United States District Court, N.D. Alabama, Middle Division
NATIONWIDE MUTUAL INSRUANCE COMPANY, NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, NATIONWIDE GENERAL INSURANCE COMPANY, Plaintiffs,
DAVID J. BARROW, ANN BARROW, and A.B., a minor, by and through her next friend and parent, J.B., Defendant.
MEMORANDUM OPINION AND ORDER
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
Nationwide Mutual Insurance Company, Nationwide Mutual Fire
Insurance Company, and Nationwide General Insurance Company
(“Nationwide”) seek a declaration under various
insurance policies that they have no duty to defend or
indemnify Defendant David J. Barrow in an underlying state
court action filed by Defendant A.B., a minor, by and through
her next friend and parent, J.B.
before the court is A.B.’s partial motion to dismiss.
(Doc. 9). Pursuant to Federal Rule of Civil Procedure
12(b)(1), A.B. asks the court to dismiss without prejudice
Nationwide’s duty to indemnify claim because the claim
is not ripe for adjudication.
explained below, the court does not have subject matter
jurisdiction over Nationwide’s unripe declaratory
judgment claim regarding its duty to indemnify. Therefore,
the court GRANTS the motion.
minor, by and through her next friend and parent, J.B., sued
Mr. Barrow in the Circuit Court of Marshall County, Alabama.
(Doc. 1; see also A.B., a minor, by and through her next
friend and parent, J.B. v. David Jacobs Barrow,
50-CV-18-900065). That action is ongoing, and A.B. has not
obtained a judgment against Mr. Barrow in the state court
proceeding. (Doc. 1 at ¶¶ 16–17; Doc. 11 at
filed suit in this court, seeking a declaratory judgment as
to whether they are contractually obligated to defend and
indemnify Mr. Barrow in the state court action under
automobile, homeowners, dwelling, and umbrella insurance
policies. (Doc. 1 at ¶ 40).
argues that the court lacks subject matter jurisdiction over
Nationwide’s duty to indemnify claim because the state
court has not entered judgment against Mr. Barrow, and the
claim is not ripe. (Doc. 9 at 2–3). Nationwide concedes
that its duty to indemnify claim is not ripe, but it asks the
court to stay consideration of the indemnity issue until
either: (1) this court resolves Nationwide’s duty to
defend, or (2) the state court determines that Mr. Barrow is
liable to A.B. (Doc. 11 at 4–5).
court agrees with the parties that Nationwide’s duty to
indemnify claim is not ripe. Allstate Ins. Co. v.
Employers Liability Assur. Corp., 445 F.2d 1278, 1281
(5th Cir. 1971) (“[N]o action for declaratory relief
will lie to establish an insurer’s liability in a
policy clause contest such as the one at bar until a judgment
has been rendered against the insured since, until such
judgment comes into being, the liabilities are contingent and
may never materialize.”); Allstate Indem. Co. v.
Lewis, 985 F.Supp. 1341, 1349 (M.D. Ala. 1997)
(“[T]he duty to indemnify is not ripe for adjudication
until the insured is in fact held liable in the underlying
suit.”) (quotations omitted).
question then is whether the court must dismiss the
unripe duty to indemnify claim or whether it may
stay the claim. District courts facing similar situations
have reached different results. Compare, e.g., State Auto
Ins. Co. v. Mays Auto Serv., Inc., 2018 WL 1583102, at
*2 (N.D. Ala. Apr. 2, 2018) (court had no authority to stay
unripe duty to indemnify claim because it lacked subject
matter jurisdiction over the claim); Penn-Star Ins. Co.
v. Swords, 2017 WL 4180889, at *8–9 (N.D. Ala.
Sept. 21, 2017) (same) with, e.g., Employers Mut. Cas.
Co. v. Evans, 76 F.Supp.2d 1257, 1262 (N.D. Ala. 1999)
(retaining jurisdiction over and staying unripe duty to
indemnify claim); Penn. Nat. Mut. Cas. Ins. Co. v.
King, 2012 WL 280656, at *5 (S.D. Ala. Jan. 30, 2012)
(same). And there appears to be no Eleventh Circuit precedent
directly on point.
“[t]he determination of ripeness ‘goes to whether
the district court ha[s] subject matter jurisdiction to hear
the case.’” Digital Props, Inc. v. City of
Plantation, 121 F.3d 586, 591 (11th Cir. 1997) (quoting
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d
1570, 1573 n. 7 (11th Cir. 1989). And, “once a federal
court determines that it is without subject matter
jurisdiction, the court is powerless to continue.”
Univ. of So. Ala. v. Am. Tobacco Co., 168 F.3d 405,
410 (11th Cir. 1999). Accordingly, the court agrees with the
district courts that have determined that a stay of an unripe
claim over which the court lacks jurisdiction is
the court is powerless to act with respect to
Nationwide’s unripe declaratory judgment claim
regarding its duty to indemnify, the ...