American Safety Indemnity Company v. T. H. Taylor, Inc. et al

Filing 68

ORDER setting the 64 MOTION to Alter Judgment 63 Judgment for submission, without oral argument, as further set out; directing plaintiff to file a brief addressing federal concerns, as further set out, by 5/26/2011; directing defendant to file briefs by 6/3/2011. Signed by Honorable Myron H. Thompson on 5/17/2011. (br, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION AMERICAN SAFETY INDEMNITY COMPANY, an insurance company incorporated in the State of Oklahoma, ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. T.H. TAYLOR, INC., et al Defendants. CIVIL ACTION NO. 2:10cv48-MHT (WO) ORDER It is ORDERED as follows: (1) The plaintiff’s motion to alter or amend judgment (doc. no. 64) is set for submission, without oral argument, on June 3, 2011. (2) It may be that a state court could address the plaintiff’s duty-to-indemnify claim. motion, the plaintiff does not However, in its address two federal concerns raised in the court’s opinion when the court states that “a declaration is not only inappropriate under the Declaratory Judgment Act but also because a ‘case’ or ‘controversy’ is lacking.” American Safety Indemnity Company v. T.H. Taylor, Inc., 2011 WL 1188433, *6 (M.D. Ala. March 29, 2011) (citing Auto-Owners Ins. Co. v. Toole, 947 F.Supp. 1557, 1565-66 (M.D. Ala. 1996) (Thompson, J.)): The first concern is whether the plaintiff’s duty-to-indemnify claim presents a ‘case or controversy.’ See Nationwide Insurance v. Zavalis, 52 F.3d 689, 693 (7th Cir. 1995) (“the duty to indemnify is not ripe for adjudication until the insured is in fact held liable in the underlying lawsuit”). The second is whether, because this lawsuit has been brought under the Declaratory Judgment Act and because the court has discretion under that statute to resolve a matter, the court should exercise its discretion not to resolve the plaintiff’s duty-to-indemnify claim even if the case presents a case or controversy. See Wilton v. Seven Falls Company, 515 U.S. 277, 288 (l995) (because there is “nothing automatic or obligatory about the assumption of ‘jurisdiction’ by a federal court to hear a declaratory 2 judgment action,” a district court is authorized in the sound exercise of its discretion, to stay or dismiss an action seeking a (citation omitted). declaratory judgment before trial) The plaintiff should file a brief addressing these two federal concerns by May 26, 2011. (3) The defendants are to file briefs by June 3, 2011. DONE, this the 17th day of May, 2011. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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