Selective Ins. Co. v. Michigan Mut. Liability Ins. Co.
| Decision Date | 31 October 1967 |
| Parties | SELECTIVE INSURANCE CO., a foreign corporation, Appellant, v. MICHIGAN MUTUAL LIABILITY INSURANCE, CO., a foreign corporation, Respondent, DeYoung & Bagin Construction Company et al., Defendants. |
| Court | Wisconsin Supreme Court |
Arnold, Murray & O'Neill, Milwaukee, for appellant.
Kluwin, Dunphy, Hankin & Hayes, Milwaukee, for respondent.
This action is brought by plaintiff insurance company for declaratory judgment under sec. 269.56 Stats. 1
The action was commenced in Wisconsin because both plaintiff and defendant insurance companies are licensed to do business in Wisconsin.
In essence, plaintiff seeks a declaratory judgment determining that the coverage afforded by its policy to DeYoung & Bagin Construction Company is secondary and applies only after the limits of the policy issued by defendant insurance company have been exhausted; while defendant insurance company contends that since the injuries received by Mahon (employee of defendant insurance company's insured) were caused by the negligent acts of Grewe (employee of plaintiff insurance company's insured), the policy of plaintiff insurance company's is primary.
Defendant demurred to the complaint upon the grounds that it appeared on the face thereof that the court has no jurisdiction and also that there is a defect of party-defendants by the omission of Mahon as a necessary party.
Defendant's demurrer was sustained on both grounds and the court entered judgment dismissing plaintiff's complaint. Plaintiff moved to vacate and set aside the judgment and for leave to serve an amended complaint. The motions were denied and plaintiff appeals from the judgment and order denying the motions.
Miller v. Currie (1932) 208 Wis. 199, 204, 242 N.W. 570 set forth and established certain requirements of a proper case for declaratory judgment relief, and among those are:
'(1) The exercise of the jurisdiction is discretionary with the court, and, where no consequential relief is sought, it will be exercised with great care, extreme caution, and only where there are special circumstances demanding it.
(4) A declaration will not be made in a matter where the interest of the plaintiff is merely contingent upon the happening of some event.'
In the case at bar, any potential liability of plaintiff insurer is conditioned and contingent upon a final determination in the pending litigation in Michigan that defendant Grewe or defendant DeYoung & Bagin Construction Company were negligent in causing the injuries sustained by Mahon. In the Michigan action both defendants have filed separate answers denying their negligence. Any determination by a Wisconsin court by way of declaratory judgment as to coverage rights between the two insurance companies would be of no consequence in the event the pending Michigan litigation absolved Grewe and DeYoung & Bagin Construction Company of negligence in causing Mahon's injuries.
Courts will not, under the provisions of sec. 269.56 Stats. declare rights until they have become fixed under an established state of facts, and will not determine future rights in anticipation of an event that may never happen. Heller v. Shapiro (1932) 208 Wis. 310, 242 N.W. 174, 87 A.L.R. 1201; State ex rel. La Follette v. Dammann (1936) 220 Wis. 17, 23, 264 N.W. 627, 103 A.L.R. 1089; Rose Manor Realty Co. v. City of Milwaukee (1956) 272 Wis. 339, 75 N.W.2d 274.
Therefore, any consideration of declaratory relief is premature and the circuit court properly exercised its discretion in refusing to enter a judgment. It is well settled that the granting or denying of relief in declaratory judgment actions is a matter within the sound discretion of the trial court. In this case there has been no showing that the trial court abused its discretion. Aetna Insurance Co. v. Transamerica Insurance Co. (D.C.1967) 262 F.Supp. 731; Travelers Indemnity Co. v. Standard Accident Insurance Co. (7 Cir. 1964) 329 F.2d 329.
Michigan is a state which has not adopted the Uniform Declaratory Judgment Act. Wisconsin has adopted the Uniform Act. Michigan has chosen to adopt, by general court rule, a Declaratory Judgment Act (Rule 521 of the General Court Rules of 1963, Mich.Stats.Annot.) which rule is derived in general form from the Federal Declaratory Judgment Act, Title 28 U.S.C.A. secs. 2201, 2202.
The plaintiff contends that the trial court erred in refusing to permit ...
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