United States District Court, E.D. Louisiana
BITCO GENERAL INSURANCE CORPORATION, ET AL.
DASH BUILDING MATERIAL CENTER, INC., ET AL.
ORDER & REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE.
the Court is defendant Dash Building Material Center,
Inc.'s (“Dash”) motion to abstain and
dismiss this case pursuant to the
Brillhart/Wilton doctrine. For the
following reasons, the motion is denied.
declaratory action arises out of an insurance contract
dispute between Dash and the plaintiffs, BITCO General
Insurance Corporation and BITCO National Insurance Company
(collectively, “BITCO”). On May 9, 2018, Don
Fontenelle (“Fontenelle”), who is not a party to
this lawsuit, filed a petition for damages against Dash in
Louisiana state court, alleging that Dash and other
defendants caused him to be exposed to asbestos which, in
turn, caused him to contract mesothelioma. Dash tendered its
defense in the state court lawsuit to BITCO, seeking
indemnity based on an alleged general liability insurance
policy. On August 21, 2018, BITCO conditionally
agreed to provide a defense to Dash until further
January 29, 2019, the plaintiffs in the state court
proceeding filed a third supplemental and amending petition,
adding BITCO as a defendant in its capacity as Dash's
insurer. However, before BITCO was added as a
defendant, it filed the present action in this Court against
Dash pursuant to the Declaratory Judgment Act, 28 U.S.C.
§ 2201. BITCO asserts that Dash cannot prove the
existence of a policy issued to Dash by BITCO that would
cover the allegations made by Fontenelle. As a result, BITCO
requests that the Court declare that BITCO has no duty to
defend or indemnify Dash for the related claims or,
alternatively, to declare that BITCO is only liable for its
pro rata share of costs incurred on behalf of Dash
in the state court lawsuit. Dash moves the Court to abstain
from deciding this action, and dismiss the case altogether,
pursuant to the Brillhart/Wilton
threshold matter, the parties disagree about which abstention
doctrine applies. The Brillhart/Wilton
doctrine applies only to cases that are exclusively
declaratory in nature. See Southwind Aviation, Inc. v.
Bergen Aviation, Inc., 23 F.3d 948, 951 (5th Cir. 1994).
“[W]hen an action involves coercive relief, the
district court must apply the abstention standard set forth
in Colorado River Water Conservation District v. United
States, 424 U.S. 800, 817. . . (1976)” instead.
New England Ins. Co. v. Barnett, 561 F.3d 392,
394-95 (5th Cir. 2009). Unlike other circuits, the Fifth
Circuit has adopted a bright-line rule: any claim
for coercive relief requires application of the Colorado
River doctrine. Id. at 395. Therefore, to
determine which abstention doctrine applies, the Court must
first decide whether BITCO's federal case is a purely
reviewed the parties' briefing on the matter, the Court
concludes that the action is not purely declaratory because
“it involves a request for monetary . . .
relief.” American Guarantee & Liability Co. v.
Anco Insulations, Inc., 408 F.3d 248, 250-51 (5th Cir.
2005). In American Guarantee, the plaintiff-insurer
sought a declaration that it did not owe a duty to the
defendants to defend them in a separate lawsuit in state
court. See Id. at 251. However, because the
plaintiff also sought restitution for amounts that it had
paid to defend the defendants in state court, the Fifth
Circuit held that the application of the Colorado
River standard was appropriate. Id. This case
is nearly identical: as a corollary to BITCO's
alternative claim for declaratory relief, it seeks
reimbursement from Dash for any defense costs it incurs in
the state court proceeding.
in American Guarantee, the Fifth Circuit noted that
the Colorado River doctrine applied even if the
plaintiff's restitution claim was “merely
ancillary” to its claim for declaratory relief.
Id. at 251 n.15; see also Black Sea Inv., Ltd.
v. United Heritage Grp., 204 F.3d 647, 652 (5th Cir.
2000). Because BITCO's complaint includes a request for
reimbursement, application of the
Brillhart/Wilton doctrine is inappropriate.
See Diamond Offshore Co. v. A&B Builders, Inc.,
302 F.3d 531, 539- 40 (5th Cir. 2002), overruled on other
grounds, 589 F.3d 778 (5th Cir. 2009); see also
Scottsdale Ins. Co. v. A3M Co., Inc., No. 07-3346, 2008
WL 754693, at *2 (E.D. La. Mar. 19, 2008) (Vance, J.)
(holding that, because the plaintiff asserted a claim for
restitution in addition to its claim for declaratory relief,
the Colorado River abstention analysis
order requesting briefing on the issue of which abstention
doctrine applies, the Court specifically asked the parties to
argue the relevance and significance of Massachusetts Bay
Insurance Company v. Lewis, No. 10-585, 2011 WL 1261145
(M.D. La. Mar. 31, 2011)-a case with facts similar to this
one. In Massachusetts Bay, the Court
rejected the argument, now urged by BITCO, that a request for
reimbursement of defense costs “wholly related”
to the central claim for declaratory relief constituted
coercive relief. Id. at *5. But the court relied in
part on the fact that there was no claim for injunctive
relief before it. It did not analyze whether the
request for reimbursement could be accurately characterized
as a claim for monetary relief. See Id. Based on the
Fifth Circuit's holding in American Guarantee,
this Court finds that it does. Because BITCO's complaint
requests more than just declaratory relief, the Court must
apply the Colorado River doctrine.
determined that the Colorado River doctrine applies,
the Court must decide whether abstention is proper.
Typically, “the pendency of an action in the state
court is no bar to proceedings concerning the same matter in
the Federal court having jurisdiction” because the
federal court's obligation to exercise its given
jurisdiction is “virtually unflagging, ”
Colorado River, 424 U.S. at 817. Accordingly,
“[u]nder the Colorado River standard, [a]
district court's discretion to dismiss is ‘narrowly
circumscribed.'” New England, 561 F.3d at
395 (quoting Colorado River, 424 U.S. at 817). A
federal court may only abstain from exercising its
jurisdiction “based on considerations of ‘[w]ise
judicial administration, giving regard to conservation of
judicial resources and comprehensive disposition of
litigation.'” Murphy v. Uncle Ben's,
Inc., 168 F.3d 734, 737-38 (5th Cir. 1999) (quoting
Colorado River, 424 U.S. At 817).
Colorado River abstention analysis is only
available, however, if the state and federal court
proceedings are parallel. American Guarantee, 408
F.3d at 252; Stewart v. Western Heritage Ins. Co.,
438 F.3d 488, 491 & n.3 (5th Cir. 2006). As a general
rule, proceedings are parallel when “they involv[e] the
same parties and the same issues.” Diamond
Offshore, 302 F.3d at 540 (quoting RepublicBank
Dallas Nat'l Ass'n v. McIntosh, 828 F.2d 1120,
1121 (5th Cir. 1987)); see also American Guarantee,
408 F.3d at 252. The Fifth Circuit has acknowledged that
“‘it may be that there need not be applied in
every instance a mincing insistence on precise identity'
of parties and issues.” African Methodist Episcopal
Church v. Lucien, 756 F.3d 788, 797 (5th Cir. 2014)
(quoting McIntosh, 828 F.2d at 1121). To determine
whether the proceedings are sufficiently parallel to warrant
a Colorado River ...