Safeco Insurance Company of America v. Weissman et al
ORDER on Motion to Dismiss. Order denying 22 Motion to Dismiss. Signed by Judge Robert N. Scola, Jr on 2/8/2018. (kpe)
United States District Court
Southern District of Florida
Safeco Insurance Company of
Andrew Weissman and others,
) Civil Action No. 17-62032-Civ-Scola
Order on Motion to Dismiss
Plaintiff Safeco Insurance Company of America (“Safeco”) seeks a
declaratory judgment that it has no duty to defend or indemnify the
Defendants in a lawsuit filed in state court. (Compl., ECF No. 1.) Defendant
Andrew Weissman has moved to dismiss the Complaint, arguing that the case
is not ripe for the Court’s review. (Mot., ECF No. 22). For the reasons set forth
below, the Court denies the motion (ECF No. 22).
1. Legal Standard
Upon a request for a declaratory judgment, a federal court “may declare
the rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought.” 28 U.S.C.
§ 2201(a). A declaratory judgment is not an advisory opinion. MedImmune, Inc.
v. Genentech, Inc., 549 U.S. 118, 126 (2007). Rather, a declaratory judgment
resolves an actual case or controversy, as contemplated in Article III of the
United States Constitution. Id. A plaintiff has standing to bring a claim if the
following three elements are met: (1) the plaintiff has suffered an injury in fact;
(2) there is a causal connection between the injury and the conduct complained
of; and (3) it is likely that the injury will be redressed by a favorable decision.
Lujan v. Def.’s of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). An
injury in fact is “an invasion of a legally protected interest which is (1) concrete
and particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Lujan, 504 U.S. at 560 (internal quotations and citations
omitted). With respect to declaratory actions, “the proper test of when an action
for declaratory judgment presents a justiciable controversy is ‘whether the facts
alleged, under all the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a declaratory judgment.’”
Arkema, Inc. v. Honeywell, Int’l, Inc., No. 2012-1308, 2013 WL 425576, at *4
(Fed. Cir. Feb. 5, 2013) (quoting MedImmune, 549 U.S. at 127).
Although Weissman brings his motion under Federal Rule of Civil
Procedure 12(b)(6), the Court will construe his motion as being brought under
Rule 12(b)(1) since he is asking the Court to find that the Complaint does not
present a justiciable controversy.
Weissman argues that the Plaintiff essentially seeks an advisory opinion
that it has no duty to indemnify Weissman because the underlying state court
case is still pending and liability has not yet been determined. However, Safeco
notes that, in addition to seeking a declaratory judgment that it has no duty to
indemnify Weissman, it also seeks a declaratory judgment that it has no duty
to defend Weissmsan in the underlying suit. In Atain Specialty Ins. Co. v.
Kenneth Russell Roof Contracting, LLC, No. 16-23627, 2017 WL 2363013 (S.D.
Fla. May 30, 2017) (Scola, J.), this Court held that where a plaintiff seeks a
declaratory judgment both that it does not have a duty to defend and does not
have a duty to indemnify, a court may appropriately exercise jurisdiction over
the duty-to-defend claim prior to the resolution of the underlying case. Thus,
the Court declined to dismiss the case, but held that consideration of the dutyto-indemnify issue was not appropriate “until the earlier of (a) final disposition
of the underlying state-court action; or (b) a ruling on the duty to defend, at
which time the Court will entertain any motion that the parties may wish to file
concerning the duty-to-indemnify claim.” Id. at *2.
Weissman’s motion to dismiss only addresses the duty-to-indemnify
claim, yet argues that the Complaint should be dismissed in its entirety.
Despite the fact that Safeco’s response notes that it also seeks a declaration
that it does not have a duty to defend and cites to Atain, Weissman’s reply
continues to assert that dismissal of the Complaint in its entirety is warranted
because Safeco has “acknowledged that the issue of duty to indemnify is not
ripe.” (Reply 1, ECF No. 27.) The only mention of the duty-to-defend issue in
the reply is an assertion that the Complaint “improperly lumps together the
issues of duty to defend and duty to indemnify subjecting each count to
dismissal.” (Id. at 3.) However, Weissman cites to no authority that mandates
that the two issues must be brought in separate counts.
Safeco’s duty-to-defend claim presents a justiciable controversy, and
provides appropriate grounds for the Court to exercise its jurisdiction under 28
U.S.C. § 2201(a). However, as in Atain, the Court will not consider the duty-toindemnify issue until the earlier of (a) final disposition of the underlying statecourt action; or (b) a ruling on the duty to defend, at which time the Court will
entertain any motion that the parties may wish to file concerning the duty to
Accordingly, the Court denies the Defendants’ motion to dismiss (ECF
Done and ordered in chambers, at Miami, Florida, on February 8, 2018.
Robert N. Scola, Jr.
United States District Judge
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