North Carolina Farm Bureau Mutual Insurance v. Warren

HEDRICK, Chief Judge.

Although the question has not been discussed by either party in its brief, we ex mero mo tu consider whether plaintiff, in its complaint, has alleged an actual justiciable controversy in support of a declaratory judgment action.

An actual controversy must exist for there to be an action under the Declaratory Judgment Act. Sharpe v. Park Newspapers of Lumberton, 317 N.C. 579, 347 S.E. 2d 25 (1986). Determination of what is an actual controversy and how the act operates is found in Lide v. Mears, 231 N.C. 111, 117, 56 S.E. 2d 404, 409 (1949):

There is much misunderstanding as to the object and scope of this legislation. Despite some notions to the contrary, it does not undertake to convert judicial tribunals into counsellors and impose upon them the duty of giving advisory opinions to any parties who may come into court and ask for either academic enlightenment or practical guidance concerning their legal affairs. [Citations omitted.] This observation may be stated in the vernacular in this wise: The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advice.

The existence of an actual controversy must be shown in the complaint. Kirkman v. Kirkman, 42 N.C. App. 173, 256 S.E. 2d 264, disc. rev. denied, 298 N.C. 297, 259 S.E. 2d 300 (1979). It is not necessary that one party have an actual right of action against another, but there must be more than a mere disagreement. Sharpe v. Park Newspapers of Lumberton, 317 N.C. 579, 347 S.E. 2d 25 (1986). This means it must be shown in the complaint that litigation appears unavoidable. Gaston Bd. of Realtors v. Harrison, 311 N.C. 230, 316 S.E. 2d 59 (1984).

In this case, the complaint alleges nothing more than the possibility that plaintiff may be responsible for any excess above Eastern Area Health Education Agency’s liability coverage. It is not evident from the complaint how much injury was sustained by defendant Popkin. Indeed, plaintiff does not even allege that it has been called upon to defend the action or participate in any way. Plaintiff merely alleges that it is “informed and believes that both of the Defendants herein contend that the policy of insurance issued to Daryl A. Warren by the Plaintiff provides excess coverage to Melinda Barefoot Warren which would be available to satisfy any judgment which exceeded the limits of liability of the Eastern Area Health Education Agency’s policy.”

Mere threat of a suit is not enough to create jurisdiction for a declaratory judgment action. Gaston Bd. of Realtors v. Harrison, 311 N.C. 230, 316 S.E. 2d 59 (1984). In this case there is not even an allegation of a threat. The complaint totally lacks any allegation sufficient to give a court jurisdiction under the Declaratory Judgment Act. The act does not “require the court to give a purely advisory opinion which the parties might, so to speak, put on ice to be used if and when occasion might arise.” Tryon v. Power Co., 222 N.C. 200, 204, 22 S.E. 2d 450, 453 (1942). At this stage the court can only speculate with respect to the issues plaintiff attempts to raise in its complaint. Speculation is for the classroom, not the courtroom. It is the duty of the court to adjudicate, not to hypothecate.

For these reasons, we hold plaintiff has failed to allege sufficient facts to show the existence of an actual or justiciable controversy with regard to the insurance policy issued to defendant Warren’s husband. Therefore, the court lacked jurisdiction to make any declaration under the Declaratory Judgment Act.

The judgment of the Superior Court entered 20 August 1987 is vacated, and the matter is remanded to the Superior Court of Pitt County for entry of an Order dismissing the proceeding.

Vacated and remanded.

Judges Becton and Smith concur.