DocketNumber: Case No 2:17–cv–1976–RMG
Citation Numbers: 309 F. Supp. 3d 399
Filed Date: 2/22/2018
Status: Precedential
Modified Date: 7/25/2022
a. Primary Insurance
This insurance is primary except when Paragraph b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in Paragraph c. below.
b. Excess Insurance
(1) This insurance is excess over
(a) Any of the other insurance, whether primary, excess, contingent or on any other bases:
....
(b) Any other primary insurance available to you covering liability for damages arising out of the premises or operations, or the products and completed operations, for which you have been added as an additional insured by attachment of an endorsement.
(2) When this insurance is excess, we will have no duty under Coverages A or B to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those insurers.
(3) When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of:
(a) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and
(b) The total of all deductible and self-insured amounts under all other insurance.
(4) We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance Provision and was not brought specifically to apply in excess of the Limits of Insurance *403showing in the Declarations of this Coverage Part.
(Dkt. No. 1-1 at 25-26) (emphasis added).
II. Legal Standards
A. Rules 12(b)(1) and 12(b)(6)
A motion to dismiss for lack of subject matter jurisdiction filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure raises the fundamental question of whether a court has jurisdiction to adjudicate the matter before it. Arbaugh v. Y & H Corp. ,
A motion to dismiss for lack of subject matter jurisdiction can arise in two contexts: (1) when the moving party maintains that the complaint "fails to allege facts upon which subject matter jurisdiction can be based" or (2) when the moving party asserts that the "jurisdictional allegations of the complaint [are] not true." Adams v. Bain ,
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits of the claim, or the applicability of defenses.... Our inquiry then is limited to whether the allegations constitute 'a short and plain statement of the claim showing that the pleader is entitled to relief.' " Republican Party of N.C. v. Martin ,
To survive a motion to dismiss, the complaint must state "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly ,
B. Declaratory Judgment
Under Article III of the United States Constitution, federal courts may not *404grant declaratory relief unless an "actual controversy" exists. Maryland Casualty Co. v. Pacific Coal & Oil Co. ,
III. Discussion
A. Complete's Status as an Additional Insured and FCCI's Duty to Defend
FCCI seeks this Court's declaratory judgment that Complete qualifies as an additional insured under the policies Defendants issued to Complete's subcontractors and that FCCI is therefore absolved of its duty to defend Complete under the "Other Insurance" provision in the policies FCCI issued to Complete. The moving Defendants argue that FCCI's claims against them must be dismissed because FCCI cannot obtain a judicial declaration regarding a Defendant's duty to defend Complete under any insurance contract to which it is not a party. In support of their Motions to Dismiss, Defendants rely primarily on Sloan Constr. Co. v. Cent. Nat'l Ins. Co. of Omaha ,
In Sloan , the Supreme Court of South Carolina considered a dispute between two insurers about their obligations to defend Sloan in a lawsuit arising out of an auto accident. One insurer undertook Sloan's defense while the other refused to defend. The Court observed that "[t]he duty to defend is personal to each insurer" and "[t]he obligation is several and the insurer is not entitled to divide the duty nor require contribution from another absent a specific contractual right." Sloan ,
*405In Auto-Owners , United States District Judge R. Bryan Harwell applied Sloan when considering a declaratory judgment action brought by an insurance company in similar circumstances. Auto-Owners issued a commercial general liability policy to the insured and provided a defense to the insured in the underlying lawsuit. Travelers, which had issued a non-profit management and organization liability policy to the insured, refused to provide a defense. Auto-Owners filed suit seeking a judicial declaration that Travelers had a duty to defend their mutual insured in the underlying lawsuit. Judge Harwell determined that although Auto-Owners had standing to bring a declaratory judgment action
Applying Sloan and Auto-Owners , this Court finds that FCCI has failed to state a declaratory judgment claim against any of the six moving Defendants. As was the case in Auto-Owners , FCCI is not a party to any contract between a moving Defendant and one of Complete's subcontractors under which it alleges that Complete qualifies as an additional insured. For this reason, FCCI cannot compel any moving Defendant to fulfill an alleged duty to defend Complete under those contracts.
FCCI repeatedly insists that "is not seeking a declaration requiring another carrier to defend Complete," but rather seeks this Court's declaratory judgment to interpret the "other insurance" clause in *406its own policy. (Dkt. No. 101 at 6.) FCCI admits, however that it seeks to determine "whether Complete qualifies as an additional insured under one or more of its subcontractors' policies, whether such policies include a duty to defend, and whether any coverage is primary." (Id. at 5.) FCCI claims that if its "policies are excess, then FCCI has the right to elect not to continue to defend Complete." (Dkt. No. 101 at 5.) The plain language of the contract does not confer that right upon FCCI. The contract provides that, "If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those insurers." (Dkt. No. 1-1 at 25-26.) For this reason, even if this Court issued the requested declaration-that Complete qualifies as an additional insured under one of the subcontractor's policies-that declaration would not be sufficient for FCCI to obtain the relief it seeks because it has contracted to defend Complete if "no other insurer defends," and, under Auto-Owners , cannot compel the moving Defendants to defend Complete in the underlying suit.
A court should only grant a declaratory judgment "when the judgment will serve a useful purpose in clarifying and settling legal relations in issue, and when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding." Centennial Life Ins. Co. v. Poston ,
B. Indemnification
No factual findings have been made in the underlying lawsuit, so a determination of whether any party has a duty to indemnify is not ripe for this Court's consideration. See Certain Underwriters at Lloyd's London v. Butler , No. 1:16-CV-00975-JMC,
IV. Motion to Amend
Plaintiff FCCI has filed a Motion for Leave to File a Second Amended Complaint. (Dkt. No. 126.) FCCI seeks to dismiss certain parties from the lawsuit, replace improperly identified parties, and add additional information, but says it does not seek to advance any new legal theories. Because FCCI's claims against the six moving Defendants are subject to dismissal under South Carolina law and Fourth Circuit precedent, FCCI's pending Motion for Leave to File a Second Amended Complaint is denied without prejudice. FCCI may file a new motion for leave to *407amend after considering this Order and conferring with opposing counsel.
V. Conclusion
For the reasons set forth below, the six Motions to Dismiss (Dkt. Nos. 14, 38, 43, 48, 92, 95) are GRANTED. FCCI's Motion for Leave to File a Second Amended Complaint (Dkt. No. 128) is DENIED WITHOUT PREJUDICE.
AND IT IS SO ORDERED.
Standing requires "a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Md. Cas. Co. v. Pac. Coal & Oil Co. ,
Judge Harwell observed that "[t]he Supreme Court of South Carolina has not addressed whether an insurance company may seek to require another insurer to defend its insured up front via a declaratory judgment," but the parties did not ask Judge Harwell to certify the question. Auto-Owners,
The Fourth Circuit affirmed Judge Harwell's decision, concluding that, under Sloan , "Auto-Owners is not entitled to declaratory or monetary relief under South Carolina law."