QBE Insurance Corporation v. Whispering Pines Cemetery, LLC et al
ORDER denying 27 Motion to Consolidate. Signed by Judge Kristi K. DuBose on 2/22/2013. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
QBE INSURANCE CORPORATION,
) CIVIL ACTION NO. 12-0054-KD-C
WHISPERING PINES CEMETERY, LLC, )
QUEEN PETTWAY, CARLIS EATON,
ROSIE MAY ABRAMS, COURTNEY
VASHAY ABRAMS, JERMAINE ABRAMS, )
TAMARA MARTIN, and LESESTER
ROSIE MAE ABRAMS,COURTNEY
VASHAY ABRAMS, and JERMAINE
QBE INSURANCE CORPORATION,
) CIVIL ACTION NO. 12-0432-KD-C
These actions are now before the Court on the following motions: The motion to
consolidate filed by plaintiff/garnishee defendant QBE Insurance Corporation (doc. 7, Civil
Action No. 12-0432-KD-C; doc. 27, (Civil Action No. 12-0054-KD-C)) and the responses in
opposition (docs. 8, 29); and the petition to certify denial of the motion to remand for
interlocutory appeal filed by plaintiffs Rosie Mae Abrams, Courtney Vashay Abrams, and
Jermaine Abrams (doc. 24, Civil Action No. 12-0432-KD-C) and QBE’s response in opposition
(doc. 28, id). Upon consideration and for the reasons set forth herein, the motion to consolidate
is DENIED and the petition to certify an interlocutory appeal is DENIED.
QBE issued a Commercial General Liability policy to Whispering Pines Cemetery, LLC.
Queen Pettway and Carlis Eaton; Rosie May Abrams, Courtney Vashay Abrams, and Jermaine
Abrams; and Tamara Martin and Lesester Williams filed three separate lawsuits in the Circuit
Court of Mobile County, Alabama, against Whispering Pines. They allege in general that
Whispering Pines failed to keep and maintain adequate records of the locations where their
respective family members are buried. In this action, QBE seeks a declaratory judgment that it
does not owe any coverage or defense to Whispering Pines. Defendants answered and
counterclaimed for declaratory relief. QBE and Martin and Williams have filed their respective
motions for summary judgment
After the declaratory judgment action was filed, the Abrams family members obtained a
default judgment in the amount of $2,500,000.00 in their state court action against Whispering
Pines. They garnished QBE as Whispering Pines’ insurance carrier. QBE removed the
garnishment to this Court. QBE filed a motion to consolidate the garnishment action with the
declaratory judgment action. The Abrams family moved to remand the garnishment action. The
report and recommendation to deny the motion to remand was adopted as the opinion of the
Court. The Abrams family now petitions this Court to certify an interlocutory appeal of the
decision to deny the motion to remand. Pettway-Eaton’s and Martin-Williams’ state court
actions against Whispering Pines remain pending in the state court.
Motion to consolidate
Rule 42(a) of the Federal Rules of Civil Procedure codifies the district court's “inherent
managerial power to control the disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants.” Young v. City of Augusta, 59 F.3d 1160, 1168
(11th Cir.1995) (citation and internal quotations omitted).The Rule provides the district court
with authority to consolidate “[w]hen actions involving a common question of law or fact are
pending before the court.” Fed. R. Civ. P. 42(a). The authority under Rule 42(a) “is permissive
and vests a purely discretionary power in the district court.” Young v. City of Augusta, 59 F.3d
1160,1168 (11th Cir.1995) (citation omitted). In deciding whether to consolidate, the district
court must consider the risk of prejudice and confusion against the risk of inconsistent decisions
on the common factual and legal questions and the time, expense, and burden on the parties,
witnesses, and judicial resources should the actions proceed separately. Hendrix v. RaybestosManhattan, Inc., 776 F. 2d 1492, 1495 (11th Cir. 1985).
QBE filed its declaratory judgment action seeking a declaration that it owes no coverage
or defense to its insured Whispering Pines because of exclusions in the policy. QBE raises
substantially the same argument in defense of the garnishment. Although common questions of
fact and law may exist in these actions, the Court finds that there is little risk of prejudice,
confusion, or inconsistent decisions in that both actions are pending before this Court and neither
are set for jury trial. Additionally, discovery has concluded and summary judgments have been
filed in the declaratory judgment action while the garnishment action is now subject to a motion
for interlocutory appeal of the decision denying the motion to remand. Accordingly, the motion
to consolidate is DENIED.
Petition for interlocutory appeal
The Abrams family argues that there is a controlling question of law as to the decision to
deny the motion to remand. Specifically, the issue of whether “Erie deference require this Court
to honor and apply Alabama’s statutory law creating garnishment as ancillary process of a court
before which an action for damages is pending or in which a judgment has been entered, and
thereby recognize that the this Court has neither original nor removal jurisdiction.” (Doc. 24, p.1)
They assert that an immediate appeal would materially advance the ultimate termination of the
litigation. They also assert that there is substantial ground for difference of opinion as to whether
federal courts should defer to state substantive law when deciding whether an action may be
The Abrams family moves for interlocutory appeal pursuant to 28 U.S.C. § 1292(b)
which provides in relevant part as follows:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order involves a
controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation, he shall so state in
writing in such order.
28 U.S.C. § 1292(b).
“An order denying a motion to remand, ‘standing alone’, is ‘not final and [immediately]
appealable’ as of right.” Caterpillar, Inc. v. Lewis, 519 U.S. 61, 74, 117 S. Ct. 467 (1996)
(quoting Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 578, 74 S. Ct. 290, 293 (1954)). An
interlocutory appeal pursuant to 28 U.S.C. § 1292(b) which presents an issue to the appellate
court before final judgment is not preferred but instead is reserved for exceptional cases.
Caterpillar, Inc., 519 U.S. at 74. First, there must be a “controlling question of law”, which is
defined as a “question of the meaning of a statutory or constitutional provision, regulation, or
common law doctrine.” McFarlin v. Conseco Services, LLC, 381 F. 3d 1251, 1257-1258 (11th
Cir. 2004). The parties do not dispute that the question presented is a question of law which does
not require factual analysis.
Second, there must be “substantial ground for difference of opinion”. Id., at 1258. The
McFarlin court explained that “we have held that a question of law as to which we are in
‘complete and unequivocal’ agreement with the district court is not a proper one for § 1292(b)”
and thus not one which provides a “substantial ground for difference of opinion.” Id. In Webb v.
Zurich Ins. Co., 200 F.3d 759 (11th Cir. 2000), Webb was injured at a shopping mall. She sued
in state court and obtained a default judgment against the mall. Webb then garnished the mall’s
insurance carrier Zurich and it removed the garnishment action to federal court. Webb moved to
remand and the motion was denied. Zurich’s motion for summary judgment was granted and
Webb appealed. In its decision, the Eleventh Circuit stated as follows:
Webb filed a writ of garnishment against Zurich in Alabama state court.
Zurich removed the case to federal court alleging that the garnishment
proceeding were a separate and independent cause of action with diversity of
the parties. A magistrate judge correctly denied Webb’s motion to remand the
case. See Butler v. Polk, 592 F. 2d 1293 (5th Cir. 1979) (garnishment actions
brought post-judgment to collect a judgment are separate civil actions that are
Webb, 200 F. 3d at 760.
The Webb decision may not indicate “complete and unequivocal agreement with the
district court” because the issue of whether the magistrate judge erred in denying Webb’s motion
to remand was not the issue addressed on appeal. McFarlin, 381 F. 3d 1258. Nonetheless, the
Eleventh Circuit plainly stated that the “magistrate judge correctly denied Webb’s motion to
remand the case.” Webb, 200 F. 3d at 760.
Third, the decision on the question certified for appeal should “materially advance the
ultimate termination of the litigation”. McFarlin, 381 F. 3d 1259. The McFarlin court explained
that this “means that resolution of a controlling legal question would serve to avoid a trial or
otherwise substantially shorten the litigation.” Id. Since resolution of the controlling legal
question appears likely to result in an affirmance of the decision to deny the motion to remand,
see Webb, 200 F.3d at 760, resolution of that question would not serve to avoid a trial or
substantially shorten the litigation.1
The petitioners have not met their burden to establish the exceptional circumstances
necessary for this Court to certify an interlocutory appeal. Accordingly, the petition to certify
the denial of the motion to remand for interlocutory appeal is DENIED.
DONE and ORDERED this the 22nd day of February, 2013.
s / Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
Additionally, in Civil Action No. 12-0432-KD-C, the issue of coverage, i.e., whether
QBE owes Whispering Pines a duty to defend and indemnify, is the same issue to be determined
in Civil Action No. 12-0054-KD-C, the declaratory judgment action. Thus, litigation would not
be shortened by an interlocutory appeal.
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