National Trust Insurance Company v. Burdette et al
MEMORANDUM OPINION AND ORDER directing that the 9 Motion to dismiss is DENIED. Signed by Honorable W. Harold Albritton, III on 5/11/11. (scn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NATIONAL TRUST INSURANCE
LARRY BURDETTE and NANCY
VATCA, as Co-Administrators of the
ESTATE of NICHOLAS T. BURDETTE,
Deceased; A-1 INDUSTRIAL
MAINTENANCE, INC.; ARONOV
REALTY MANAGEMENT, INC.;
EASTDALE MALL, LLC,
) CIVIL ACTION NO. 2:11cv71-WHA-TFM
MEMORANDUM OPINION AND ORDER
This case is before the court on a Motion to Dismiss (Doc. #9) filed by Defendants Larry
Burdette and Nancy Vatca (collectively, the “Moving Defendants”).
Plaintiff, National Trust Insurance Company (“National Trust”), filed a Complaint in this
court on January 28, 2011, against the Moving Defendants, as well as Defendants A-1 Industrial
Maintenance, Inc. (“A-1 Industrial”), Aronov Realty Management, Inc. (“Aronov”), and
Eastdale Mall, LLC (“Eastdale Mall”). In the Complaint, National Trust requests that this court
grant declaratory judgment in its favor and find that it owes no obligation to defend or indemnify
A-1 Industrial, Aronov, or Eastdale Mall in a currently-pending state court action. The Moving
Defendants have moved to dismiss National Trust’s Complaint in its entirety, on the basis of
The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (diversity),
because there is complete diversity of citizenship, and the amount in controversy exceeds
$75,000, exclusive of interest and costs. See Roe v. Michelin N. Am., Inc., 637 F. Supp. 2d 995,
999-1000 (M.D. Ala. 2009) (Thompson, J.) (stating that judicial expertise and common sense
may be applied to determine that a wrongful death claim in Alabama, due to punitive damages,
exceeds the amount in controversy requirement, and finding the amount in controversy
requirement was met when, like in the state court complaint in the instant case, the plaintiff
alleged wanton conduct that caused the wrongful death at issue).
For reasons to be discussed, the Motion to Dismiss is due to be DENIED.
II. MOTION TO DISMISS STANDARD
The court accepts the plaintiff’s factual allegations as true, Hishon v. King & Spalding,
467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff’s favor, Duke v. Cleland, 5
F.3d 1399, 1402 (11th Cir. 1993). In analyzing the sufficiency of pleading, the court is guided
by a two-prong approach: one, the court is not bound to accept conclusory statements of the
elements of a cause of action and, two, where there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to entitlement
to relief. See Ashcroft v. Iqbal, _ U.S. _, 129 S. Ct. 1937, 1949-50 (2009). “[A] plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive a motion to
dismiss, a complaint need not contain “detailed factual allegations,” but instead the complaint
must contain “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
The factual allegations “must be enough to raise a right to relief above the speculative level.” Id.
The allegations of the Plaintiff’s Complaint are as follows:
On June 20, 2010, Nicholas T. Burdette died while working as a janitor at the Eastdale
Mall in Montgomery, Alabama. Nicholas’s parents, the Moving Defendants, sued Aronov,
Eastdale Mall, A-1 Industrial, and other parties for wrongful death in Alabama state court (the
“Burdette Lawsuit”).1 The Moving Defendants alleged that Nicholas died due to the inhalation
of industrial refrigerant (freon R-22) from either Eastdale Mall’s cooling system, Eastdale Mall’s
skating rink’s cooling system, or both. The Moving Defendants further alleged that the reason
Nicholas inhaled the refrigerant was due to Aronov, Eastdale Mall, and A-1 Industrial’s failure
to properly “monitor, maintain, inspect, and/or repair” these cooling systems and their
Prior to the Burdette Lawsuit National Trust issued a Commercial General Liability
Policy (the “Insurance Policy”) to A-1 Industrial, which potentially creates an obligation to, inter
alia, defend and indemnify A-1 Industrial, Aronov, and Eastdale Mall in the Burdette Lawsuit.
National Trust is currently defending A-1 Industrial in the Burdette Lawsuit. However, National
Trust asserts that it has no duty to defend or indemnify A-1 Industrial, Aronov, or Eastdale Mall
The suit was brought in the Circuit Court of Montgomery County, Alabama. See Exs.
due to exclusions in the Insurance Policy. National Trust brought the instant declaratory
judgment action to have this court order that National Trust has no such duties.
The Moving Defendants argue that this court should abstain from deciding National
Trust’s declaratory judgment action under the Wilton-Brillhart Abstention Doctrine. The court
rejects the Moving Defendants’ argument, because the Wilton-Brillhart Abstention Doctrine
does not apply to this case.
“[D]istrict courts possess discretion in determining whether and when to entertain an
action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter
jurisdictional prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 281-82 (1995) (citing
Brillhart v. Excess Ins. Co., 316 U.S. 491, 494 (1942)). In declaratory judgment actions, “the
normal principle that federal courts should adjudicate claims within their jurisdiction yields to
considerations of practicality and wise judicial administration.” Id. at 288.
Under the Wilton-Brillhart Abstention Doctrine, both the Eleventh Circuit and Supreme
Court have cautioned against a district court exercising its jurisdiction over a declaratory
judgment action when “another suit is pending in a state court  presenting the same issues, 
not governed by federal law,  between the same parties.” Ameritas Variable Life Ins. Co. v.
Roach, 411 F.3d 1328, 1330 (11th Cir. 2005) (quoting Brillhart, 316 U.S. at 495). If a suit
presents these issues, the Eleventh Circuit has espoused nine factors for district courts to
consider when determining whether to exercise jurisdiction over such a suit. Id. at 1331.2
In Ameritas, the Eleventh Circuit applied the Wilton-Brillhart Abstention Doctrine, and
held that it was not an abuse of discretion for a district court to abstain when (1) in federal court,
an insurer sought a declaratory judgment as to whether the insured’s beneficiary could claim
death benefits from an insurance policy; and (2) in state court, the insured’s beneficiary filed an
action against the insurer for, among other claims, breach of the insurance policy. Id. at 132930.
In contrast to Ameritas, the Wilton-Brillhart Abstention Doctrine does not apply to the
instant case. First, National Trust, unlike the insurer in Ameritas, is not a party to the state-court
suit in this case. Second, the issue of National Trust’s insurance policy’s applicability or validity
These factors are:
(1) the strength of the state’s interest in having the issues raised in the federal
declaratory action decided in the state courts;
(2) whether the judgment in the federal declaratory action would settle the
(3) whether the federal declaratory action would serve a useful purpose in
clarifying the legal relations at issue;
(4) whether the declaratory remedy is being used merely for the purpose of
“procedural fencing”-that is, to provide an arena for a race for res judicata or to
achieve a federal hearing in a case otherwise not removable;
(5) whether the use of a declaratory action would increase the friction between
our federal and state courts and improperly encroach on state jurisdiction;
(6) whether there is an alternative remedy that is better or more effective;
(7) whether the underlying factual issues are important to an informed resolution
of the case;
(8) whether the state trial court is in a better position to evaluate those factual
issues than is the federal court; and
(9) whether there is a close nexus between the underlying factual and legal issues
and state law and/or public policy, or whether federal common or statutory law
dictates a resolution of the declaratory judgment action.
Ameritas, 411 F.3d at 1331.
is not at issue in the state-court suit. Accordingly, the Wilton-Brillhart Abstention Doctrine does
not apply, and therefore, this court need not engage in analyzing the nine Ameritas factors in
deciding whether to exercise jurisdiction. See also Specialty Underwriters Alliance v. Peebles
McManus LLC, 643 F. Supp. 2d 1298, 1301 (M.D. Ala. 2009) (Fuller, C.J.) (“Here, neither the
parties nor the issues are the same in the underlying state suit. . . . Hence, this case is unlike
Brillhart, Wilton, and [Ameritas], which all involved (and only bind this Court with respect to)
“parallel” proceedings between the same parties and involving the same issues.”).3
For the foregoing reasons, it is hereby ORDERED that the Motion to Dismiss (Doc. #9)
Done this 11th day of May, 2011.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
All of the cases cited by the Moving Defendants, in addition to Ameritas, are
distinguishable because they involved state court suits that were identical in terms of issues and
parties to the federal declaratory suits. See Great Lakes Reinsurance (UK) PLC v. TLU Ltd., 298
F. App’x 813, 814, 817 (11th Cir. 2008); St. Paul Fire & Marine Ins. Co. v. Johnson Homes of
Meridian, Inc., No. 05-0412-C, 2005 WL 2739141, *1-2, *9 (S.D. Ala. Oct. 24, 2005).
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