Empire Fire & Marine Insurance Company v. Gross, 1:11-cv-03598

Empire filed a declaratory judgment action seeking coverage determinations for a fly ash delivery mishap involving Gross and Selective.
The May 15, 2009 incident involved Gross’s delivery to Superior Concrete that allegedly hooked to the wrong intake pipe, damaging a concrete batch.
Superior claimed $485,000 in structural repairs at two construction sites; Superior’s customers did not sue Superior, and Superior did not sue Gross.
Gross notified Selective and Empire of the claim; both insurers denied coverage; Gross did not reimburse Superior for losses.
The parties dispute whether either insurance policy covers an indemnification claim that Superior could bring against Gross in the future; the underlying claim is time-barred against Superior’s customers.
Empire sought a declaratory judgment; the court analyzed whether to exercise jurisdiction and ultimately denied the cross-motions for summary judgment and dismissed claims without prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exists an actual controversy under § 2201?	Empire argues there remains a potential indemnification dispute between Superior and Gross, preserving a live controversy.	Gross/Selective contend there is no live controversy given the statute of limitations and lack of current or imminent claim.	There is an actual controversy, but it is so slight that jurisdiction should be declined.
Whether the court should exercise declaratory judgment jurisdiction in light of discretion factors?	Empire contends declaratory relief could clarify insurance responsibilities.	Gross/Selective argue proceeding would be inefficient with minimal relief and risk advisory opinions.	The court should not exercise jurisdiction; the case is dismissed without prejudice.

Nautilus Ins. Co. v. Winchester Homes, Inc., 15 F.3d 371 (4th Cir. 1994) (declaratory judgment scope and 'actual controversy' under § 2201)
Penn-America Ins. Co. v. Coffey, 368 F.3d 409 (4th Cir. 2004) (limits on declaratory relief and discretionary denial of jurisdiction)
Wilton v. Seven Falls Co., 515 U.S. 277 (1995) (declaratory judgments and discretionary considerations)
Heritage Harbour, L.L.C. v. John J. Reynolds, Inc., 795 A.2d 806 (Md. App. 2002) (limitations on accrual and indemnification timing in related actions)
Preiser v. Newkirk, 422 U.S. 395 (1975) (mootness analysis and substantial controversy standard)
Aetna Cas. & Sur. Co. v. Ind-Com Elec. Co., 139 F.3d 419 (4th Cir. 1998) (factors for determining whether to exercise jurisdiction over declaratory actions)
Maryland Casualty Co. v. Pac. Coal & Oil Co., 312 U.S. 270 (1941) (origin of the 'actual controversy' concept in declaratory actions)