United States District Court, N.D. Alabama, Southern Division
K. KALLON UNITED STATES DISTRICT JUDGE
Surplus Insurance Company filed this action pursuant to 28
U.S.C. §§ 1332 (a) and 2201, seeking a declaration
that it has no duty to defend or indemnify Centremarc
Construction Company, LLC and Garcia Building Company, LLC
for claims asserted against them in an underlying case
Domingo Valles filed in state court. Doc. 1. Centremarc and
Garcia Building both assert counterclaims against AXIS,
seeking, among other things, a declaration that AXIS has a
duty to defend them in the underlying lawsuit. Docs. 7 at
6-11; 46 at 16-27.
action is presently before the court on Valles' and
Garcia Building's motions to dismiss, docs. 14; 32, which
Centremarc joins, doc. 39. For the reasons explained below,
the court finds that (1) AXIS's claims regarding its duty
to indemnify are not ripe, (2) AXIS's claims regarding
its duty to defend do not meet the amount in controversy
requirement, and (3) Centremarc's and Garcia
Building's counterclaims do not provide an independent
basis for this court to exercise jurisdiction over this case.
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(1) authorizes a motion to
dismiss based on the defense that the court lacks
subject-matter jurisdiction. “Attacks on subject matter
jurisdiction under Rule 12(b)(1) come in two forms,
‘facial' and ‘factual' attacks.”
Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th
Cir. 2003) (citation omitted). Facial attacks to jurisdiction
are based on the allegations in the complaint, which the
court must take as true in deciding whether to grant the
motion. Id. “Factual attacks challenge subject
matter jurisdiction in fact, irrespective of the pleading,
” and the court may consider extrinsic evidence when
deciding a factual attack to jurisdiction. Id. In
such a case, “the trial court is free to weigh the
evidence and satisfy itself as to the existence of its power
to hear the case.” Id. at 925 (quoting
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
issued a commercial general liability policy to Garcia
Building that names Centremarc as an additional insured, with
effective dates of coverage from April 11, 2015 to April 11,
2016. Doc. 1 at 4, 8. With certain exceptions and exclusions,
the policy requires AXIS to indemnify Garcia Building and
Centremarc if they are liable for damages due to bodily
injury, as defined by the policy, and to defend Garcia
Building and Centremarc for any suit seeking such damages.
Id. at 5-7. In October 2015, Valles filed the
underlying lawsuit against Garcia Building and Centremarc for
injuries he sustained in an accident at a construction site.
Id. at 11-12. AXIS is defending Garcia Building and
Centremarc in Valles's lawsuit pursuant to a reservation
of rights. Id. at 15. AXIS now asks the court to
declare that it has no duty to indemnify or defend Garcia
Building and Centremarc. Id. at 20-21. For their
part, Centremarc and Garcia Building seek declarations that
AXIS has a duty to defend and indemnify them. Docs. 7 at 7-8;
46 at 17-18. Centremarc and Garcia Building also assert
breach of contract and tort counterclaims against AXIS for
the alleged failure to provide coverage for the underlying
action. Docs. 7 at 8-11; 46 at 18-27.
AXIS's duty to indemnify claims
defendants first argue that the duty to indemnify claims are
not ripe. Docs. 14 at 3-8; 32 at 2-3; 39. Indeed, because the
underlying action is still pending,  there has been no
determination regarding Garcia Building's and
Centremarc's liability in the underlying action, and, as
such, the duty to indemnify claims are not ripe for
consideration. See Allstate Ins. Co. v. Employers Liab.
Assurance Corp., 445 F.2d 1278, 1281 (5th Cir. 1971)
(citation omitted) (“[N]o action for declaratory relief
will lie to establish an insurer's liability in a policy
clause contest  until a judgment has been rendered against
the insured since, until such judgment comes into being, the
liabilities are contingent and may never
materialize.”); Hartford Cas. Ins. Co. v. Merchants
& Farmers Bank, 928 So.2d 1006, 1013 (Ala. 2005)
(per curiam). Therefore, the court lacks subject matter
jurisdiction over these claims. See Cheffer v. Reno,
55 F.3d 1517, 1523 (11th Cir. 1995) (citation omitted).
AXIS's duty to defend claims
Building and Centremarc argue next that the court does not
have jurisdiction over the duty to defend claims because the
amount in controversy is less than the jurisdictional
threshold. Docs. 32 at 4-5; 39. The amount in controversy in
a declaratory judgment action is “the monetary value of
the object of the litigation from the plaintiff's
perspective.” Cohen v. Office Depot, Inc., 204
F.3d 1069, 1077 (11th Cir. 2000). In this case, it is the
cost AXIS could incur to defend Centremarc and Garcia
the court in resolving this issue, AXIS submitted an
affidavit regarding its defense costs, doc. 44-1, which,
unfortunately for AXIS, establishes that the potential
defense costs fall short of the jurisdictional
threshold. AXIS attests that it employed separate
defense counsel for both Garcia Building and Centremarc, and
that it “would have incurred in excess of $75, 000.00
defending both Garcia Building and Centremarc through 
trial” in the underlying case. Doc. 44-1 at
¶¶ 4-5. It is settled law by now that a plaintiff
may not aggregate claims against multiple defendants to
satisfy the amount in controversy requirement. Walter v.
Ne. R.R. Co., 147 U.S. 370, 374 (1893); Jewell v.
Grain Dealers Mutual Ins. Co., 290 F.2d 11, 13 (5th Cir.
1961) (citations omitted). Thus, in determining whether the amount
in controversy requirement is met, the court must consider
the costs AXIS expects to incur in continuing to defend
Garcia Building and Centremarc separately, not collectively.
According to AXIS, its anticipated costs for defending the
underlying matter through trial in the underlying case are in
excess of $37, 500 per defendant. See doc. 44-1 at
¶ 5. AXIS further attests that if an appeal is filed, it
would incur an additional $15, 000 to $20, 000 per defendant.
Id. at ¶ 5. Accordingly, AXIS's total
potential cost to continue defending Garcia Building and
Centremarc in the underlying action is between $52, 500 and
$57, 500 per defendant, which is well under the $75, 000
amount in controversy requirement. Therefore, because AXIS
has failed to come forward with sufficient facts to show that
its claims satisfy the amount in controversy requirement, the
court does not have diversity jurisdiction over AXIS's
duty to defend claims.
Centremarc's and Garcia ...