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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

10 11 CAPITOL SPECIALTY INSURANCE Case No. 3:18-cv-707-L-WVG

CORPORATION,

12 ORDER GRANTING MOTION Plaintiff, TO STAY 13 v. 14

AMTRUST INTERNATIONAL

15 UNDERWRITERS LIMITED, et al., 16 Defendants; _____________________________________ 17

AND RELATED COUNTERCLAIMS

18 AND CROSS-CLAIMS.

19 20 Pending before the Court in this insurance action is a motion to stay filed by 21 Defendants and Cross-Defendants McAvoy Construction, Inc. and Russell McAvoy 22 (collectively "McAvoy"). Plaintiff/Counter-Defendant Capitol Specialty Insurance 23 Corporation ("Capitol") and Defendant/Counterclaimant/Cross-Claimant AmTrust 24 International Underwriters Limited ("AmTrust," collectively "Insurers") each filed 25 an opposition. McAvoy replied. For the reasons which follow, McAvoy's motion 26 to stay is granted. 27 / / / / / 28 1 In May 2013, McAvoy was retained by the Ellen Joy Marks Trust ("Marks") 2 as a general contractor on a custom residential project located in San Diego. The 3 project was to pass final inspection and be substantially completed around 4 September 2014. Due to alleged faulty work, the final inspection did not take place 5 until November 2015. In March 2016, Ms. Marks moved into the residence 6 although the project was still not completed. In addition to prior defective work 7 which had not been remedied, after moving in, Ms. Marks discovered new defects. 8 She also found that major and minor work remained to be done. On August 11, 9 2016, she sent a notice of breach and a demand to cure to McAvoy. On November 10 14, 2016, she filed a construction defect lawsuit in state court captioned Marks v. 11 McAvoy Construction, Inc. et al., San Diego County Superior Court case no. 37- 12 2016-00039955-CU-BC-CTL, alleging breach of contract, breach of the implied 13 covenant of good faith and fair dealing, building code violations, negligence and 14 accounting (the "Underlying Action"). She produced a 23-page list of defects 15 which she attributed to McAvoy and its numerous subcontractors. 16 McAvoy tendered the defense of the Underlying Action to its Insurers. 17 AmTrust had issued commercial general liability policies to McAvoy with effective 18 dates of June 30, 2014 to June 30, 2016. Capitol had issued a commercial general 19 liability policy with effective dates of May 6, 2016 to May 6, 2017. Capitol agreed 20 to defend McAvoy with a reservation of rights. 21 Shortly thereafter, Capitol filed the instant action against McAvoy and 22 AmTrust seeking a declaratory judgment of no duty to defend and no duty to 23 indemnify McAvoy, declaratory judgment that AmTrust had a duty to defend, as 24 well as equitable contribution and indemnity from AmTrust. After this action was 25 filed, AmTrust agreed to defend McAvoy in the Underlying Action and reimburse 26 Capitol for an equitable share of the defense costs, both with a reservation of rights. 27 In this action, AmTrust cross-claimed against McAvoy seeking a declaratory 28 1 judgment of no duty to defend and no duty to indemnify and reimbursement of 2 defense costs. AmTrust also counterclaimed against Capitol seeking a declaratory 3 judgment of no duty to defend and no duty to indemnify as well as equitable 4 contribution. The Court has diversity jurisdiction over all claims pursuant to 28 5 U.S.C. §1332. 6 McAvoy filed the pending motion requesting the Court to stay this action 7 pending the resolution of the Underlying Action. The motion is based primarily on 8 the overlap in factual issues and duplicative discovery. Both Insurers oppose. 9 Although they concede that liability and coverage actions always entail a certain 10 amount of factual overlap, they argue that this action should not be stayed. At the 11 very least, they claim, they should be allowed to file summary judgment motions on 12 the duty to defend issues, which, according to them, can be resolved completely 13 separate and apart from the Underlying Action. 14 The Declaratory Judgment Act, 28 U.S.C. §2201, confers on federal courts 15 unique and substantial discretion in deciding whether to declare the 16 rights of litigants. On its face, the statute provides that a court "may declare the rights and other legal relations of any interested party 17 seeking such declaration” . . .. The statute's textual commitment to 18 discretion, and the breadth of leeway . . . distinguish the declaratory judgment context from other areas of the law in which concepts of 19 discretion surface. [It is] an enabling Act, which confers a discretion 20 on the courts rather than an absolute right upon the litigant.

21 Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995) (emphasis in original, quoting 22 28 U.S.C. §2201(a); other citations and internal quotation marks omitted). 23 "Consistent with the nonobligatory nature of the remedy, a district court is 24 authorized . . . to stay or dismiss an action seeking declaratory judgment." Id. at 25 288. As requested here, a stay is often preferable to dismissal "because it assures 26 that the federal action can proceed without risk of a time bar if the state case, for 27 any reason, fails to resolve the matter in controversy." Id. n.2. When parallel state 28 1 court proceedings are pending, "presenting an opportunity for ventilation of the 2 same state law issues," the district court may stay the case in federal court to allow 3 for completion of the state court case. Id. at 290 (discussing Brillhart v. Excess Ins. 4 Co. of Am., 316 U.S. 491 (1942)). "[F]ederal courts should generally decline to 5 entertain reactive declaratory actions." R.R. Street & Co. Inc. v. Transport Ins. Co., 6 656 F.3d 966, 976 (9th Cir. 2011). Three factors first articulated in Brillhart bear 7 upon the decision whether to stay (or dismiss) a declaratory relief action: avoiding 8 needless determination of state law issues; discouraging forum shopping; and 9 avoiding duplicative litigation. Id. at 975. 10 The pending action presents insurance coverage and contribution issues 11 while the Underlying Action presents liability issues. All claims are asserted under 12 California law. Neither the parties named, nor the legal claims alleged in the 13 Underlying Action and in this coverage action are identical. The Insurers latch on 14 to this and claim that at least the duty to defend issues are independent of the issues 15 raised in the Underlying Action. In their opposition briefs both Insurers point to 16 their respective definitions of occurrence and pre-existing occurrence exclusions, 17 arguing that the timing of the alleged damage is central to their duty to defend 18 claims while irrelevant to any claims raised in the Underlying Action. 19 The Insurers' opposition is based on an oversimplified view of construction 20 defect litigation, especially in light of the 23-page list of defects produced by 21 Marks, which attributes the defects not only to McAvoy but also to its numerous 22 subcontractors. It is beyond question that the Underlying Action will entail 23 litigation of each alleged defect. It seems patently unnecessary to cover the same 24 ground in this action, even if, as Insurers contend, all they are interested in in this 25 action is the timing of each defect. 26 Moreover, upon review of Capitol's complaint and AmTrust's cross-claim, it 27 is apparent that the Insurers intend to litigate their duties to defend on additional 28 1 grounds than merely the timing of each occurrence, which grounds they intend to 2 present "based on the . . . evidence, documents, testimony, expert reports, and other 3 information developed in the Underlying Action." (See, e.g., doc. no. 1 at 10; see 4 also id. at 10-11; doc. no. 8 at 11-12.) The actions are therefore intertwined at the 5 point of factual issues with direct bearing on the declaratory relief claims presented 6 in this Court. 7 Finally, “[t]he differences in factual and legal issues between the state and 8 federal court proceedings are not dispositive.” Polido v. State Farm Mut. Auto Ins. 9 Co., 110 F.3d 1418, 1423 (9th Cir. 1997), overruled on other grounds in Gov't 10 Employees Ins. Co. v. Dizol, 133 F.3d 1220 (9th Cir. 1998). This is because the 11 Insurers "could have presented the issues [they] brought in federal court in a 12 separate action to the same court that will decide the underlying tort action." 13 Polido, 110 F.3d at 1423. The dispositive question is "whether there was a 14 procedural vehicle available to the insurance company in state court to resolve the 15 issues raised in the action filed in federal court." Id. The Insurers have presented 16 no reason, and the Court is aware of none, why they could not have raised the same 17 coverage issues in a declaratory relief action filed in state court. The issues 18 presented here could be "ventilated" in the Underlying Action. 19 / / / / / 20 21 22

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28 | For the foregoing reasons, the Brillhart factors favor staying this action 2 || pending the conclusion of the Underlying Action.! McAvoy's motion to stay is 3 || granted as follows: 4 1. This action is stayed pending the conclusion of Marks v. McAvoy > | Construction, Inc. et al., San Diego County Superior Court case no. 37-2016- © | 00039955-CU-BC-CTL ("Underlying Action"). 7 2. No later than ninety (90) days of the filing of this Order or entry of 8 || final judgment in the Underlying Action, whichever first occurs, Capitol Specialty ? || Insurance Corporation and AmTrust International Underwriters Limited shall 10 jointly file a status report advising this Court of the status of the Underlying Action. 11 | Failure timely to comply with this provision may result in the dismissal of this 12 I action, including the counterclaims and cross-claims. 1S IT IS SO ORDERED. 14 || Dated: October 31, 2019 15 16 H . James Lorenz 7 United States District Judge 18 19 20 21 22 Although the Court may also consider other factors, "the three Brillhart 73 factors remain the philosophic touchstone." Dizol, 133 F.3d at 1225. The other factors are “whether the declaratory action will settle all aspects of the controversy; whether the declaratory action will serve a useful purpose in clarifying the legal relations at issue; whether the declaratory action is being sought merely for the purposes of procedural fencing or to obtain a ‘res judicata’ advantage; or whether 25 + the use of a declaratory action will result in entanglement between the federal and 56, || State court systems. In addition, the district court might also consider the 6 convenience of the parties, and the availability and relative convenience of other 57 || temedies.” Principal Fife Ins. Co. v. Robinson, 394 F.3d 665, 672 (9" Cir. 2005) (quoting Dizol, 133 F.3d at 1225 n.5). None of the foregoing factors counsel ng || against granting McAvoy's motion.

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