Inc.,

(5th Cir.), cert. denied,

(1991). The

authorities cited by Lachney deal with the broad ability of the

plaintiff to add parties pre-removal, rather than any limits on

the district court’s discretion in allowing the addition of non-

diverse parties post-removal.

After the denial of remand, Lumbermens filed a motion for

summary judgment on the grounds that Johnson & Johnson had

executed a valid waiver of UM coverage in its policy. Louisiana

law dictates that UM coverage is automatically provided in a

liability policy, and requires that any rejection of such

coverage be unambiguous to be effective. See Tugwell v. State

Farm Ins. Co.,

(La. 1992). See also La.R.S.

22:1406. An insured has three options: 1) UM coverage equal to

the bodily injury limits on the liability policy, 2) UM coverage

lower than the bodily injury limits on the liability policy, but

not less than $20,000, or 3) no UM coverage.

.

The district court found that Johnson & Johnson, through

its manager of risk management, effectively rejected UM coverage

in the Lumbermens policy by signing a rejection form that had an

“x” placed in boxes next to the statements “I reject Uninsured

Motorists Coverage Bodily Injury for owned automobiles” and “I

4 reject Uninsured Motorists Coverage Bodily Injury for hired and

non-owned automobiles ... .” The district court found that the

rejection form properly informed the insured of the three options

available under Louisiana law. The district court also noted the

affidavit of Wayne Klokis stating that he was adequately informed

of his three options and affirmatively chose to reject UM

coverage.

On appeal, Lachney contends that the district court

overlooked ambiguities in the rejection form and improperly

relied on the Klokis affidavit as evidence of the insured’s

intent. Specifically, Lachney notes that the rejection form does

not include $20,000, the statutory minimum, in the list of

“available limits” under the policy. Similarly, Lachney faults

the form for not listing $5,000,000, or the limit on the

liability policy, as one of the “available limits.”

However, the policy does state that “[a]s required by

Louisiana law your policy has been issued with Uninsured

Motorists Coverage at limits equal to your bodily injury

liability limits. You may choose to select lower or higher

limits, but not less than the Financial Responsibility Limit of

$20,000.00 per ‘accident.’” This is a correct statement of

Louisiana law, and the rejection form included a blank for the

insured to write in the amount of UM coverage desired. Thus, we

agree with the district court that the form “permitted the

5 insured to make a meaningful selection from among the insurance

options required by Louisiana law, even if the ‘available limits’

listed did not include every dollar amount between $20,000 and

$5,000,000.” We also agree that the form “presented a clear,

unambiguous, and unmistakable rejection of UM coverage under

Louisiana law.” The district court’s interpretation finds ample

support in the recent decision in Daigle v. Authement,

(La. 1997).2

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

AFFIRMED.

2 In addition, although it is unclear to what extent the district court relied on the Klokis affidavit, Louisiana courts are not as hostile to the use of such documents to show intent as Lachney claims. See Moyles v. Cruz,

(La. Ct. App. 1996).

6