Aetna Cas. and Sur. Co. of Hartford, Connecticut v. Kerr-McGee Chemical Corp., KERR-MCGEE

Citation875 F.2d 1252
Decision Date13 July 1989
Docket NumberNo. 88-2610,KERR-MCGEE,88-2610
PartiesAETNA CASUALTY AND SURETY COMPANY OF HARTFORD, CONNECTICUT, Plaintiff-Appellant, v.CHEMICAL CORPORATION, American Potash & Chemical Corporation and Kerr-McGee Refining Corporation, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Daniel G. Litchfield, Burditt Bowles Radzius & Ruberry, Chartered, Chicago, Ill., for plaintiff-appellant.

Richard A. Meserve, Covington & Burling, Washington, D.C., for defendants-appellees.

Before CUDAHY, EASTERBROOK and RIPPLE, Circuit Judges.

CUDAHY, Circuit Judge.

Plaintiff Aetna Casualty and Surety Company ("Aetna"), appeals the district court's dismissal of its declaratory judgment action against the defendants, Kerr-McGee Chemical Corporation, Kerr-McGee Refining Corporation and American Potash and Chemical Corporation. We affirm.


The defendants are either wholly owned subsidiaries or predecessors in interest of Kerr-McGee Corporation ("Kerr-McGee"). Since the mid-1960's, Kerr-McGee has been involved, either on its own behalf or through its subsidiaries, in manufacturing, processing and refining activities which have resulted in the production of significant amounts of allegedly hazardous waste materials. In connection with the production and disposal of these wastes, Kerr-McGee has been sued by individuals and government entities for bodily injury and property damage, and by the United States for cleanup costs under the Superfund law. In addition, various state and federal regulatory agencies, including the Environmental Protection Agency and the Nuclear Regulatory Commission, are currently conducting investigations of Kerr-McGee's production, handling and disposal of the waste materials it generated.

Much of the litigation and regulatory activity involves the operation, by American Potash and Kerr-McGee Chemical, of a facility in West Chicago, Illinois, which processed radioactive materials. However, Illinois is not the only center of activity. The Superfund litigation is currently pending in Oklahoma, and involves Kerr-McGee Refining's alleged dumping of hazardous wastes at a site located near Criner, Oklahoma. Kerr-McGee Chemical is also the defendant in three suits in California, brought by former Kerr-McGee Chemical employees and their families, or residents living near Kerr-McGee Chemical facilities, which allege bodily injury and property damage arising out of exposure to hazardous or toxic chemicals.

Over the past twenty-five years, Kerr-McGee purchased comprehensive general and excess liability insurance policies from a variety of insurance carriers, including Aetna, which provided coverage to the parent and its subsidiaries for specified bodily injury and property damage claims. American Potash, which operated the West Chicago facility prior to the corporation's purchase by Kerr-McGee, also had primary and excess liability policies with Aetna and others. On October 27, 1987, Kerr-McGee sued twelve insurance companies on behalf of itself, its subsidiaries and American Potash in Oklahoma state court. Kerr-McGee alleged that the defendant insurers had breached their contracts with Kerr-McGee or its subsidiaries by refusing to indemnify Kerr-McGee or its subsidiaries for the liability they had incurred, and by refusing to defend the pending judicial and administrative actions. Kerr-McGee prayed for money damages for its defense and liability costs to date, as well as a declaration that the insurers had an obligation to defend and indemnify parent and subsidiaries in the future. 1

Aetna attempted to remove the Oklahoma action to federal court. Although there was not complete diversity of citizenship between Kerr-McGee and all defendants, Aetna argued that its controversy with Kerr-McGee was "separate and independent" from Kerr-McGee's dispute with the other insurers, and therefore, under 28 U.S.C. section 1441(c), removal was proper despite the lack of complete diversity. The Oklahoma district court rejected this argument, and remanded the case to state court.

[P]laintiff's complaint is that it did not receive what it paid for ..., namely, a package of protection out of many policies that overlap and interlock temporally .... The overlap in this case is like that of the shingles on a roof or the scales of a fish. The policies have relationships with the ones ahead, behind, and (as to primary and excess coverage) above and below. Plaintiff ... bottoms its case on the total impact of the collective conduct of defendants.... [E]ach defendant's liability, if plaintiff proves its case, is but a facet, and not "independent".

Kerr-McGee Corp. v. Aetna Casualty & Sur. Co., Nos. CIV 87-2378-A, -2380-A, -2355-A & -2364-A, mem. op. at 3-4 (W.D.Okla. Feb. 22, 1988) (emphasis added).

Aetna subsequently filed a motion to dismiss the Oklahoma state court action, alleging, among other grounds, that Kerr-McGee, the parent, was not the real party in interest, and could not sue "on behalf of" its subsidiaries for injuries which they had suffered. This motion was denied.

Having failed to extricate itself from the the Oklahoma state-court litigation, Aetna filed its declaratory judgment complaint in the district court on April 1, 1988. The complaint does not name Kerr-McGee (the parent company and sole plaintiff in Oklahoma) as a defendant. Instead, the complaint names as defendants only Kerr-McGee Chemical, Kerr-McGee Refining and American Potash. Aetna seeks a declaration that it is not liable to the defendants for any financial loss they may suffer due to the judicial and administrative proceedings discussed above. Although the parties involved in the Oklahoma and Illinois actions are not identical, the district court dismissed Aetna's complaint, finding that there was "another action pending between the same parties for the same cause" and that "[t]he question[s] which Aetna seeks to have resolved here necessarily will be resolved in the Oklahoma litigation." Aetna Casualty & Sur. Co. v. Kerr-McGee Chemical Corp., No. 88 C 2826, mem. op. at 2, 1988 WL 77055 (N.D.Ill. July 15, 1988). Aetna has appealed the district court's dismissal.


The district court dismissed the suit under the authority of Illinois Revised Statutes chapter 110, section 2-619, which provides:

(a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds[:]

* * *

(3) That there is another action pending between the same parties for the same cause.

This court has not previously decided whether section 2-619(a)(3) applies in diversity cases in federal court under the Rules of Decision Act, 28 U.S.C. section 1652, and Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The court referred to the Erie question in Commonwealth Edison Co. v. Gulf Oil Co., 541 F.2d 1263, 1271-72 (7th Cir.1976), but did not decide the issue since the plaintiff in that case invoked the court's federal question jurisdiction, and therefore the Erie doctrine was not applicable in any event. The district courts in this circuit have generally applied section 2-619(a)(3) without extended discussion of the Erie issue, relying on Judge Will's detailed analysis in Seaboard Finance Co. v. Davis, 276 F.Supp. 507, 512-17 (N.D.Ill.1967). See, e.g., Schiller v. Packaging Store, Inc., 690 F.Supp. 711, 713 n. 5 (N.D.Ill.1988); Ball v. Deere & Co., 684 F.Supp. 1455, 1456 (C.D.Ill.1988); General Elec. Co. v. Lofton, 675 F.Supp. 1107, 1108 (N.D.Ill.1987); Granite Constr. Co. v. Metropolitan Sanitary Dist., No. 82 C 6536, mem. op. at 7-8, 1986 WL 13719 (N.D.Ill. Nov. 19, 1986); 2 Byer Museum of Arts v. North River Ins. Co., 622 F.Supp. 1381, 1383-84 (N.D.Ill.1985). Since Aetna does not challenge the district court's application of section 2-619(a)(3) in this appeal, we will apply the Illinois statute without deciding whether it is properly controlling in federal diversity litigation. Cf. Corrugated Paper Prods., Inc. v. Longview Fibre Co., 868 F.2d 908, 910 n. 2 (7th Cir.1989) (choice of law issue waived where appellant does not challenge district court's choice of governing law); Checkers, Simon & Rosner v. The Lurie Corp., 864 F.2d 1338, 1345 (7th Cir.1988) (same).

Where the criteria of section 2-619(a)(3) are met, dismissal is not automatic; instead, the trial court must make a discretionary decision whether or not to dismiss. Kellerman v. MCI Telecommunications Corp., 112 Ill.2d 428, 447, 98 Ill.Dec. 24, 32, 493 N.E.2d 1045, 1053, cert. denied, 479 U.S. 949, 107 S.Ct. 434, 93 L.Ed.2d 384 (1986); A.E. Staley Mfg. Co. v. Swift & Co., 84 Ill.2d 245, 252-53, 50 Ill.Dec. 156, 160, 419 N.E.2d 23, 27 (1980). The trial court's dismissal of an action under section 2-619(a)(3) may be upset on appeal only if the dismissal constituted an abuse of discretion. Illinois Cent. Gulf R.R. Co. v. Goad, 168 Ill.App.3d 541, 544, 119 Ill.Dec. 183, 185, 522 N.E.2d 845, 847 (4th Dist.1988); Golden Rule Ins. Co. v. Robeza, 151 Ill.App.3d 801, 804, 806, 104 Ill.Dec. 410, 413, 414, 502 N.E.2d 1070, 1073, 1074 (5th Dist.1986); cf. Day v. Union Mines, Inc., 862 F.2d 652, 654 (7th Cir.1988) (district court's decision whether to stay action under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), reviewed only for abuse of discretion).

Aetna argues that its suit should not have been dismissed for two reasons: first, the Oklahoma state court proceeding and the federal declaratory judgment action were not suits "between the same parties"; and second, the case had a "legitimate and substantial relation to Illinois" and, under A.E. Staley Manufacturing Co. v. Swift & Co., 84 Ill.2d 245, 50 Ill.Dec. 156, 419 N.E.2d 23 (1980), section 2-619(a)(3) should not be employed to dismiss actions...

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