* P ursuant to 5 TH C IR

. R. 47.5, the Court has determined that this opinion should not be published

and is not precedent except under the limited circumstances set forth in 5th cir. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________________

No. 98-60084

(Summary Calendar)

______________________________________

NORTHFIELD INSURANCE COMPANY,

Plaintiff-Appellee,

versus

JOHN DALE ADAMS, doing business as

Rockets Secrets Cabaret; ET AL

Defendants

CHADRICK J. BROWN

Defendant-Appellant

______________________________________________________________

Appeal from the United States District Court

For the Southern District of Mississippi

(97-CV-127)

______________________________________________________________ September 8, 1998

Before JOLLY, SMITH and WIENER, Circuit Judges.

Per Curiam *

In this declar at o ry judgment action, Defendant-Appellant Chadrick J. Brown appeals the

rulings of the district court denying his motion to dismiss and granting summary judgment in favor

of Plaintiff-Appellee Northfield Insurance Company (“Northfield”). Concluding that the district court

did not abuse its discretion in retaining jurisdiction over Northfield’s action and did not err in holding

that, as a matter of law, Brown’s claims are excluded from coverage under Northfield’s policy, we2

affirm.

I

FACTS AND PROCEEDINGS

This act io n arises out of an altercation that allegedly occurred on the premises of Rockets

Secrets Cabaret (the “Cabaret”) in Jackson, Mississippi. Chadrick Brown and Roderick Johnson filed

separate suits in Mississippi state court against their alleged assailant, Cabaret employee Gary Havens,

and Cabaret owner John Dale Adams, seeking damages for injuries sustained in the fracas. According

to allegations made by Brown and Johnson in thei r co mplaint s, Havens “intentionally, willfully,

unlawfu lly, wantonly, recklessly, grossly negligently, and/or negligently and with excessive force,

attacked [plaintiffs] causing serious bodil y har m to [plaintiffs],” and “intentionally, willfully,

unlawfully, wantonly, recklessly, forcibly, grossly negligently, and/or negligently and unreasonably

threatened [plaintiffs] with severe bodily harm.” Brown and Johnson further charged that Adams was

vicar io usly liable for the acts of his employee and that Adams was himself guilty of “intentional,

willful, unlawful, wanton, reckless, grossly negligent, and/or neglig ent act s and/or omissions.”

At the time that Brown and Johnson sustained their injuries, the Cabaret carried a commercial

liabilit y policy issued by Northfield Insurance Company, putative ly insuring Adams as owner and

Havens as an employee. Upon receiving notice of the state court actions, Adams and Havens made

demand on Northfield for defense and indemnity in connection with those lawsuits. Northfield agreed

to provide a defense subject to its reservation of rights on the issue of coverage.

During the pendency of the state court actions, Northfield file d t he inst ant suit in federal

district court seeking a declaration that, by virtue of the language in its policy, Brown’s and Johnson’s3

claims are not within the scope of coverage and that, consequently, Northfield is not obligated to

provide a legal defense for Havens and Adams or indemnify them against these claims. Northfield

named as defendants its two insureds, Havens and Adams, as well as state court tort claimants Brown

and Johnson . All dist rict court defendants are citizens of Mississippi, Northfield is a citizen of

Minnesota, and the amount in controversy exceeds $75,000.00 exclusive of interest and costs. Thus,

subject matter jurisdiction in the district court rests on diversity of citizenship.

In response to Northfield’s complaint, Brown and Johnson filed motions to dismiss, arguing

that because each has a case pending in state court involving the same facts as Northfield’s action,

the district court should exercise its discretion to abstain from hearing the declaratory judgment suit.

The district court denied the motions.

Thereafter, Northfield filed a motion for summary judgment, maintai ning that the various

claims asserted in Brown’s and Johnson’s state court suits against Havens and Adams are excluded

from coverage by its policy. Northfield submit t ed summary judgment evidence that its policy

contained an exclusion for property damage and bodily injury arising out of assault and battery. The

exclusion reads as follows:

This insurance does not apply to “bodily injury,” “property damage,”

“personal injury,” “advertising in jury,” or medical expense arising out of

assault and battery or out of any act or omission in connection with the

prevention or suppression of such acts, whether caused by or at the

instigation of the insured, his employees, patrons or any other person.

The only defendant to respond to Northfield’s summary judgment motion was Brown. After

considering the motion, together with Brown’s response, the district court granted summary

judgment in favor of Northfield. Brown timely filed a notice of appeal.1 See Wilton v. Seven Falls Co. , 515 U.S. 277, 289 (1995).

2 S ee Knight v. United States Fidelity & Guar. Ins. Co.

, 65 F.3d 34, 36 (5th Cir. 1995), cert. denied

, 517 U.S. 1134 (1996).

3 28 U.S.C.A. § 2201(a).

4 See Wilton , 515 U.S. at 286.

5 See Travelers Ins. Co. v. Louisiana Farm Bureau Fed’n , 996 F.2d 774 (5th Cir. 1993).

6 Id.

4 II

ANALYSIS

A. Standard of Review

We review a district court’s exercise of discretion in a Declaratory Judgment Act case under

the abuse of discretion standard. 1 We review a grant of summary judgment d e novo

, applying the

same standard as the District Court. 2

B. Applicable Law

1. Discretionary Jurisdiction

The Dec larat o ry Judgment Act provides that “[i]n a case of actual controversy within its

jurisdiction

. . . any court of the United States

. . . may declare the rights and other legal relations of

any interested party seeking such declaration.” 3 Although this statute vests the federal courts with

power and co mpetence to issue a declaration of rights, a district court has discretion whether to

exercise this power in any particular case or to abstain. 4 The district court’s discretion in this matter

is broad, but not unfettered. 5 Unless the district court “addresses and balances the purposes of the

Declaratory Judgment Act and the factors relevant to the abstention doctrine on the record, it abuses

its discretion.” 67 See Allstate Ins. Co. v Mercier , 913 F.2d 273, 277 (6th Cir. 1990).

8 See St. Paul Ins. Co. v. Trejo , 39 F.3d 585, 590-91 (5th Cir. 1994).

5 Two principal criteria that, if found to be present, weigh in favor of a district court’s decision

to entertain a declaratory judgment action are that the judgment will (1 ) serve a useful purpose in

c larifying and settling the legal relations in issue, and (2) terminate and afford relief from the

uncertainty, insecurity, and controversy giving rise to the proceeding. 7 In addition to these criteria,

a district court’s discretion must be guided by factors relevant to abstention, including (1) whether

there is a pe nding state action in which all of the matters in controversy may be fully litigated, (2)

whether the plaint iff filed suit in antici pat io n o f a lawsuit filed by the defendant, (3) whether the

plaint iff engaged in forum shopping in bringing the suit, (4) whether there exist possible inequities in

allowing the declarator y plaint iff to gain precedence in time or to change forums, (5) whether the

federal court is a convenient forum for the parties and witnesses, (6) whether retaining the lawsuit

in federal court would serve the purposes of judicial economy, and (7) whether the federal court is

being called on to construe a state judicial decree invo lving the same parties and entered by the court

before whom the parallel state suit between the same parties is pending. 8

In the instant case, the district court denied Brown’s m ot ion t o dismiss and retained

jurisdiction on the grounds that (1) Northfie ld had no t been named as a party in the pending state

court actions, and (2) the issue of coverage was not being litigated there. Consequently, the court

concluded, the state court actions would not provide satisfactory means for the resolution of

Northfield’s claim.

Citing a plethora of cases in which federal district courts elected to dismiss declaratory actions

despite the fact that the issues or the parties were not the same as those in pending state suits, Brown9 See Mercier , 913 F.2d at 277.

6

contends that the district court should h ave abst ained from exercising its jurisdiction in this case.

Brown argues that the district court abused its discretion in failing to dismiss this suit given that

No rt hfield could have intervened in the state court action and sought declaratory relief there. In

addition, as the liabilit

y of Havens and Adams has yet t o be determined, argues Brown, judicial

comity and economy militate in favor of resolving that issue be fo re adjudicating the question of

coverage.

There is no per se rule against a federal court’s entertaining a declaratory judgment action to

determine an insurer’s liabilit y when a tort action is pend ing against it s insured in a state court. 9

Although the cases cited by Brown are instructive as to the merits of dismissal in a variety of factual

situations, they are not dispositive of the outcom e in this particular case. Northfield is not a party to

the pending state actions and the issue of insurance coverage has not been raised in that court. As

Brown points out, his state action will be going to trial in a matter of months. Consequently, for

Northfield to intervene at this time would surely delay those proceedings. There is no evidence to

suggest that Northfield filed its suit as a preemptive strike to obtain res judicata advantage or to shop

fo r a mo re favo rable forum. Neither is there any indication that Northfield’s suit is an attempt to

thwart some advantage Brown gained by filing first in state court . Reso lut io n of the declaratory

judgment action in federal court provid es an efficient method of determining Northfield’s policy

obligations. Given these considerations, we cannot say that the district court abused its discretion

in choosing to retain jurisdiction over Northfield’s declaratory judgment action.

2. Summary Judgment

Summary judgment is appropriate when, after viewing the evidence in the light most favorable10 See Celotex Corp. v. Catrett , 477 U.S. 317, 322-24 (1986); Fed. R. Civ. P. 56(c).

11 Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994).

7 to the nonmoving party, the record reflects that no genuine issue o f mat erial fact exists, and the

moving party is entitled to judgment as a matter of law. 10 Once the movant carries his burden, “the

nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine

issue for trial.” 11

Brown contends t hat t he district court erred in granting summary judgment in favor of

Northfield because two material facts are genuinely in dispute. First, Brown submits that the policy

issued by Northfield to Adams does not contain an assault and battery exclusion. Brown argues that

the district court made an imperm issible credibility determination when it relied on a notarized

Certification of Insurance presented by No rt hfield’s vice-president as evidence that the attached

policy, which inc luded the exclusion, was the same policy that had been issued to Adams. This

argument is wholly without merit. In response to Northfield’s motion, none of the defendants came

forward with evidence to substantiate the assertion that the exclusion was not present in the policy

issued to Adams. Brown clearly failed to sustain his burden under the summary judgment rubric, and

t he dist rict court was correct in proceeding under the assumption that the policy contained t he

exclusion.

Second, Brown contends that even if the exclusion were included in the policy, his injuries

are nevertheless covered. In support of this argument, Brown notes that his complaint alleges that

Havens’s actions were either intentional or negligent. As he has not alleged unequivocally that

Havens’s conduct was intentional, argues Brown, there is a genuine and material factual dispute as

to whether his injuries were the result of an assault and battery or merely negligence. Brown further8

submits that, because he did not “voluntarily enter into the affray,” his injuries were accidental and

therefore out side t he sco pe of Northfield’s exclusion. These arguments are specious and must

therefore fail.

Even though in his state court pleading Brown characterized Havens’s actions as “intentional,

willful, unlawful, wanton, reckless, grossly negligent, and/or negligent,” Brown has failed to present

any evidence to support his alternative assertion that his claims involve negligence or unintentional

acts by Havens. In his swo rn statement to the police, Brown averred that Havens committed the

offense of simple assault “by hitting him in the mouth with a blount [sic] object” thereby fracturing

his jaw and breaking his teeth. Given Brown’s pleading and affidavit, there is no question that his

claim against Havens is based on an intentional act. Furthermore, as the exclusion encompasses not

o nly assault and battery but also “any act or omission in connection with the prevent io n and

suppression” of assault and battery, Brown’s claim against Adams

—— relating, among other things,

to his alleged negligent hiring, retention and training of Havens

—— is also excluded from coverage.

Northfield’s policy provides coverage for “sums that the insured becomes legally obligated

to pay as damages because of ‘bodily injury’ or ‘property damage’.” The coverages section of the

policy states in pertinent part that the insurance “applies to ‘bodily injury’ and ‘property damage’ only

if: (1) The ‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence’ that takes place in the

‘coverage territory;’

. . . .” The term “occurrence” is defined as “an accident, including continuous

or repeated expo sure t o substantially the same general harmful conditions.” Brown argues that,

because he was injured through “external force, not of his choice or provocation,” his injuries were

the result of an accident and are therefore covered. Northfield’s policy specifically excludes bodily

injury arising out of specified occurrences (or accidents), one of which is “assault an d battery .”9

Therefore, regardless of whether Brown provoked this particular attack, his claims against Havens

and Adams for his resulting injuries are excluded from coverage under the policy.

III

CONCLUSION

The district court did not abuse its discretion in denying Brown’s motion to dismiss, given that

court’s reasonable explanation for retaining jurisdiction over Northfield’s claim under the Declaratory

Judgment Act. As for summary judgment, the court correctly concluded that, by virtue of the express

exclusion in Northfield’s policy, Brown’s injuries were not within the scope of coverage.

Accordingly, the rulings of the district court are, in all respects,

AFFIRMED.