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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11221
____________________
NATIONWIDE MUTUAL INSURANCE COMPANY,
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY,
NATIONWIDE GENERAL INSURANCE COMPANY,
Plaintiffs-Appellees,
versus
DAVID J BARROW,
ANN BARROW,
Defendants,
A.B.,
a minor, by and through her next of friend and
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2 Opinion of the Court 21-11221
parent, J.B.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:19-cv-01019-ACA
____________________
Before WILLIAM PRYOR, Chief Judge, JORDAN, and ANDERSON, Cir-
cuit Judges.
WILLIAM PRYOR, Chief Judge:
This appeal concerns whether A.B., a victim of sexual abuse,
can appeal a declaratory judgment that an insurer has no duty to
defend the insured man who abused her. Because A.B. is not in-
jured by the declaratory judgment, we dismiss for lack of jurisdic-
tion.
I. BACKGROUND
A.B. is a young woman who was sexually exploited by her
mother and David Barrow when she was 10 years old. Barrow was
A.B.’s mother’s boss. On multiple occasions, A.B.’s mother ar-
ranged for Barrow to take sexually explicit photographs of A.B.
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21-11221 Opinion of the Court 3
During the fourth instance of these photographs being
taken, Barrow molested A.B. Barrow molested A.B. four or five
times. Barrow also took photographs of himself abusing A.B. The
abuse and photographing occurred at a hotel and at Barrow’s home
in Alabama.
Barrow was arrested in 2014 for sex crimes. In 2015, Barrow
was indicted by a Madison County grand jury for human traffick-
ing, sexual abuse of a child less than 12 years old, sodomy, and con-
spiracy to commit sexual abuse of a child less than 12 years old.
Barrow pleaded guilty to two counts of human trafficking in 2016
and was sentenced for each count to imprisonment for 30 years to
be served concurrently.
In February 2018, A.B. filed a lawsuit against Barrow in an
Alabama court. A.B. issued a non-party subpoena to Barrow’s in-
surance agent requesting copies of property and casualty insurance
policies covering Barrow. In April 2019, A.B.’s attorney sent Na-
tionwide Mutual Insurance Company a letter explaining that if A.B.
secured a judgment against Barrow, A.B. would then seek satisfac-
tion from Nationwide under Barrow’s homeowner, dwelling, or
personal umbrella policy.
Nationwide filed an action for a declaratory judgment in the
district court naming Barrow, Barrow’s former spouse, and A.B. as
defendants. See
28 U.S.C. § 2201;
id. § 1332. Nationwide sought a
declaration that it owed no duty to defend or indemnify Barrow in
the state court action A.B. is pursuing against him and his former
spouse. A.B. is the only party who appeared in the district court to
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4 Opinion of the Court 21-11221
defend against Nationwide’s action. The district court dismissed
Nationwide’s duty-to-indemnify claim for lack of subject-matter ju-
risdiction because it was not ripe.
Nationwide moved for summary judgment on the remain-
ing duty-to-defend claim. The district court granted a summary
judgment for Nationwide against A.B. and a default judgment
against David Barrow and his former spouse. A.B. filed a motion to
alter or amend the judgment. See FED. R. CIV. P. 59(e). The district
court denied A.B.’s Rule 59 motion.
II. STANDARD OF REVIEW
“We review de novo questions of our jurisdiction.” United
States v. Amodeo,
916 F.3d 967, 970 (11th Cir. 2019).
III. DISCUSSION
In every appeal, the “first and fundamental question is that
of jurisdiction, first, of this court, and then of the court from which
the record comes.”
Id. at 970 (internal quotation marks omitted). If
jurisdiction might be lacking, we are obliged to sua sponte assure
ourselves of our own jurisdiction. See Cadet v. Bulger,
377 F.3d
1173, 1179 (11th Cir. 2004). If we lack jurisdiction, our only remain-
ing function is to announce that we lack jurisdiction and dismiss
the cause. Amodeo, 916 F.3d at 971.
“To have a case or controversy, a litigant must establish that
he has standing, which must exist throughout all stages of litiga-
tion.” Id. (internal quotation marks omitted). To establish standing,
a litigant must have “suffered a concrete and particularized injury
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21-11221 Opinion of the Court 5
that is fairly traceable to the challenged conduct . . . and is likely to
be redressed by a favorable judicial decision.” Hollingsworth v.
Perry,
570 U.S. 693, 704 (2013). “The standing Article III requires
must be met by persons seeking appellate review, just as it must be
met by persons appearing in courts of first instance.” Arizonans for
Off. Eng. v. Arizona,
520 U.S. 43, 64 (1997).
“Only a litigant who is aggrieved by the judgment or order”
has appellate standing. Wolff v. Cash 4 Titles,
351 F.3d 1348, 1354
(11th Cir. 2003) (internal quotation marks omitted). “[I]t is not
enough” that the party appealing the judgment has “a keen interest
in” the judgment. See Hollingsworth, 570 U.S. at 700. The party
appealing “must seek relief for an injury that affects him in a per-
sonal and individual way.” Id. at 705 (internal quotation marks
omitted). If the judgment of the district court does not injure the
party appealing that judgment, then the party does not have appel-
late standing. See Amodeo, 916 F.3d at 971; 15A CHARLES A.
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3902 (2d ed.
April 2021 update) (explaining that “standing to appeal” requires an
“injury caused by the judgment rather than injury caused by the
underlying facts”).
The Supreme Court has held that there can be “an actual
controversy” in an action for declaratory judgment between an in-
surance provider and an individual injured by an insured. Maryland
Cas. Co. v. Pac. Coal & Oil Co.,
312 U.S. 270, 274 (1941). It reversed
the dismissal of an injured individual from an action for a declara-
tory judgment brought by an insurer against its insured on the
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6 Opinion of the Court 21-11221
ground that there was no controversy between the injured individ-
ual and the insurer.
Id. at 271–72. The Supreme Court held that
there was a controversy between the injured individual and the in-
surance company because the action would determine whether the
insurer “was . . . obligated under the policy” to provide coverage,
including a duty to defend and indemnify, to the insured. See
id. at
274, 272–73.
For similar reasons, our predecessor Court, in Dairyland In-
surance Co. v Makover, held that an injured tort claimant has
standing to appeal a declaratory judgment that an insurance policy
provided no coverage for the incident that injured the tort claim-
ant.
654 F.2d 1120, 1122 (5th Cir. Unit B 1981); see also Standard
Accident Ins. Co. v. Meadows,
125 F.2d 422–23 (5th Cir. 1942)
(holding that a district court improperly dismissed a tort claimant
in a declaratory-judgment action brought by an insurer against the
insured and the tort claimant seeking a declaratory judgment that
the relevant incident was not “within the coverage of its policy”).
The Fifth Circuit explained that the tort claimant had standing as a
“potential judgment creditor[] claiming liability in a state court tort
suit against the putative insured” to appeal a decision that held that
he could not seek satisfaction from the insurer because the insurer
had no obligations under the insurance policy. Dairyland Ins.,
654
F.2d at 1123. That kind of judgment injures the tort claimant in “a
concrete and particularized . . . [way] that is fairly traceable to the
challenged [judgment] . . . and is likely to be redressed by a
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21-11221 Opinion of the Court 7
favorable judicial decision” on appeal. See Hollingsworth, 570 U.S.
at 704; Cash 4 Titles,
351 F.3d at 1354.
This appeal presents a different question: whether a declar-
atory judgment that an insurer has no duty to defend an insured
injures a tort claimant so as to confer Article III standing to appeal.
Maryland Casualty and Dairyland Insurance both involved actions
that had a direct bearing on whether the tort claimant could re-
cover from the insurer because they addressed whether the insurer
had any duty to indemnify the insured. See Maryland Cas.,
312 U.S.
at 273–74; Dairyland Ins.,
654 F.2d at 1123. Those decisions did not
address whether a declaratory judgment that the insurer has no
duty to defend injures a tort claimant like A.B.
Only two of our sister circuits have addressed the question
presented in a precedential decision, and both circuits held that a
tort claimant lacks standing to challenge a declaratory judgment
that an insurer has no duty to defend its insured. First, the Seventh
Circuit held that a party in the same posture as A.B. had no stand-
ing to appeal a declaratory judgment that the insurer had no duty
to defend the insured. Grinnell Mut. Reinsurance Co. v. Reinke,
43
F.3d 1152, 1153–54 (7th Cir. 1995). The Seventh Circuit explained
that the victim of a tort is “helped rather than harmed” by a judg-
ment declaring that an insurer is not required to defend the victim’s
adversary.
Id. at 1154. And it held that “[b]ecause the victims are
not entitled to contest the district court’s conclusion that [the in-
surer] need not defend the [insured] in the tort litigation, nothing
remain[ed] of th[e] appeal.”
Id. Second, the Sixth Circuit held that
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8 Opinion of the Court 21-11221
a county lacked standing to assert that an insurer had a duty to de-
fend an insured county police officer in a tort action brought by a
tort claimant. Allstate Ins. Co. v. Wayne Cnty.,
760 F.2d 689, 695
(6th Cir. 1985). The county was differently situated from A.B. be-
cause it was a defendant in the underlying tort action, but our sister
circuit’s reasoning applies with equal force here. The Sixth Circuit
explained that, because “the duty to defend is a right affecting only
the obligations of the insurer vis-a-vis the insured,” other parties do
not have standing to enforce that right on behalf of the insured.
Id.
(emphasis added).
A.B. is not injured by the declaratory judgment. After dis-
missing Nationwide’s duty-to-indemnify claim as unripe, the dis-
trict court declared that Nationwide owes no duty to defend Bar-
row in A.B.’s state court action. The result of that declaratory judg-
ment is that Nationwide is not required to defend Barrow in that
action. And a “declaratory judgment relieving [Nationwide] of any
obligation to defend [Barrow] help[s] rather than harm[s] [A.B.]”
because “[A.B.] want[s] a weak defense” in her state court action,
“not a strong one.” See Reinke,
43 F.3d at 1153–54.
A.B. is also not injured by any preclusive effect of the declar-
atory judgment. If A.B. cannot obtain review of the declaratory
judgment, it lacks preclusive effect on her. Restatement (Second)
of Judgments § 28 (1982) (“[R]elitigation of [an] issue in a subse-
quent action between the parties is not precluded” when “[t]he
party against whom preclusion is sought could not, as a matter of
law, have obtained review of the judgment in the initial action.”);
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21-11221 Opinion of the Court 9
see also id. § 28 cmt. a (“[T]he availability of review for the correc-
tion of errors [is] critical to the application of preclusion doctrine.”).
As the Supreme Court of Alabama has explained, a litigant is not
precluded by the doctrine of res judicata or collateral estoppel
when the litigant is unable to “assert its claims” or fully seek “a cer-
tain remedy or form of relief” because of “the limitations on the
. . . jurisdiction of the courts.” See Lloyd Noland Found., Inc. v.
HealthSouth Corp.,
979 So. 2d 784, 795–96 (Ala. 2007) (holding that
a litigant was not barred by the doctrine of collateral estoppel or
res judicata from bringing an action in state court because the fed-
eral court that issued the prior judgment on related issues would
have lacked jurisdiction to determine the issue in the state court
action) (citing Restatement (Second) of Judgments §§ 26, 28). So,
A.B. can assert that notice was sufficient in the underlying state
court action with the evidence submitted in her Rule 59(e) motion.
Cf. Reinke,
43 F.3d at 1153–54; Ladner & Co. v. S. Guar. Ins. Co.,
347 So. 2d 100, 103–04 (Ala. 1977) (“[I]t cannot be determined at
the [duty-to-defend] stage” whether the insurance company “is ob-
ligated to pay any judgment.”).
A.B. lacks appellate standing. A.B suffered no injury from
the judgment in favor of Nationwide. Reinke,
43 F.3d at 1154 (ex-
plaining that a litigant “who cannot show how the judgment in-
jured [him] in a way the court of appeals can correct, [is] not [a]
proper appellant[]”). “Because [A.B.] lacks standing, we must dis-
miss this appeal.” Amodeo, 916 F.3d at 973 (internal quotation
marks omitted).
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10 Opinion of the Court 21-11221
IV. CONCLUSION
We DISMISS this appeal for lack of jurisdiction.
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21-11221 JORDAN, J., Concurring 1
JORDAN, Circuit Judge, concurring dubitante:
Decades ago, the legal philosopher Lon Fuller explained that
a judge concurs dubitante when he is uncomfortable or unhappy
with something in the majority opinion but is not confident
enough to dissent from the result. See Lon L. Fuller, Anatomy of
the Law 147 (1968). That description accurately describes my situ-
ation here.
Relying on the decisions of the Sixth and Seventh Circuits in
Allstate Ins. Co. v. Wayne County,
760 F.2d 689, 695 (6th Cir.
1985), and Grinnell Mutual Reinsurance Co. v. Reinke,
43 F.3d
1152, 1154 (7th Cir. 1995), the majority holds that A.B.—the tort
claimant—lacks Article III standing to appeal a declaratory judg-
ment that Nationwide has no duty to defend its insured, David Bar-
row—the alleged tortfeasor. On one level, Wayne County and
Reinke make sense. If standing to appeal requires an “injury caused
by the judgment rather than injury caused by the underlying facts,”
15A Wright & Miller, Federal Practice & Procedure § 3902 (2d ed.
& April 2021 update), it is not obvious that a tort claimant is injured
or aggrieved by a judgment declaring that the alleged tortfeasor is
not owed a defense by his insurer. Whether or not the alleged tort-
feasor has a defense provided by the insurer, the tort claimant will
be able to press her claim and, if successful, obtain a money judg-
ment against him. See, e.g., Wayne County,
760 F.2d at 695
(“Wayne County can demonstrate no threatened injury resulting
from Allstate’s failure to defend Russo.”).
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2 JORDAN, J., Concurring 21-11221
There are, however, some cracks in the edifice. The Su-
preme Court held long ago that there is an actual case or contro-
versy between an insurer and a tort claimant. See Maryland Casu-
alty Co. v. Pac. Coal & Oil Co.,
312 U.S. 270, 274 (1941). And the
former Fifth Circuit has similarly concluded that “whether an in-
surer is bound [under] an automobile insurance policy by a judg-
ment against its insured . . . presents a controversy for declaratory
judgment as between it, its insured and the plaintiff in a damage
suit against its insured.” Standard Acc. Ins. Co. v. Meadows,
125
F.2d 422, 424 (5th Cir. 1942) (holding that it was plain error for the
district court to have dismissed the tort claimants from the declar-
atory judgment action filed by the insurer, which alleged that it
“was not obligated to defend the state court [tort] action or to pay
and satisfy any judgment which [the claimants] might recover”). In
such cases, it can be said that the “concept of standing is . . . sub-
sumed in the case-or-controversy analysis.” Fed. Kemper Ins. Co.
v. Rauscher,
807 F.2d 345, 351 (3d Cir. 1986).
The Seventh Circuit has remarked that “[i]t would be anom-
alous to hold . . . that an actual controversy exists between [the tort
claimant] and [the insurer] and yet deny [that claimant] the right to
participate in the controversy.” Hawkeye-Sec. Ins. Co. v. Schulte,
302 F.2d 174, 177 (7th Cir. 1962). That observation seems particu-
larly apt when the insurer chooses to bring the tort claimant into
the case by naming her as a defendant in its declaratory judgment
action. See, e.g., Meadows, 125 F.2d at 423–24. Accord Auto. Un-
derwriters Corp. v. Graves,
489 F.2d 625, 627–28 (8th Cir. 1973)
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21-11221 JORDAN, J., Concurring 3
(“An injured person having a possible claim against an insurer who
has been made a party defendant to an action for declaratory judg-
ment possesses the requisite interest to be heard on appeal notwith-
standing that the court in entering a judgment on the merits dis-
misses the action against all parties other than the policyholder.”).
In Dairyland Insurance Co. v. Makover,
654 F.2d 1120 (5th
Cir. Unit B 1981), the insurer, following a car accident, sought a
declaratory judgment that the driver of the vehicle which caused
the accident was not covered by the terms of its policy. See
id. at
1122. The declaratory judgment action was filed while the under-
lying tort suit was pending. The defendants to the declaratory
judgment action were the insured, the driver of the vehicle, and
the tort claimants who had filed the suit against the insured seeking
recovery for their personal injuries. See
id. After the district court
entered a declaratory judgment in favor of the insurer, the tort
claimants appealed.
Id. at 1122–23.
The insurer argued that the tort claimants lacked standing
to appeal “because they were merely nominal defendants in th[e]
declaratory judgment action.”
Id. at 1123. More particularly, it as-
serted that the tort claimants were “merely potential or contingent
judgment creditors” and that “the availability of insurance pro-
ceeds to satisfy a potential judgment [was] only a remote and sec-
ondary consequence of th[at] litigation.”
Id. The Fifth Circuit re-
jected the insurer’s argument and held that “the [tort claimants], as
potential judgment creditors claiming liability in a state court tort
suit against the putative insured, have standing to appeal the
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4 JORDAN, J., Concurring 21-11221
judicial declaration that the policy of insurance issued by [the in-
surer] does not cover the putative insured.”
Id. It was “decisive”
to the Fifth Circuit’s holding “that [the insurer] named the [tort
claimants] as defendants in its declaratory judgment action.”
Id.
The majority distinguishes cases like Maryland Casualty,
Meadows, and Dairyland Insurance on the ground that they in-
volved the duty to indemnify rather than—as here—the duty to
defend. That distinction likely works, but “standing is not dis-
pensed in gross,” Town of Chester, N.Y. v. Laroe Estates, Inc.,
137
S. Ct. 1645, 1650 (2017) (internal quotation marks and citation
omitted), and at least Meadows, 125 F.2d at 424, involved both the
duty to defend and the duty to indemnify. If the tort claimant in
Meadows needed standing to appeal for each claim, there is an ar-
gument that the Fifth Circuit’s standing ruling encompassed the
duty to defend as well as the duty to indemnify. Cf. Looney Ricks
Kiss Architects, Inc. v. State Farm Fire & Cas. Co.,
677 F.3d 250,
257 n.5 (5th Cir. 2012) (stating, in dicta, that based on Dairyland
Insurance a tort claimant had standing to “seek a declaration that
[the insurer] owes a duty to defend its insureds”).
Both the duty to defend and the duty to indemnify present
a question of coverage. See generally 14 Couch on Insurance
§§ 200:12, 201:16 (3d ed. 2021). The difference is that the duty to
defend is determined by the allegations made by a tort claimant in
her complaint, while the duty to indemnify is determined by the
facts the tort claimant is ultimately able to prove. See id. at
§ 200:20. So if the tort claimant proves the exact allegations in her
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21-11221 JORDAN, J., Concurring 5
complaint—a circumstance which I assume is not unusual—the de-
termination concerning the duty to indemnify will necessarily be
the same as the determination concerning the duty to defend.
When viewed from this perspective, one can see how a tort
claimant will be adversely affected by a judgment which declares
that there is no duty to defend because the facts she alleged do not
come within the scope of coverage. It may be, as the majority says,
that a tort claimant who is not able to appeal an adverse ruling on
the duty to defend will not be legally bound by that ruling. On the
ground, however, the reality can be starkly different.
Assume that the tort claimant is able to prevail against the
insured (the alleged tortfeasor) by proving the exact facts alleged in
her complaint. She will then presumably go after the insurer to
collect her judgment from the insurance proceeds. That second
case will likely be filed in the same district court that entertained
the insurer’s initial declaratory judgment action, and, if so, will
likely be transferred as a related case to the same judge who pre-
sided over the first action. The tort claimant, then, will be asking
that judge to change her mind and rule that there is coverage based
on the facts proved at trial, which are the same as those alleged in
the complaint. The insurer, on the other hand, will tell the judge
that she got it right the first time and that nothing has changed. Res
judicata and collateral estoppel may not apply, but the ruling in the
first declaratory judgment action will hang over the second suit like
a “brooding omnipresence.” S. Pac. Co. v. Jensen,
244 U.S. 205,
222 (1917) (Holmes, J., dissenting). Just ask any experienced
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6 JORDAN, J., Concurring 21-11221
attorney how difficult it is to get a judge to reconsider a prior rul-
ing, even if it is susceptible to criticism.
I have my doubts about the result in this case, but they are
not strong enough to advocate that we create a circuit split by de-
viating from Wayne County and Reinke. I therefore concur in the
judgment.
