American Motorists Insurance Company v. Mack, Civ. A. No. 37416.

• Decision Date: 29 December 1965
• Docket Number: Civ. A. No. 37416.
• Citation: 248 F. Supp. 1016
• Parties: AMERICAN MOTORISTS INSURANCE COMPANY v. Beulah B. MACK v. Norman LUBER.
• Court: U.S. District Court — Eastern District of Pennsylvania

248 F. Supp. 1016

AMERICAN MOTORISTS INSURANCE COMPANY v. Beulah B. MACK v. Norman LUBER.

Civ. A. No. 37416.

United States District Court E. D. Pennsylvania.

December 29, 1965.

Norman Paul Harvey, Philadelphia, Pa., for plaintiff.

Irwin Paul, Philadelphia, Pa., for defendant Luber.

BODY, District Judge.

Before us is a Motion by Defendant, Norman Luber, to Dismiss Plaintiff's Petition for Declaratory Judgment.¹

On June 5, 1964 Norman Luber instituted a civil action against Beulah B. Mack in the Court of Common Pleas, Philadelphia County,² alleging that he was struck by bullets or pellets which had been negligently and carelessly discharged from a rifle on November 30, 1963 while lawfully on the premises of said Beulah B. Mack.

Prior to November 30, 1963 plaintiff herein issued to Beulah B. Mack a policy of insurance which, inter alia, insured her against liability for damage which she, the insured, "shall become legally obligated to pay * * * because of bodily injury."

However, the insurance company avers in its petition for relief filed with this Court under the Federal Declaratory Judgment Act, 28 U.S.C.A. § 2201, that Beulah B. Mack is not entitled to coverage under said policy because:

(a) The shooting of Luber by Mack was intentional and that Exclusion (C) in the policy specifically excluded from coverage, liability for bodily injury caused intentionally by the insured.

(b) Although the wounding of Luber and its immediate consequences were known to Mack at the time of the occurrence, no report was made to plaintiff by Mack or anyone acting in her behalf until January 17, 1964 when telephone notice was given. Written notice according to the terms and conditions of the said policy was not given until January 20, 1964. Mack, therefore, failed to comply with Condition 3 of the policy which required written notice of the occurrence as soon as practicable.

(c) Mack failed to comply with Condition 5 of the policy which required the assistance and cooperation of the insured by making conflicting and inconsistent statements concerning the occurrence and by failing to cooperate in obtaining certain evidence.

In its prayer, plaintiff requested the Court to declare:

(a) That plaintiff has no obligation whatsoever under the policy of insurance issued to Mack to provide coverage for her in any action brought by Luber against her for his injuries resulting from the wounds inflicted on November 30, 1963;

(b) That it has no obligation to provide a defense for Mack in the action filed by Luber or to pay any portion of any judgment or settlement obtained by Luber against her.

The principal issue presented by defendant's Motion to Dismiss is whether the Court, as a matter of discretion, should decline to exercise jurisdiction in this petition for declaratory judgment brought by an insurer against the insured and an injured third party.

Although this matter is before the Court because of diversity of citizenship, it is clear that federal law determines whether a federal court can and may properly render a declaratory judgment. 6 Moore's Federal Practice, 2d Ed. p. 3014

And while it is true that federal courts should not render advisory opinions, Nationwide Mutual Ins. Co. v. Fidelity & Casualty Co. of N. Y., 286 F.2d 91 (3rd Cir. 1961), a district court may entertain a declaratory judgment action when the disposition might settle the issues in full. Maryland Casualty Co. v. Consumers Finance Service, 101 F.2d 514 (3rd Cir. 1938) That is the situation here.

In the Maryland Casualty case, supra, decided in this Circuit, Judge Maris noted that the pending state court action would not necessarily settle the point in issue in the declaratory action— the insurance company's liability under the policy. We reach the same conclusion with respect to the present action since a jury verdict in the state court may not settle the question of whether the injury was intentional or unintentional or the issue of whether Mack complied with the other terms and conditions of said policy. A declaration on the merits by the district court, however, might well determine that the insurer has no duty whatsoever to defend. On the other hand, if it is found that the insurance company must defend Mack in the state court action, that action could then proceed against her with the plaintiff herein acting on her behalf.

In any event the conclusion is reached that the plaintiff, American Motorist Insurance Company, has presented a real and justiciable...