Virginia Lawyers Weekly VA Lawyers Weekly
Where an insurer removed a suit seeking a declaration regarding uninsured motorist coverage for a fatal accident, the suit was remanded to the circuit court. Resolution of this suit had the potential to offer an improper advisory opinion in the pending wrongful death suit.
Background
This declaratory judgment action relates to a 2016 vehicle accident in Pennsylvania resulting in the death of William P. Golladay III. Rebecca Golladay, the executrix of decedent’s estate, sued the driver of the vehicle that killed William P. Golladay III. Nationwide Property & Casualty Insurance Company answered the suit on behalf of Doe and began conducting discovery.
Rebecca Golladay then filed this action in the circuit court, seeking a declaration as to whether Nationwide, which she alleges is decedent’s insurer, must afford him uninsured motorist insurance coverage. Nationwide then removed the case to this court. Pending before the court is plaintiff’s motion to remand to the circuit court.
Analysis
In Trustgard Ins. Co. v. Collins, 942 F.3d 195 (4th Cir. 2019), the Fourth Circuit noted its uncertainty as to whether it would have subject matter jurisdiction over a suit brought to decide whether an insurance contract “requires the insurer to pay any judgment … that might result from the ongoing state-court proceedings.”
In this case, there is no state-court judgment against the John Doe motorist in the parallel wrongful death action. Therefore, the court risks issuing an advisory opinion if it opines on Nationwide’s coverage obligations. District courts have followed the reasoning of Trustgard and declined to exercise jurisdiction instead of risking the issuance of an advisory opinion under the Declaratory Judgment Act.
At the hearing and in its brief, Nationwide attempted to distinguish Trustgard, arguing that it involved an unusual blanket coverage policy that depended on liability for the underlying tort, and thus that its jurisdictional reasoning could be limited to that case. But the Trustgard court’s commentary on the issue of advisory opinions in insurance coverage declaratory judgment actions was broad in nature and not limited to the nuances of that specific policy, except to the extent it concerned a duty to indemnify.
The Fourth Circuit explicitly “distinguished duty-to-defend cases that addressed who was required to pay the costs of defending a suit prior to judgment” and stated that “suits about the duty to indemnify—unlike the duty-to-defend suits—would ordinarily be advisory when the insured’s liability remains undetermined.” Those conclusions are as applicable here as they were in Trustgard, and they require remand.
Plaintiff’s motion to remand granted.
Golladay v. Nationwide Property and Casualty Insurance Company, Case No. 5:22-cv-00030, Feb. 1, 2023. WDVA at Harrisonburg (Dillon). VLW 023-3-036. 6 pp.
