Pennsylvania National Mutual Casualty Insurance Company v. Levitas et al

Filing 26

MEMORANDUM Signed by Chief Judge Catherine C. Blake on 1/3/2017. (cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PENNSYLVANIA NATIONAL MUTUAL
CASUTALTY INSURANCE COMPANY

v.

STEWART J. LEVITAS, ET AL.

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Civil No. CCB-16-2060

MEMORANDUM
Plaintiff Pennsylvania National Mutual Casualty Insurance Company (“Penn National”)
brought this action against Stewart J. Levitas (“Levitas”), State Real Estate, Inc. (“SRE,” and
collectively with “Levitas,” the “Levitas Parties”), Tajah Jeffers, and Tynae Jeffers, requesting a
declaratory judgment that Penn National’s responsibility for the final judgments awarded to the
Jeffers only extends to its pro-rata time on the risk.1
Pending before the court is the Jeffers’ motion to dismiss or stay. (Defs.’ Mot. Dismiss or
Stay, ECF No. 18). Penn National filed a response in opposition, (Pl.’s Resp. Opp’n to Mot.
Dismiss or Stay, ECF No. 22), to which the Jeffers replied. (Defs.’ Reply to Resp. to Mot., ECF
No. 25). The motions are fully briefed, and no oral argument is necessary. See Local Rule 105.6
(D. Md. 2016). For the reasons stated below, the motion to stay will be granted and the case
stayed pending resolution of Case No. 24-C-16-003198 in the Circuit Court for Baltimore City.
BACKGROUND
This case arises out of lead paint exposure at 2116 Hollins Street in Baltimore, Maryland
(the “Property”). (Compl. ¶¶ 11, 14, ECF No. 1). During the time period in question, Levitas

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The Levitas Parties failed to file timely answers and, as a result, the court entered their defaults on August 16,
2016. (Entry of Default as to Stewart J. Levitas, State Real Estate, Inc., ECF No. 19).

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owned and SRE managed the Property. (Id. ¶ 13). The Levitas Parties contracted with Penn
National to insure the Property, among others, under contract 2300007180 (“Insurance
Contract”), with coverage beginning November 27, 1991 and ending August 1, 1997. (Id. ¶ 9).
The Insurance Contract included commercial general liability coverage. (Id. ¶ 12).
Plaintiff Tajah Jeffers resided at the Property from March 17, 1994, until March 26, 1998.
(Id. ¶ 21). Tajah exhibited elevated blood-lead levels from September 24, 1993, up to her last
elevated blood-level test on June 2, 1998. Plaintiff Tynae Jeffers resided at the Property from the
date of her birth on November 8, 1996, until March 26, 1998. (Id. ¶ 22). Tynae exhibited
elevated blood-lead levels from May 14, 1997, up to her last elevated blood-lead level test on
November 25, 1998.
On August 23, 2013, the Jeffers plaintiffs filed a lawsuit against the Levitas Parties and
Penn National in the Circuit Court for Baltimore City, Case No. 24-C-12-005059 (the
“Underlying Case”), requesting damages as a result of their exposure to lead paint while residing
at the Property. (Compl., Ex. A, Tajah Jeffers, et al. v. Stewart Levitas et al. Compl., ECF No. 11). The Levitas Parties requested defense and indemnification from Penn National under the
Insurance Contract, which Penn National agreed to provide subject to a reservation of rights.
(Compl. ¶¶ 16–19). At the conclusion of the five-day trial, the jury returned a verdict in favor of
Tajah and Tynae Jeffers and final judgment was entered in the amount of $2,413,134.33 and
$1,650,619.33, respectively. (Compl. Ex. B, Notice of R. J., ECF No. 1-2; Compl. Ex. C, Cir.
Ct. of Baltimore City Or., ECF No. 1-3).
After an unsuccessful appeal, (Defs.’ Mot. Dismiss or Stay, Ex. C, Ct. App. Md. Or.,
ECF No. 18-4), the Levitas Parties have yet to satisfy the judgment in the Underlying Case.

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(Defs.’ Mot. Dismiss or Stay 4, ECF No. 18). The Jeffers sent a letter to Penn National on May
5, 2016, demanding satisfaction of the judgment. (Defs.’ Mot. Dismiss or Stay, Ex. D, Demand
Letter, ECF No. 18-5). On May 19, 2016, the Jeffers filed an action against Penn National in the
Circuit Court for Baltimore City, Case No. 24-C-16-003198, seeking the full amount of the
judgment entered in the Underlying Case. (Defs.’ Mot. Dismiss or Stay 4). Penn National
followed suit by filing this declaratory judgment action on June 13, 2016.
ANALYSIS
This court has diversity jurisdiction over the case, 28 U.S.C. § 1332(a), because the
parties are diverse and the amount in controversy exceeds $75,000. The suit is brought pursuant
to the Declaratory Judgment Act, 28 U.S.C. § 2201(a), as the sole relief sought in the complaint
is the declaration of the parties’ rights under the insurance contract. The central question
presented by defendants in their motions is whether the court should exercise its discretion to
issue a declaratory judgment.
The Declaratory Judgment Act is “an enabling Act, which confers a discretion on the
courts rather than an absolute right upon the litigant.” Wilton v. Seven Falls Co., 515 U.S. 277,
287 (1995) (quoting Public Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 241 (1952)).
Even where a declaratory judgment action “otherwise satisfies subject matter jurisdictional
prerequisites,” the district court “possess[es] discretion” in determining whether to entertain the
suit. Id. at 282; see also Brillhart v. Excess Ins. Co., 316 U.S. 491, 494 (1942). The Fourth
Circuit has long recognized “the discretion afforded to district courts in determining whether to
render declaratory relief.” Aetna Cas. & Sur. Co. v. Ind-Com Elec. Co., 139 F.3d 419, 421–22
(4th Cir. 1998). This discretion is especially “crucial when . . . a parallel or related proceeding is

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pending in state court.” New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290,
297 (4th Cir. 2005).
In determining whether to exercise jurisdiction in a declaratory judgment action, the
district court must “weigh considerations of federalism, efficiency, and comity.” United Capitol
Ins. Co. v. Kapiloff, 155 F.3d 488, 493 (4th Cir. 1998) (quoting Nautilus Ins. Co. v. Winchester
Homes, Inc., 15 F.3d 371, 376 (4th Cir. 1994)); see also New Wellington Fin. Corp., 416 F.3d at
297. The Fourth Circuit has articulated four factors for district courts to consider when
determining whether to abstain from exercising jurisdiction over a declaratory judgment action
during the pendency of a parallel state proceeding:
(1) [W]hether the state has a strong interest in having the issues decided in its courts; (2)
whether state courts could resolve the issues more efficiently than the federal courts; (3)
whether the presence of “overlapping issues of fact or law” might create unnecessary
“entanglement” between the state and federal courts; and (4) whether the federal action is
mere “procedural fencing,” in the sense that the action is merely the product of forumshopping.
Kapiloff, 155 F.3d at 493–94 (quoting Nautilus Ins., 15 F.3d at 377).
As to the first Kapiloff factor, the strength of the state interest in having the issues
decided in its courts is not compelling enough to weigh against federal jurisdiction. In order for
the state to have a strong interest in having the issues decided in its courts, the questions of state
law raised in the federal action must be “difficult” or “problematic.” Nautilus Ins., 15 F.3d at
378. It is not enough that the issues of law raised in the federal action are governed entirely by
substantive state law. Id. Where the federal case involves “the routine application of settled
principles of law to particular disputed facts,” the state’s interest is not “sufficiently compelling
to weigh against the exercise of federal jurisdiction.” Id.; see also Centennial Life Ins. Co. v.
Poston, 88 F.3d 255, 258 (4th Cir. 1996) (“[A]lthough only state law is at issue, the relevant state

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law is not problematic or difficult to apply, which weakens somewhat the state’s interest in
having these issues decided in state court.”). While the provisions of the insurance contract will
be interpreted using the substantive law of the State of Maryland, the issue is unlikely to turn on
a novel question of Maryland law.2 As a result, this factor does not favor either side.
The second Kapiloff factor, focusing on concerns of efficiency, also does not weigh
heavily on either side of abstention. The primary focus in evaluating efficiency concerns is
“whether the questions in controversy between the parties to the federal suit . . . can be better
settled in the proceeding pending in the state court.” Brillhart, 316 U.S. at 495. This requires
consideration as to “the scope of the pending state court proceeding,” including whether all
parties’ claims can be successfully adjudicated in state court and whether all necessary parties
have been joined in the state action. Id.; see also Poston, 88 F.3d at 258 (affirming the district
court’s decision to abstain because the state court action “contain[ed] a defendant and a number
of issues not present in the federal action”). As the parties in the two cases are identical, and the
lawsuits at a similar point in the procedural process, efficiency concerns do not weigh heavily
into the balance of Kapiloff factors.
There is a legitimate concern of entanglement, the third Kapiloff factor, weighing in favor
of abstention. Federal courts should decline “to entertain a declaratory action that could result in
entanglement between the two court systems.” Mitcheson v. Harris, 955 F.2d 235, 239 (4th Cir.
1992). Concerns about entanglement primarily turn on the preclusive effect the declaratory
judgment action will have on the state action. Id. at 239–40. Where both actions “raise[] the
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The Jeffers argue that, because the Maryland Court of Appeals previously granted certiorari in a case examining
allocation of surety liability, see Baltimore v. Utica Mut., 371 Md. 613, 810 A.2d 961 (2002) (granting petition for
certiorari), Maryland state law is not settled on this particular issue. (Defs.’ Reply to Resp. to Mot. 5). The appeal
was withdrawn before the Maryland Court of Appeals could rule on it, see Baltimore v. Utica Mut., 374 Md. 81, 821
A.2d 369 (2003). As no further developments have occurred in Maryland’s treatment of surety liability allocation in
the intervening years, it seems unlikely that the state court action will turn on a novel question of law.

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same core issues of law and fact,” and are both “aimed at determining the rights of parties under
[an] insurance policy,” there is a genuine possibility of entanglement between state and federal
courts. Kapiloff, 155 F.3d at 494.
Plaintiff argues that, because the factual issues were resolved by the jury in the
Underlying Case, there is no possibility of entanglement. The Jeffers’s state court request for
judgment against Penn National and Penn National’s federal declaratory action, however, turn on
the same question of law: what allocation of the judgment in the Underlying Case Penn National
is responsible for satisfying. Both actions are aimed at determining the rights and responsibilities
of the parties under the Insurance Contract. Accordingly, there is a genuine possibility of
entanglement that weighs in favor of federal abstention.
Finally, the fourth Kapiloff factor asks whether the federal action is mere procedural
fencing, which Penn National’s actions suggest. Procedural fencing occurs when “a party has
raced to federal court in an effort to get certain issues that are already pending before the state
courts resolved first in a more favorable forum.” Great American Ins. Co. v. Gross, 468 F.3d
199, 212 (4th Cir. 2006). Procedural fencing also can occur where the federal filing precedes the
state filing: the Fourth Circuit has counseled against placing “undue significance on the race to
the courthouse door” in parallel proceedings in state court, particularly when the federal plaintiff
had constructive notice of the defendant’s intent to sue. Poston, 88 F.3d at 258.
The Jeffers’s state action, filed on May 19, 2016, preceded Penn National’s June 13,
2016, filing of the federal court action.3 Additionally, the May 5, 2016, demand letter provided

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The plaintiff points to an ongoing dispute in the state court case over alleged improper service to bolster their
argument for lack of procedural fencing, contending that they were unaware of the state court action because of
service defects. (Pl.’s Resp. Opp’n to Mot. Dismiss or Stay 17, n. 1). This issue appears to have been resolved
through a joint stipulation, (Pl.’s Resp. Opp’n to Mot. Dismiss or Stay, Ex. C, J. Stip. and Consent Mot., ECF No.

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Penn National constructive notice of the Jeffers’s intent to sue. While the evidence of procedural
fencing is not strong, it weights slightly in favor of federal abstention.
CONCLUSION
Given the genuine possibility of entanglement and the suggestion of procedural fencing,
the balance of Kapiloff factors weighs in favor of federal abstention. The Supreme Court has
advised that a stay is a better course of action than a dismissal because “it assures that the federal
action can proceed without risk of a time bar if the state case, for any reason, fails to resolve the
matter in controversy.” Wilton, 515 U.S. at 288 n. 2. Accordingly, the motion to stay will be
granted and the case will be stayed pending resolution of the state court litigation.
A separate order follows.

January 3, 2017
Date

_________/S/_______________
Catherine C. Blake
United States District Judge

22-3), and an amended complaint, (Defs.’ Reply to Resp. to Mot., Ex. B, Amended Compl., ECF No. 25-2). Service
defects aside, Penn National still had constructive notice of the Jeffers’s intent to sue via the demand letter, which it
acknowledges receiving prior to filing the federal action. (Pl.’s Resp. Opp’n to Mot. Dismiss or Stay 17, n. 1).

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