CINCINNATI INSURANCE COMPANY, Appellant/Cross-Appellee v. ALL PLUMBING, INC. Service, Parts, Installation, et al., Appellees/Cross-Appellants.
Nos. 14-7140, 14-7151.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 9, 2015. Decided Feb. 5, 2016.
153
CONTEMPORARY EUROPEAN HISTORY 453, 455 (Cambridge University Press 2004). Indeed, “[t]he last six months of the war left Hungary devastated,” resulting in the destruction of “40 percent of Hungary‘s national wealth,” damage to 90 per cent of Hungary‘s industrial plants and loss of 40 per cent of Hungary‘s rail network and 70 per cent of Hungary‘s railway vehicles. LÁSZLÓ BORHI, HUNGARY IN THE COLD WAR, 1945–1956: BETWEEN THE UNITED STATES AND THE SOVIET UNION 53–54 (Central European University Press 2004). The task of rebuilding Hungarian society fell to the Soviet Union, which, as the district court noted, had little interest in complying with the terms of a treaty that did not further the interest of the communist state. See Simon v. Republic of Hung., 37 F.Supp.3d 381, 391 (D.D.C.2014).
No group felt the effects of this upheaval more than the Jewish survivors of Hitler‘s death camps, the majority of whom “believed it their duty to return to their countries of origin and try to rebuild their communities the best they could.” LOWE, supra at 191. Given the rampant anti-Semitism that plagued the former Nazi-occupied areas, “[t]he historiography of this period in Europe is littered with stories of Jews trying, and failing, to get back what was rightfully theirs.” Id. at 198. “[T]he property of Jews was dispersed” far and wide “through a combination of confiscation, plunder, theft and resale.” Id. Indeed, “[i]n larger cities like Budapest,” this state of affairs “often rendered it impossible for returning Jews to trace their property.” Id. at 198-99. And even in smaller, rural towns where property could be traced, the Hungarian courts often “ruled that horses and other livestock plundered from Jewish farms should remain with those who had ‘saved’ them.” Id. at 200.
Much ink has been spilled on the general upheaval in post-World War II Europe2 and the chaos that befell the Soviet-occupied nations in particular.3 Against this backdrop, Hungary asks this Court to trust that it in fact intended to restore expropriated property to its rightful owners within six months, or to pay them fair compensation, in “all cases.” Treaty of Peace, U.S.-Hung., art. 27, Feb. 10, 1947, T.I.A.S. No. 1651 (emphasis added). In Hungary‘s view, the 1947 Peace Treaty represents the exclusive means by which Hungarian Jewish victims of the Holocaust could obtain recovery for property seized from them. It revises history and defies reality to claim that Hungary had any intent or ability to effectuate Article 27 of the 1947 Peace Treaty. Accordingly, it would be unthinkable to conclude that the 1947 Peace Treaty fits within the FSIA‘s Treaty Exception.
Laura Anne Foggan argued the cause for appellant/cross-appellee Cincinnati Insurance Company. With her on the briefs was Thomas S. Garrett.
David M. Oppenheim argued the cause for appellee/cross-appellant FDS Restaurant, Inc. With him on the briefs were Jeffrey A. Berman and Stephen H. Ring.
Before: ROGERS, TATEL and WILKINS, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge:
The court dismisses the appeals for lack of a final decision as to all requested relief.
I.
Cincinnati issued a commercial insurance policy to All Plumbing that provides for primary liability coverage and, in the event that coverage is exhausted, excess liability coverage. The primary liability provision covers “bodily injury” and “property damage” subject to a $1,000 deductible under Part A, and “personal and advertising injury” under Part B. The excess liability provision follows the terms and conditions of the primary liability provision. The policy covers claims arising from March 3, 2006 to March 3, 2007.
Two class actions were filed against All Plumbing in the D.C. Superior Court for allegedly sending over 10,000 unsolicited faxes to businesses located in Washington, D.C. and Northern Virginia, in violation of the TCPA. The TCPA prohibits sending unsolicited advertisements by fax machine, except in limited circumstances, see
On May 21, 2012, Cincinnati filed a complaint in the federal district court for a declaratory judgment that it owes no duty to defend All Plumbing from the TCPA claims brought by FDS or to indemnify those claims should FDS prevail in the underlying lawsuit. FDS was named in the complaint. Cincinnati asserted, in part, that the excess liability provision does not cover the TCPA claims because they do not arise from an “occurrence” and also are not “personal and advertising injury.” It also asserted that the claims come within policy exclusions, including the “expected or intended” exclusion, the “knowing violation of the rights of another” exclusion, and the “underlying insurance” exclusion. Finally, it asserted that the insured had substantially and materially breached the policy‘s notice provisions. See Compl. ¶¶ 32–39.
No party responded to the complaint, prompting the district court to enter a default against FDS and All Plumbing. Upon vacatur of the default at FDS‘s request, FDS filed a counterclaim for a de-claratory
The district court granted summary judgment to FDS on the ground that Cincinnati had not renewed its reservation of rights in the FDS action. See Cincinnati Ins. Co. v. All Plumbing, Inc. (Cincinnati I), 983 F.Supp.2d 162, 165–69 (D.D.C.2013). Cincinnati moved for reconsideration, in part arguing that its reservation of rights in the Love the Beer case should also apply to the FDS action. It also sought clarification that even if a failure to reserve its rights precluded asserting coverage defenses under the primary liability provision, it should still be permitted to invoke that provision‘s deductible under Part A and assert any coverage defenses under the excess liability provision, because any duty to defend under that provision does not arise until the limits of the primary liability provision are exhausted. The district court denied reconsideration but clarified that Cincinnati is not precluded from asserting either the $1,000 deductible or any coverage defenses under the excess liability provision. Cincinnati Ins. Co. v. All Plumbing, Inc. (Cincinnati II), 64 F.Supp.3d 69, 75–81 (D.D.C.2014). The district court also denied Cincinnati‘s request for a status conference and clarification regarding the finality of the district court‘s decisions, ruling that its decisions granting summary judgment and clarification were final and appealable.
Cincinnati filed a notice of appeal, and FDS filed a cross-appeal. Thereafter, Cincinnati moved to dismiss the appeals for lack of appellate jurisdiction because the district court left unresolved some relief sought in its declaratory judgment complaint.
II.
This court has jurisdiction over “final decisions” of the district court.
the [district] court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.
See also Blue, 764 F.3d at 15; Robinson-Reeder, 571 F.3d at 1337; Turtle v. Inst. for Res. Mgmt., 475 F.2d 925, 925–26 (D.C.Cir.1973). Because the district court did not invoke Rule 54(b), its decisions granting summary judgment and granting clarification are final only if they adjudicated all of the rights and liabilities at issue in the declaratory judgment action.
Throughout the declaratory judgment proceedings Cincinnati has argued that neither the primary nor excess liability provisions could be read to cover the TCPA claims in the FDS lawsuit. See Compl. ¶¶ 25–39; Cincinnati‘s Br. in Supp. Summ. J. 19–36. For example, Cincinnati argued that the TCPA claims are not covered because they do not arise from “personal and advertising injury” as that phrase is defined in the policy. The district court initially granted summary judgment to FDS, upon concluding it had no reason to address such arguments, because Cincinnati‘s failure to “properly reserve its rights ... precludes Cincinnati Insurance from asserting any defenses to coverage of the FDS action.” Cincinnati I, 983 F.Supp.2d at 169. It later clarified, however, that this decision applied only to the primary liability provision of the policy. See Cincinnati II, 64 F.Supp.3d at 80–81. The district court‘s decisions preclude Cincinnati from claiming that the primary liability provision does not cover the TCPA claims in the FDS lawsuit. See Cincinnati I, 983 F.Supp.2d at 165. But neither decision resolves fully Cincinnati‘s asserted defenses under the excess liability provision. The district court ruled that Cincinnati may assert coverage defenses under this provision, see Cincinnati II, 64 F.Supp.3d at 80–81, without addressing the merits of the defenses that Cincinnati asserted in its complaint and thus without deciding whether Cincinnati can disclaim coverage of the TCPA claims under the excess liability provision. Failing to address those issues in Cincinnati‘s complaint renders the district court‘s decisions akin to grants of partial summary judgment, to FDS and to Cincinnati, that resolve only the threshold issue of the defenses Cincinnati waived by failing to reserve its rights, and such interlocutory decisions are not final under
FDS offers, assuming that there are unresolved issues relating to coverage under the excess liability provision, that this court has jurisdiction because it may never be necessary to resolve the undecided issues. FDS first suggests that any argument under the excess liability provision is irrelevant because Cincinnati also waived any policy limit that might provide a cap on its total liability under the primary liability provision. If coverage under the primary liability provision is unlimited, then there would be no need to tap into coverage under the excess liability provision or resolve the scope of that coverage, effectively rendering the district court‘s decisions final. But reading the district court‘s decisions in this way, merely because Cincinnati never asked the district court to clarify that it had not waived policy limits under the primary liability provision, defies reason. In granting summary judgment, the district court neither stated nor implied that Cincinnati waived its policy limits. See Cincinnati I, 983 F.Supp.2d at 167. Instead, the district court focused on whether Cincinnati was precluded from disclaiming coverage altogether, not on the total amount Cincinnati must pay if the TCPA claims are covered
Second, FDS suggests, no more persuasively, that this court has jurisdiction because the district court has finally resolved the only question necessary for the underlying TCPA litigation to proceed, namely, whether Cincinnati must defend the lawsuit. The question of how much Cincinnati will ultimately have to pay remains conceptually distinct. See Salus Corp. v. Cont‘l Cas. Co., 478 A.2d 1067, 1069–70 (D.C. 1984). Further, FDS suggests that deciding more, including whether the TCPA claims are covered under the excess liability provision, would not only have been unnecessary but premature. If the parties settle their Superior Court class action litigation for less than the primary liability provision policy limits, then deciding issues relating to the excess liability provision would become unnecessary. Even without such a settlement, resolving some of the issues posed by Cincinnati‘s request for declaratory judgment might prove easier after the class action litigation is completed, particularly as “the duty to indemnify, i.e., ultimate liability, depends upon the true facts” and not the allegations in FDS‘s complaint, see Salus, 478 A.2d at 1069–70. The district court did not indicate that these were the reasons it declined to address fully the relief sought by Cincinnati regarding the excess liability provision. So long as “other relief remains to be resolved,” a district court decision is not final under
Moreover, had the parties considered the district court‘s determinations about the primary liability provision to be final and wanted review by this court, they might have asked the district court to invoke Rule 54(b), see Blue, 764 F.3d at 19; Robinson-Reeder, 571 F.3d at 1340, and justified that request by explaining their concerns about prematurely reviewing the remaining issues related to the excess liability. Based on these same concerns, they might have asked the district court to delay resolving the excess liability issues until FDS‘s TCPA litigation is completed. In response, the district court might have exercised its discretion to “stay a declaratory judgment action during the pendency of [a] parallel state court proceeding[],” Wilton v. Seven Falls Co., 515 U.S. 277, 279, 288–90 (1995), which would be immediately appealable, see id. at 280–81 (citing Moses H. Cone Mem‘l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 10 (1983)). Because they made no such requests of the district court, and the district court has not finally resolved Cincinnati‘s rights and liabilities under the excess liability provision, this court lacks jurisdiction to consid-er
The court, thus, has no occasion to address whether it lacks jurisdiction because the district court may have left unresolved questions of whether the primary liability provision‘s deductible applies on a per claim, per claimant or per occurrence basis. Nor need the court resolve whether the absence of the entry of judgment in favor of All Plumbing separately defeats finality. Although All Plumbing‘s interests are aligned with FDS for the purposes of Cincinnati‘s declaratory judgment action such that the need for a consistent judgment across defendants would require All Plumbing to share in FDS‘s victory in the initial summary judgment decision, see Carter v. District of Columbia, 795 F.2d 116, 137–38 (D.C.Cir.1986), there is no final judgment with respect to any party, including FDS.
Accordingly, in view of Cincinnati‘s unresolved rights and liabilities under the excess liability provision, there is no final decision under
United Food and Commercial Workers Local 1245, Intervenor. Nos. 11–1267, 11–1296. United States Court of Appeals, District of Columbia Circuit. Feb. 5, 2016.
ALDEN LEEDS, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.