United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY, UNITED STATES DISTRICT JUDGE.
Candelario's car allegedly rear-ended another car and
caused a chain reaction that pinned Mirian Dominguez between
a churro cart and the Latin American Supermarket. In state
court, Dominguez sued Candelario, the supermarket, and Luis
and Loyda Sanchez (the owners of the shopping plaza). Atain
denied Loyda Sanchez's claim for coverage under her
commercial general liability insurance policy. Atain sues
(Doc. 1) for a declaration that the policy creates no duty to
defend or indemnify Loyda Sanchez in the state-court action.
The defendants, except for Candelario, move (Docs. 22 and 27)
to dismiss the complaint or to stay the action until the
resolution of the state-court action.
duty to defend is broad and determined solely by comparing
the insurance policy to the complaint against the insured.
EmbroidMe.com, Inc. v. Travelers Cas. Co. of Am.,
845 F.3d 1099, 1107 (11th Cir. 2017). The duty to indemnify
is determined “by the underlying facts adduced at trial
or developed through discovery during litigation.”
Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318,
1325 (11th Cir. 2014) (internal quotations omitted). Arguing
that the claim is not ripe for adjudication, the defendants
move for dismissal or a stay of Atain's request for a
declaration on the duty to indemnify. (Docs. 22 at 5 and 27
Declaratory judgment on indemnification is premature.
jurisdictional and prudential components of the ripeness
doctrine protect “federal courts from engaging in
speculation or wasting their resources through the review of
potential or abstract disputes.” Dig. Props., Inc.
v. City of Plantation, 121 F.3d 586, 589 (11th Cir.
1997). Article III jurisdiction requires a definite and
concrete case or controversy that permits a definite and
concrete resolution and not “‘an opinion advising
what the law would be upon a hypothetical state of
facts.'” Provident Life & Accident Ins. Co.
v. Transamerica-Occidental Life Ins. Co., 850 F.2d 1489,
1491 (11th Cir. 1988) (quoting Aetna v. Haworth, 300
U.S. 227, 240-41 (1937)).
aspires to define the duty to indemnify before the imposition
of liability on the insured. “But it is not the
function of a United States District Court to sit in judgment
on these nice and intriguing questions which today may
readily be imagined, but may never in fact come to
pass.” Am. Fid. & Cas. Co. v. Pa. Threshermen
& Farmers' Mut. Cas. Ins. Co., 280 F.2d 453, 461
(5th Cir. 1960). In effect, Atain requests an advisory
opinion - forbidden by Article III - of the parties'
respective rights and liabilities if the insured incurs
liability. See Watermark Constr, L.P. v. Southern-Owners
Ins. Co., 2018 WL 1305913, at *6 (M.D. Fla. Mar. 13,
2018) (Byron, J.) (finding that a request for a declaration
before a finding of liability is “nothing more than a
request for an impermissible advisory opinion”);
see also Jacksonville Prop. Rights Ass'n v. City of
Jacksonville, 635 F.3d 1266, 1276 (11th Cir. 2011)
(rejecting issuance of a declaration “on an issue that
might never impact [the plaintiffs'] substantive
rights”). But if the insured incurs no liability, the
question of the duty to indemnify for that unincurred
liability remains forever hypothetical and, for that reason,
remains a question unavailable for resolution under Article
III. See J.B.D. Const., Inc. v. Mid-Continent Cas.
Co., 571 Fed. App'x 918, 927 (11th Cir. 2014)
(“The duty to indemnify is dependent upon the entry of
a final judgment, settlement, or a final resolution of the
underlying claims.”) (citing Northland Cas. Co. v.
HBE Corp., 160 F.Supp.2d 1348, 1360 (M.D. Fla. 2001)
(Presnell, J.)); see also Mid-Continent Cas. Co. v. G.R.
Constr. Mgmt., Inc., 278 F.Supp.3d 1302, 1306 (M.D. Fla.
2017) (Chappell, J.) (finding that a request for declaration
on the duty to indemnify before the conclusion of the
underlying state-court action presents no “actual
controversy”). But see Emp'rs Mut. Cas. Co. v.
All Seasons Window & Door Mfg., Inc., 387 F.Supp.2d
1205, 1210 (S.D. Ala. 2005) (Steele, J.) (finding a
justiciable controversy “despite the absence of a
verdict or settlement” in the underlying action but
dismissing on precedential grounds).
neither Article III nor the federal Declaratory Judgment
requires adjudication of Atain's duty to indemnify.
Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995)
(explaining that a district court has “unique and
substantial discretion in deciding whether to declare the
rights of litigants”). And prudence strongly disfavors
resolving the unripe question of Atain's duty to
indemnify. “[A]n insurer's duty to indemnify is not
ripe for adjudication unless and until the insured or
putative insured has been held liable in the underlying
action.” Pa. Nat'l Mut. Cas. Ins. Co. v.
King, 2012 WL 280656, at *5 (S.D. Ala. Jan. 30, 2012)
(Steele, J.); Interstate Fire & Cas. Co. v. McMurry
Constr. Co., 2017 WL 821746, at *3 (M.D. Fla. Mar. 2,
2017) (Mendoza, J.); see also Northland, 160
F.Supp.2d at 1360 (“Because an insurer's duty to
indemnify is dependent on the outcome of a case, any
declaration as to the duty to indemnify is premature unless
there has been a resolution of the underlying claim.”).
argues that Higgins v. State Farm Fire and Cas. Co.,
894 So.2d 5 (2004), changes the law. (Docs. 28 at 8 and 32 at
6) Claiming a need to expeditiously resolve a coverage
dispute, Higgins permits a Florida trial court to
determine indemnity before the resolution of the underlying
tort action. 894 So.2d at 16-18. But federal procedural law
governs this federal action under the federal Declaratory
Judgment Act. Burlington Ins. Co. v. Wiliford Roofing
Co., 2015 WL 12546284, at *2 (M.D. Fla. Mar. 11, 2015)
(Davis, J.) (limiting Higgins to the Florida
Declaratory Judgment Act); Mid-Continent Cas. Co. v.
Nassau Builders, Inc., 2017 WL 1191383, at *7 (M.D. Fla.
Mar. 31, 2017) (Howard, J.) (finding that Higgins is
irrelevant to an action under the federal Declaratory
Ameritas Variable Life Insurance Company v. Roach,
411 F.3d 1328, 1331 (11th Cir. 2005), requires consideration
of “federalism, efficiency, and comity, ” which
are not considered by Higgins. Ameritas, 411 F.3d at
1331 (11th Cir. 2005) (internal quotations
omitted); see also First Mercury Ins. Co. v.
Excellent Computing Distribs., Inc., 648 Fed. App'x
861, 866 (11th Cir. 2016) (noting that the Eleventh Circuit
has “never held that the Ameritas factors
apply only when reviewing parallel actions”). With
deference to federalism, efficiency, and comity, the
Ameritas factors, applied to this case favor
dismissal of Atain's unripe request. Although the duty to
defend depends on the underlying complaint only, an informed
resolution of Atain's duty to indemnify depends on facts
that the state-court litigation likely will resolve.
unresolved but determinative facts include whether the injury
arises “out of or in connection with any
‘auto'” or from “[p]arking an
‘auto' on, or on the ways next to” the
premises. (Doc. 1 at 7-8) The underlying action alleges that
Candelario was negligent in her driving and that the property
owners were negligent in their maintenance of the parking
lot. (Doc. 1-1 at 3-6) Whether Dominguez's injuries are
attributable to driving or parking directly informs the
underlying suit and touches on both the legal causation of
the injury and the apportionment of fault. The state court
has a strong interest in resolving these factual issues under
state law without encroachment from a federal court.
clarification of the indemnity question might expedite a
settlement, that uncertain prospect must yield to the
benefits of dismissal. See Nassau Builders, 2017 WL
1191383, at *7 (finding that the possibility of facilitating
settlement was outweighed by considerations of federalism,
efficiency, and comity); Am. Cas. Co. of Reading v.
Allen, 2014 WL 10450887, at *5 (N.D. Ala. Dec. 29, 2014)
(Putnam, J.) (finding that the possibility of facilitating
settlement “alone is not a sufficient justification for
addressing premature, unripe issues”); Employers
Mut., 387 F.Supp.2d at 1212 (noting that the possibility
of facilitating settlement was a concern in nearly all cases
declining jurisdiction prior to a determination of
unripe requests for a declaratory judgment are dismissed
without prejudice. This action will proceed only as to
Atain's duty to ...