Rules 12(b) and 12(h) . Guar. 7) whether the federal court is being called on to construe a state judicial decree involving the same parties and entered by the court before whom the parallel state suit between the same parties is pending. The court recognized that the insurer was defending, but the coverage issue would not be litigated in the underlying case, so declaratory relief was appropriate. Co. v. Block, 744 S.W.2d 940, 943 (Tex. Ins. 1978). After the federal court ruled in favor of Nautilus, holding that it did not owe a duty to defend, Nautilus filed a motion for recoupment of its defense costs. 1995) (whether trademark violation occurred during policy period). Co. v. Louisiana Farm Bureau Federation, 996 F.2d 774, 778 (5th Cir. Ins. App.El Paso 2000, no pet. Ins. Since the duty to defend is based solely on the live pleadings, a declaratory judgment is arguably based only on the pleading in effect, and is not determinative as to any subsequent amended or supplemental pleading. Federated Mut. Co., 579 S.W.2d 523 (Tex. Thus, an insured can seek an affirmative finding of coverage, or an insurer can seek a negative determination that coverage does not exist. SUPPLEMENTAL RELIEF. Co. v. Plummer, 13 F.Supp. CSAT Versus Denton - Original Answer and Counterclaim - TML The Federal act is broader in scope. Exclusive news, data and analytics for financial market professionals. Auto. ERISA/fiduciary-related claims, commercial general liability (CGL), admiralty and maritime, toxic/mass . 1997), the Supreme Court reaffirmed the complaint allegation rule, with dicta suggesting that the exception for extrinsic evidence would be narrowed. at 332. As a matter of law, the duty to defend is broader than the duty to indemnify, and an insurer's duty to defend is triggered as long as there is a "reasonable possibility" that the insurer may have to indemnify the insured under the policy. Co. v. Delaney, 386 S.W.2d 648 (Tex. These rules govern the procedure for obtaining a declaratory judgment under 28 U.S.C. Civ. 1. 1, eff. 1996) (insurer not estopped from litigating employment issue). Sec. Wade, 827 S.W.2d at 451. On the other hand, where the insured seeks a declaration that the insurer owes indemnity, before resolution of the underlying case, the opinion may be considered advisory, and declaratory relief may, indeed, be premature. Texas Air Control Bd., 852 S.W.2d at 444. 1993). 1, eff. App.Dallas 1998, pet. 6 0 obj Id. Understanding Declaratory Judgment Actions | Larkin Farrell endobj Cigna Lloyds Ins. The controversy must necessarily be of a justiciable nature, thus excluding an advisory decree upon a hypothetical state of facts. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 325, 56 S.Ct. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139 (Tex. Still, there are often strategic benefits to filing early. . The industry leader for online information for tax, accounting and finance professionals. The Law Dictionary is not a . App.Austin 1998, pet. 1271 (N.D. Tex. Genl Ins. 2 0 obj APP. E.g., Cluett v. Medical Protective Co., 829 S.W.2d 822, 826 (Tex. Although the trial court vacated the default judgment, on appeal, the Second Department reversed the lower court's order and reinstated the judgment against the insureds. Sept. 1, 1985. 4 0 obj You Can't Always Get What You Want (if what you want is a declaratory In Wade, the insurer argued that it was not challenging the veracity of the facts alleged, but had a defense independent of the pleadings.
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