United States District Court, S.D. Florida
ORDER GRANTING THIRD-PARTY DEFENDANT'S MOTION TO
L. ROSENBERG, UNITED STATES DISTRICT JUDGE
matter is before the Court on Third-Party Defendant Brasfield
& Gorrie's (“B&G”) Motion to Dismiss
or, in the Alternative, Motion to Stay [DE 53]. The Motion
has been fully briefed. For the reasons set forth below, the
Motion is granted.
case stems from a construction project in Alabama. DE 1 at 2.
B&G was responsible for much of that construction
project. See Id. B&G entered into a subcontract
agreement, however, with Plaintiff Ron Kendall Masonry
(“Kendall Masonry”) to cast stone and masonry for
the project. Id. In August of 2015, B&G was sued
in Alabama state court in connection with its allegedly
faulty construction work. Id. Soon thereafter,
B&G filed a third party complaint against its
subcontractor, Kendall Masonry. Id. Kendall Masonry
had two insurance policies-one with Defendant Gemini
Insurance and one with Defendant New Hampshire Insurance.
Id. at 3-5.
Masonry initiated the present suit by seeking a declaratory
judgment that both Gemini Insurance and New Hampshire
Insurance were required to indemnify Kendall Masonry in
connection with the lawsuit brought against Kendall Masonry.
Id. In response, Gemini Insurance and New Hampshire
Insurance counterclaimed, seeking their own declaratory
judgment that they were not required to indemnify Kendall
Masonry. E.g., DE 31. The Defendants also filed a
third-party complaint against B&G. After B&G appeared
in this case, B&G filed the motion to stay presently
before the Court. B&G argues that this case must be
stayed pending a resolution in the underlying Alabama state
court case. B&G's argument is persuasive for the
Federal Declaratory Judgment Act, 28 U.S.C. § 2201,
under which the claims and counterclaims in this case are
premised, provides that “any court of the United States
. . . may declare the rights and other legal relations of any
interested party seeking such declaration.”
“Since its inception, the Declaratory Judgment Act has
been understood to confer on federal courts unique and
substantial discretion in deciding whether to declare the
rights of litigants.” Wilton v. Seven Falls
Co., 515 U.S. 277, 286 (1995). The United States Supreme
Court has “repeatedly characterized the Declaratory
Judgment Act as an enabling Act, which confers discretion on
the courts rather than an absolute right upon the
litigant.” Id. at 286-87. A district court
always has discretion whether to entertain an action for a
declaratory judgment. Cas. Indem. Exch. v. High Croft
Enters, Inc., 714 F.Supp. 1190, 1193 (S.D. Fla. 1989).
factual questions underpin many of the claims before this
Court. For example, New Hampshire Insurance contends that
there is no duty for it to indemnify Kendall Masonry because
there was no property damage in this case or, if there was
property damage, that damage did not occur during the
relevant insurance policy period. See DE 31.
Additionally, the “duty to indemnify is dependent upon
the entry of a final judgment, settlement, or a final
resolution of the underlying claims by some other
means.” Northland Cas. Co. v. HBE Corp., 160
F.Supp.2d 1348, 1360 (M.D. Fla. 2001). “[W]hereas the
duty to defend is measured by the allegations of the
underlying complaint, the duty to indemnify is measured by
the facts as they unfold at trial or are inherent in the
settlement agreement.” Id. Thus, courts
typically hold an insurer's duty to indemnify is not ripe
until the underlying suit is resolved and either stay or
dismiss an action for the same. See, e.g.,
Summit Contractors, Inc. v. Amerisure Mut. Ins. Co.,
No. 8:13-CV-295, 2014 WL 936734 (M.D. Fla. Mar. 10, 2014).
Consistent with the authority cited above, the instant Court
concludes that certain factual questions in this case-such as
when alleged property damage occurred and
what property was damaged-are not ripe for
to the factual questions in this case is the reality that,
for the moment, discovery in the underlying Alabama case has
been stayed. DE 53-1. Discovery in that case has been stayed
pending remediation of the property. Thus, discovery in the
underlying case is very likely to be impossible prior to
trial in the instant case, which is scheduled for October of
2018. For all of these reasons, a stay in this matter is
response, Defendants rely upon Higgins v. State Farm Fire
& Casualty Co., 894 So.2d 5 (Fla. 2004) for the
proposition that this Court need not await a decision in the
underlying action to resolve the indemnity questions before
the Court. This argument is unpersuasive for four reasons.
First, Higgins is a case by the Florida Supreme
Court considering the Florida Declaratory Judgment
Act-not the Federal Declaratory Judgment Act. Second, the
undersigned has already ruled in Coccaro v. GEICO General
Insurance Co., No. 9:14-CV-80461, 2015 WL 845584 (S.D.
Fla. Feb. 25, 2015), that even in a diversity case the
Federal Declaratory Judgment Act applies to a request for a
request for declaratory relief. Third, the undersigned's
decision was affirmed by the Eleventh Circuit in Coccaro
v. Geico General Insurance Co., 648 Fed.Appx. 876 (11th
Cir. 2016) (“Florida's Declaratory Judgment Act . .
. is a procedural mechanism that confers subject matter
jurisdiction on Florida's circuit and county courts; it
does not confer any substantive rights.”). Fourth even
if Higgins applied in the instant case,
Higgins recognized that a stay in a declaratory
judgment case is sometimes appropriate and committed the
decision in connection therewith to the discretion of the
trial court. Higgins, 894 So.2d at 17.
Court recognizes that perhaps some issues, such as Gemini
Insurance's argument that its insurance policy is void,
could be resolved without the need for discovery in the
underlying Alabama case. The Court is not inclined, however,
to allow only a portion of the arguments before it to proceed
while a subset of the arguments must await discovery in a
state court case that is stayed. Instead, the Court exercises
its sound discretion in this matter to stay this case.
foregoing reasons, Third-Party Defendant B&G's Motion
to Dismiss or, in the Alternative to Stay [DE 53] is
GRANTED insofar as this case is
STAYED pending a final resolution in the
underlying Alabama state court case, Enterprise City
Board of Education v. Brasfield & Gorrie LLC,
17-CV-2015-900144.00. The Clerk of the Court shall
DENY ALL PENDING MOTIONS AS MOOT and
CLOSE THIS CASE for administrative purposes.
The parties shall immediately notify this Court of a final
resolution in the underlying case.
 B&G's replies adequately
demonstrate why these factual questions are intertwined and
overlap with litigation in the underlying case and the Court
adopts and incorporates that ...