NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN THE REPORTER.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Supreme Court of Delaware.

PRIME INSURANCE COMPANY, Interested Party Below, Appellant,

v.

Tori Lynn CORDOVA, Plaintiff Below, Appellee.

No. 22, 2024

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Submitted: January 29, 2024

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Decided: February 9, 2024

Court Below–Superior Court of the State of Delaware, C.A. No. N22C-04-086

Before SEITZ, Chief Justice; LEGROW and GRIFFITHS, Justices.

ORDER

N. Christopher Griffiths, Justice

*1 After consideration of the notice of appeal from an interlocutory order, the supplemental notice of appeal, their exhibits, and the Superior Court’s December 18, 2023 bench ruling, it appears to the Court that:

(1) On March 17, 2021, Joel Kiage was operating a tractor trailer owned by Emma Logistics, LLC (together with Kiage, the “Named Defendants”) when he disregarded a red traffic signal and struck Tori Lynn Cordova’s vehicle, injuring Cordova. On April 12, 2022, Cordova sued the Named Defendants in the Superior Court. On December 22, 2023, the Superior Court entered judgment by default against the Named Defendants after they failed to respond to Cordova’s discovery requests or otherwise participate in the litigation.

(2) A different vehicle owned by Emma Logistics (not the vehicle driven by Kiage on March 17, 2021) is insured by a policy (the “Policy”) issued by Prime Insurance Company (“Prime”). The Policy includes an MCS–90 endorsement, which provides that if the Policy does not cover a claim, Prime could, under specified circumstances, nevertheless be liable to third parties for their losses. After the Superior Court entered default judgment against the Named Defendants, Prime, citing its potential pecuniary interest in the litigation, moved to intervene under Superior Court Civil Rule 24. Following a hearing on December 18, 2023, the Superior Court denied Prime’s motion because: (i) Prime was unwilling to confirm that the Policy’s MCS–90 endorsement did, in fact, apply to the accident; and (ii) Prime’s application was untimely under Rule 24 (the “Order”).

(3) On January 2, 2024, Prime asked the Superior Court to certify an interlocutory appeal of the Order under Supreme Court Rule 42. Cordova opposed the application. On January 22, 2024, the Superior Court denied the application because a timely filed application must be filed “within 10 days of the entry of the order from which the appeal is sought,” and “[s]trict compliance with Rule 42 is required by the Supreme Court.”¹

(4) We agree with the Superior Court’s denial of the application for certification. The application, which was filed on January 2, 2024, was untimely because it was filed more than ten days after the Superior Court issued its December 18, 2023 order,² and counsel’s claim that communication with his client was delayed because of “the end of the year festivities” did not establish good cause for the untimely filing. The Court also finds that Prime’s application did not satisfy the substantive criteria for the certification of an interlocutory appeal under Rule 42.

*2 NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is REFUSED.

All Citations

Slip Copy, 2024 WL 513706 (Table)

Footnotes

1. Cordova v. Kiage, 2024 WL 229904, at *1 (Del. Super. Jan. 22, 2024) (citations omitted).  
2. Supr. Ct. R. 42(c)(i) (“Such application shall be served and filed within 10 days of the entry of the order from which the appeal is sought or such longer time as the trial court, in its discretion, may order for good cause shown.”); Supr. Ct. R. 42(a) (“All time periods under this rule should be calculated under Supreme Court Rule 11.”).  

End of Document

© 2024 Thomson Reuters. No claim to original U.S. Government Works.  

United States District Court, E.D. Wisconsin.

NEW YORK MARINE AND GENERAL INSURANCE COMPANY, Plaintiff,

v.

ST FREIGHT LLC, Defendant.

Case No. 23-C-1268

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Signed January 30, 2024

Attorneys and Law Firms

Amber C. Coisman, James J. Hickey, Kennedys CMK LLP, Chicago, IL, for Plaintiff.

Justin F. Wallace, Wallace Law Inc., Sheboygan, WI, for Defendant.

DECISION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

William C. Griesbach, United States District Judge

*1 Plaintiff New York Marine and General Insurance Company filed this declaratory judgment action against Defendant ST Freight LLC, seeking a determination of its rights and obligations under insurance policies it issued to ST Freight. This matter comes before the court on ST Freight’s motion to dismiss or, alternatively, to stay. For the following reasons, ST Freight’s motion to dismiss will be granted.

BACKGROUND

ST Freight is a Wisconsin limited liability company located in Manitowoc, Wisconsin, and operates as a freight broker for transporting the products of others by truck throughout the United States. New York Marine issued a package insurance policy to ST Freight containing a commercial general liability coverage part, an umbrella policy, and a commercial auto policy. ST Freight has been named as one of several defendants in a lawsuit filed on May 27, 2022, in the First Judicial District of New Mexico in connection with a September 1, 2021, accident arising from one of the loads ST Freight brokered. The accident occurred on a New Mexico highway and resulted in two fatalities.

ST Freight sought coverage under the policies issued by New York Marine in connection with the claims asserted against it in the New Mexico action. In response, New York Marine advised ST Freight in writing that it owed no obligation under the policies it issued to defend or indemnify ST Freight in the action. New York Marine subsequently filed this declaratory action on September 25, 2023, seeking a judicial declaration that, under the insurance policies, New York Marine owes no duty to defend or indemnify ST Freight in connection with the claims asserted against it in the New Mexico action. On October 31, 2023, ST Freight filed a third-party complaint in the New Mexico action against New York Marine, seeking a ruling regarding New York Marine’s coverage obligations under the policies. New York Marine filed a motion to dismiss in the New Mexico action, asserting that it does not owe a duty to defend or indemnify ST Freight. See Dkt. No. 19-1. On November 9, 2023, ST Freight filed the instant motion to dismiss or, alternatively, to stay.

ANALYSIS

“Under what is known as the Wilton/Brillhart abstention doctrine, district courts possess significant discretion to dismiss or stay claims seeking declaratory relief, even though they have subject matter jurisdiction over such claims.” R.R. Street & Co., Inc. v. Vulcan Materials Co., 569 F.3d 711, 713 (7th Cir. 2009); see also Wilton v. Seven Falls Co., 515 U.S. 277 (1995); Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942). “This discretion arises from the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202 itself, which provides that district courts ‘may declare the rights and other legal relations of any interested party seeking such declaration.’ ” Envision Healthcare, Inc. v. PreferredOne Ins. Co., 604 F.3d 983, 986 (7th Cir. 2010). District courts have “substantial discretion in deciding whether to declare the rights of litigants and may, in the sound exercise of their discretion, stay or dismiss an action seeking a declaratory judgment in favor of an ongoing state court case.” Id. (citing Brillhart, 316 U.S. at 494–95; Wilton, 515 U.S. at 288). The federal court should consider, among other factors, “whether the declaratory suit presents a question distinct from the issues raised in the state court proceeding, whether the parties to the two actions are identical, whether going forward with the declaratory action will serve a useful purpose in clarifying the legal obligations and relationships among the parties or will merely amount to duplicative or piecemeal litigation, and whether comparable relief is available to the plaintiff seeking a declaratory judgment in another forum or at another time.” Nationwide Ins. v. Zavalis, 52 F.3d 689, 692 (7th Cir. 1995) (citations omitted).

*2 Under the Zavalis framework, dismissal of this declaratory judgment action is appropriate. In this case, the third-party action in the First Judicial District of New Mexico involves the same parties as the instant action—ST Freight and New York Marine—as well as the same legal question—whether New York Marine owes ST Freight a duty to defend and indemnify it for any loss in the New Mexico action. See Envision Healthcare, 604 F.3d at 986 (upholding district court’s decision to abstain when “the third-party suit in Minnesota involve[d] the same parties as the federal case” and “the same precise legal question [would] be answered in both suits:” whether the insurance broker owes the insurer a duty to indemnify it for any loss incurred in the state court lawsuit). Allowing the declaratory judgment action to proceed further will not serve a useful purpose in clarifying the parties’ legal obligations and relationships. Instead, it will be duplicative of litigation that is already taking place in state court. Importantly, the New Mexico action, unlike this one, includes the plaintiff estates in the underlying action, both of whom are interested, if not indispensable parties, to the claim asserted in this case. For this reason, complete relief is clearly available to New York Marine in the New Mexico action. It is less clear that such relief would be available here. Accordingly, the court finds it appropriate to exercise its discretion under the Wilton/Brillhart doctrine and abstain from proceeding further with this declaratory judgment action.

CONCLUSION

For these reasons, ST Freight’s motion to dismiss (Dkt. No. 10) is GRANTED. This declaratory judgment action is dismissed. The Clerk is directed to enter judgment accordingly.

SO ORDERED at Green Bay, Wisconsin this 30th day of January, 2024.

All Citations

End of Document

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