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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

Case No. 4:20-cv-00148-AW-CAS 

HANOVER INSURANCE COMPANY

Plaintiff,

v.

FLORIDA COALITION AGAINST

DOMESTIC VIOLENCE, INC., a Florida notfor-profit corporation; FLORIDA COALITION 

AGAINST DOMESTIC VIOLENCE 

FOUNDATION, INC., a Florida not-for-profit 

corporation; TIFFANY CARR; SANDRA 

BARNETT; PATRICIA DUARTE; MELODY

KEETH; LAUREL LYNCH; ANGELA DIAZVIDAILLET; SHANDRA RIFFEY; DONNA

FAGAN; THERESA BEACHY; SHERYL 

SCHWAB; LORNA TAYLOR; and PENNY 

MORRILL, 

Defendants. 

______________________________________/ 

TIFFANY CARR’S MOTION TO DISMISS THE COMPLAINT OR STAY 

THE CASE UNTIL RESOLUTION OF THE UNDERLYING LITIGATION

Defendant Tiffany Carr, by and through undersigned counsel, files this 

Motion to Dismiss the Complaint (ECF No. 1) filed by Plaintiff Hanover Insurance 

Company (“Hanover”) pursuant to the Wilton-Brillhart Abstention Doctrine or 

alternatively, to Stay the Case Until Resolution of the Underlying Litigation, and 

states the following in support: 

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INTRODUCTION

Rushing to federal court 16 days after litigation began in state court, Hanover 

seeks through this suit to short-circuit the state-court’s determination of various 

dispositive issues, disrupting two separate litigations initiated by two executive 

branch agencies of the State of Florida as well as the later filed state court coverage 

dispute, which has all the pertinent parties before it. The maneuver is a textbook 

example for application of the Wilton-Brillhart abstention doctrine satisfying all of 

the relevant factors in Supreme Court and Eleventh Circuit precedent counseling 

dismissal or stay in such circumstances. 

FACTUAL BACKGROUND

Hanover issued policy number LHJ-H138435-00 (“Policy” ECF No. 1-2 at 1), 

with a “Policy Period” from December 19, 2019 to December 19, 2020 (id.), 

covering up to $3 million dollars per occurrence (id. at 20). The policy applies to a 

“Claim” first made within the policy period. (Id. at 21). Claim is defined as follows:

1. Written demand received by an Insured for monetary or nonmonetary relief including injunctive relief;

2. Civil proceeding commenced by the service of a complaint or similar 

pleading;

3. Criminal proceeding commenced by the filing of charges;

4. Formal administrative or regulatory proceeding commenced by the 

filing of charges, formal investigative order or similar document;

5. Arbitration or mediation proceeding commenced by the receipt of a 

demand for arbitration or mediation or similar document; or

6. Official request for Extradition; against an Insured Individual for a 

Wrongful Act, including any appeal therefrom;

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7. Service of a subpoena on an Insured Individual identified by name 

pursuant to a civil, criminal, administrative or regulatory investigation, 

including when such Insured Individual is served with a target letter or 

similar document; or

8. Written request first received by an Insured to toll or waive a statute 

of limitations relating to a potential Claim described in A.1. through 

A.7. above;

(Id. at 21-22).

On March 4, 2020, the Florida Department of Children and Families (“DCF”) 

and the Florida Office of Attorney General (the “AG”) brought separate and 

simultaneous suits against Tiffany Carr and the Florida Coalition Against Domestic 

Violence (“Coalition”) (among other defendants) (collectively referred to herein as 

the “Underlying Litigation”). (ECF Nos. 1-3 at 1, 1-12 at 1). The Underlying 

Litigation, filed within hours of each other, basically seek the same relief—a claw 

back of some unspecified portion of Ms. Carr’s compensation, which allegedly was 

paid with funds DCF gave to the Coalition. (ECF No. 1-3 at ¶¶ 78-79, ECF No. 1-

12 at ¶¶ 82, 92, 100.)

More specifically, the DCF Complaint asserts three causes of action against 

the Coalition for breach of contract, breach of implied duty of good faith and fair 

dealing, and breach of fiduciary duty, (ECF No. 1-3 at Counts, I, II, and III) and four 

causes of action against Ms. Carr for fraudulent concealment, fraudulent 

misrepresentation, negligent misrepresentation, and conspiracy (id. at Counts IV, V, 

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VI, and VII). The AG Complaint alleges three substantive counts1for breach of 

fiduciary duty, unjust enrichment, and constructive trust against Ms. Carr. (ECF No. 

1-12 at Counts III, IV, and V).

Both Complaints in the Underlying Litigation allege that DCF was obligated 

by statute to contract with the Coalition as a pass-through agency to distribute funds 

to Florida’s 42 certified domestic violence shelters. (ECF No. 1-3 at ¶ 20; ECF No. 

1-12 at ¶ 14 (citing §§ 39.902(1), 39.903(7), 39.035, 39.904, 39.905, Fla. Stat. 

(2019))). The AG Complaint provides details on the executive compensation 

process at the Coalition, according to the bylaws (attached to the AG Complaint, but 

not to Hanover’s Complaint). Ms. Carr’s2compensation, including paid time off, 

was set forth in valid employment agreements written in plain English and was, at 

all times, voted on and approved by the Board. ECF No. 1-12 at ¶¶ 20, 41. The AG 

Complaint further alleges that the Coalition’s “Board acted incompetently” because 

“[d]espite the clarity of [the Coalition]’s compensation memoranda,” Board 

 

1The AG Complaint’s first two counts were for the appointment of a receiver, Count 

I as to the Coalition and Count II as to the Florida Coalition Against Domestic 

Violence Foundation (the “Foundation”). Mark Healy has been appointed as a 

receiver for both the Coalition and Foundation.

2 Ms. Carr served as the Coalition’s President and Chief Executive Officer until 

November 2019. (ECF No. 1-12 at ¶ 6.)

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members were “shocked by the amount of PTO awarded to Ms. Carr.” ECF No. 1-

12 at ¶ 42.

Hanover brought this action 16 days after the Underlying Litigation 

Commenced (ECF Nos. 1-3 at 1, 1-12 at 1), even before responses in either of the 

cases were due (see, e.g., Fla. R. Civ. P. 1.140(a) (“answer within 20 days after 

service”)), and cites eight exclusions from the policy, related communications, and 

Florida law that it claims bars coverage and the alleviates it from its duty to defend.

Specifically, Hanover requests determinations on the applicability of six 

Policy exclusions and two common law doctrines (Uninsurable and Known Loss). 

Three of the exclusions (Prior Litigation/Demand, Policy Application, and Policy 

Claim), together with Known Loss, center on the factual dispute over whether DCF’s

consulting engagement with the Coalition was actually an “investigation” as 

described in the DCF Complaint (e.g., ¶ 24) and Hanover’s Complaint (e.g. ¶¶ 3-4). 

These factual issues contend with various communications between DCF and the 

Coalition, many of which are attached to Hanover’s Complaint, wherein DCF 

indicated it “will conduct a consulting engagement related to administrative costs 

and executive compensation of the” Coalition. (ECF No. 1-6 at 1)

Hanover also seeks a determination of the applicability of the Policy’s Fraud 

Exclusion and the Profit Exclusion. Both of these exclusions, however, are

specifically exempted from the duty to defend:

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However, this exclusion shall not apply to Defense Expenses unless 

and until a final, non-appealable judgment or adjudication in any 

underlying proceeding or action establishes that an Insured committed 

such an act or omission, violation of statute or regulation or gained such 

profit, remuneration or advantage to which the Insured was not legally 

entitled.

(ECF No. 1-2 at 25 (emphasis added)).

Finally, Hanover seeks a determination that the Contract Exclusion applies 

because one of the three counts against the Coalition in the DCF Complaint is “based 

upon, arising out of or in any way related to liability on account of, any oral or 

written contract or agreement.” (¶ 119). 

On June 3, 2020, the Coalition filed suit against Hanover, Travelers Casualty 

and Surety Company of America (“Travelers”), Tiffany Carr, Sandra Barnett,

Patricia Duarte, Melody Keeth, Laurel Lynch, Angela Diaz-Vidaillet, Shandra 

Riffey, Donna Fagan, Theresa Beachy, Sheryl Schwab, Lorna Taylor, Penny Morrill,

the Foundation, the AG, and DCF (“State Coverage Suit” attached as Exhibit A). 

The State Coverage Suit seeks declaratory relief pursuant to section 86.011, Florida 

Statutes, regarding Hanover and Travelers’ duty to cover the claims related to the 

underlying lawsuits noting that the two insurance companies take inconsistent 

positions “TRAVELERS contends there is no “Claim” during the policy period, but

HANOVER contends all of the events giving rise to a “Claim” preceded its policy 

period.” Exh. A at ¶ 37; id. at ¶¶ 29–40, 51–62. The State Coverage Suit also seeks 

relief against Hanover and Travelers for breach of contract. Id. at ¶¶ 41–50, 63–71.

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The State Coverage Suit remains pending Judge Carroll, of the Second 

Judicial Circuit of the State of Florida, the same judge presiding over the DCF 

Complaint.

LEGAL STANDARD

The Supreme Court has cautioned District Courts to abstain from exercising 

jurisdiction in certain declaratory actions. Wilton v. Seven Falls Co., 515 U.S. 277, 

281-82 (1995) (the Declaratory Judgment Act is an “enabling Act, which confers a 

discretion on the courts rather than an absolute right upon the litigant.”); Brillhart v. 

Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942) (District Court “should ascertain 

whether the questions in controversy . . . can better be settled in the proceeding 

pending in the state court”).

The Eleventh Circuit has supplied several non-exclusive factors for district 

courts to consider when applying the Wilton-Brillhart Abstention Doctrine. 

Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1332 (11th Cir. 2005) (in 

the declaratory-judgment context, “the normal principle that federal courts should 

adjudicate claims within their jurisdiction yields to considerations of practicality and 

wise judgment”).

The Court may take judicial notice of public records at the dismissal stage. 

See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1280 (11th Cir. 1999). The Court 

may also consider the facts contained in the complaint as well as attached exhibits 

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and documents referred to in the complaint that are central to the claim. See 

Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc. 

v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005).

ARGUMENT

Federal courts are under no duty to make a declaration of rights. “In fact, in 

cases such as this, the Supreme Court has expressed that ‘it would be uneconomical 

as well as vexatious for a federal court to proceed in a declaratory judgment suit 

where another suit is pending in a state court presenting the same issues, not 

governed by federal law, between the same parties.’ ” Ameritas, 411 F.3d at 1330 

(quoting Brillhart, 316 U.S. at 495).

The Supreme Court’s admonishment came in the midst of a federal-forum 

coverage dispute with a pending state law claim, and the Court identified several 

factors for the District Court to consider in whether to proceed with the declaratory 

judgment action: 1) the scope of the pending state action and the nature of defenses 

there; 2) whether the claims of all parties in interest can satisfactorily be adjudicated 

in state court; 3) whether necessary parties have been joined; and 4) whether such 

parties are amenable to process in that proceeding. Brillhart, 316 U.S. at 495.

The Eleventh Circuit has provided nine factors as guideposts to determining 

whether this Court should exercise its discretion to entertain a declaratory judgment 

action:

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(1) the strength of the state’s interest in having the issues raised in the 

federal declaratory action decided in the state courts;

(2) whether the judgment in the federal declaratory action would settle 

the controversy;

(3) whether the federal declaratory action would serve a useful purpose 

in clarifying the legal relations at issue;

(4) whether the declaratory remedy is being used merely for the purpose 

of “procedural fencing”—that is, to provide an arena for a race for res 

judicata or to achieve a federal hearing in a case not otherwise 

removable;

(5) whether the use of a declaratory action would increase the friction 

between our federal and state courts and improperly encroach on state 

jurisdiction;

(6) whether there is an alternative remedy that is better or more 

effective;

(7) whether the underlying factual issues are important to an informed 

resolution of the case;

(8) whether the state trial court is in a better position to evaluate those 

factual issues than is the federal court; and

(9) whether there is a close nexus between the underlying factual and 

legal issues and state law and/or public policy, or whether federal 

common or statutory law dictates a resolution of the declaratory 

judgment action.

Ameritas, 411 F.3d at 1331.

There is no requirement that the parties be identical between the federal and 

state cases. Falls Lake Nat’l Ins. Co. v. Am. Shuttle, Inc., No. 17-24421, 2018 WL 

8244524, at *3 (S.D. Fla. Aug. 13, 2018) (“All of the Defendants in the federal action 

are named parties in the Underlying Action. Second, the issues are sufficiently 

similar. The relationships between the various entities and their respective liability 

are at issue in the Underlying Action such that the state court’s determination may 

impact the interpretation of the Parties’ respective rights under the Policy. Because 

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the Parties and issues are sufficiently similar, the Court considers the Ameritas

factors in determining whether to declare the rights of the parties.”); see also Rhein 

v. Kevelson, No. 14-61830, 2014 WL 6694744, at *4 (S.D. Fla. Nov. 26, 2014) 

(“there is no requirement in Ameritas that the state and federal actions involve the 

exact same parties.”); Geico Gen. Ins. Co. v. Hampel, No. 11-61620, 2011 WL 

13217490, at *1 (S.D. Fla. Nov. 1, 2011) (dismissing under abstention doctrine due 

to forum shopping on part of federal plaintiff in declaratory action against an 

otherwise non-removable state-court case and finding all nine Ameritas factors met). 

See also Bituminous Cas. Corp. v. J & L Lumber Co., Inc., 373 F.3d 807, 812 (6th 

Cir. 2004) (“We have repeatedly held in insurance coverage diversity cases that 

declaratory judgment actions seeking an advance opinion on indemnity issues are 

seldom helpful in resolving an ongoing action in another court and such actions . . . 

should normally be filed, if at all, in the court that has jurisdiction over the litigation 

which gives rise to the indemnity problem.”) (citations omitted). 

Moreover, the filing order of the relative state and federal actions does not 

matter. Geico Gen. Ins. Co. v. Kastenolz, 649 F. App’x 647, 650 (11th Cir. 2016) 

(“the Ameritas factors presuppose the existence of a prior filed federal declaratory 

action”); see also Ven-Fuel, Inc. v. Dep’t of the Treasury, 673 F.2d 1194, 1195 (11th 

Cir. 1982) (“In its discretion, a district court may decline to entertain a declaratory 

judgment action . . . [when it] was filed in apparent anticipation of the other pending 

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proceeding.”); Mt. Hawley Ins. Co. v. Sarasota Residences, LLC, 714 F. Supp. 2d 

1176, 1181 (M.D. Fla. 2010) (“Given that this Court must balance similar principles, 

along with questions of federalism, in determining whether to retain jurisdiction in 

a declaratory judgment action, it does not follow that the first-filed rule would 

control in this instance.”)

Finally, “the Court has no obligation to consider each and every factor on the 

list . . . .” Bright House Networks, LLC v. Pinellas Cnty., No. 14-1237, 2014 WL 

4794786, at *8 (M.D. Fla. Sept. 25, 2014); see also Great Lakes Reinsurance (UK) 

PLC, TLU Ltd., 298 F. App’x 813, 815 (11th Cir. 2008) (“We . . . have upheld a 

district court’s refusal to assert jurisdiction where the district court had considered 

only two of the factors . . . .”).

A. Ameritas Factors Counsel in Favor of Dismissal

1. The Strength of the State’s Interest.

This factor weighs completely in favor of dismissal, and a more lopsided case 

in the strength of the state’s interest is difficult to imagine. The Underlying 

Litigation was brought by two separate executive agencies by the State of Florida—

headed by two different state-wide elected offices.

Florida’s lawsuits in the Underlying Litigation follow months of investigation 

by the Florida House of Representatives, which was chronicled in statewide media 

outlets with near daily updates. See, e.g., Public Integrity & Ethics Committee, 

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https://www.myfloridahouse.gov/Sections/Committees/committeesdetail.aspx?Co

mmitteeId=2999. 

Shortly after the Underlying Litigation began, a receiver was appointed,

responsible for monthly reports to Judge Flury of the Second Judicial Circuit of the 

State of Florida and implicating the constant oversight of these issues by Florida’s 

judicial branch. Therefore, all three branches of Florida’s government are invested 

in this politically sensitive and important case. 

And of course, as is true in every coverage case, the actual coverage issues 

themselves are state-law issues, with no particular federal interest. Those issues are 

better suited to determination in the State Coverage Suit, which Hanover clearly 

anticipated when it filed this case, and has all the appropriate parties in front of it for 

full adjudication of the relevant issues. Thus, the state court’s interest in keeping the 

resolution of the issues in the state court is extraordinarily strong in this case with 

no counterweight in federal interest.

2. Whether the Federal Action Would Settle the Controversy.

That this action will not fully settle the controversy is evident. See, e.g., 

Bituminous Cas. Corp., 373 F.3d at 814 (“A declaratory judgment would not resolve 

the insurance coverage controversy here. On the contrary, as we have seen, the 

judgment in federal court declaring that Shields was an employee was contrary to 

two state court findings that Shields was not an employee, complicating the 

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underlying issues of liability. . . . Therefore, this factor weighs against exercising 

jurisdiction.”); United Rentals, Inc. v. Auto-Owners Ins. Co., No. 07-267, 2007 WL 

2695822, at *2 (M.D. Fla. Sept. 10, 2007) (“Finally, no resolution of the insurance 

coverage issue in this action settles the entire controversy in the Helmer action, but 

a resolution of the liability issue in the Helmer action renders this action 

superfluous.”).

In this case, the exclusions Hanover attempts to apply are all based on two 

factual questions: (1) the nature of the consulting agreement with DCF and whether 

it was an investigation or normal communications between contractual 

counterparties, and (2) whether Ms. Carr (and/or others) were legally entitled to the

compensation they received, and if not, what legal theory that compensation could 

be clawed back by the State of Florida or the Coalition. Hanover would be obligated 

to indemnify under certain factual determinations and not under others, thus 

dismissal is proper. Great Lakes Reinsurance, 298 F. App’x at 816-17 (“it is clear 

that factual issues, including whether the Insureds made material omissions in their 

application, and whether the type of damage the Insureds’ vessel sustained would be 

covered by the policy, would be important to the resolution of the federal case”).

Even Hanover’s request for a determination as to the duty to defend is 

premature as this case was filed before responsive pleadings were due in the 

Underlying Litigation, motions to dismiss are pending in the state courts, and those 

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complaints are likely to be amended as the litigation continues. A determination of 

the duty to defend is likely to be affected by the amended complaints. Thus, a 

premature determination of the duty to defend here in favor of Hanover, would likely 

be undone through the amendment of the complaints in the state courts.

Further, as is apparent from the State Coverage Suit, Hanover’s Complaint 

leaves issues unresolved, such as the scope of Travelers’ responsibility for coverage 

for the same transactions and occurrences and whether either insurance company 

breached their contractual duties. Thus, this suit should be dismissed and the state 

court litigation should be allowed to run its course.

3. Whether the Federal Action Would Serve a Useful Purpose.

Although a declaratory judgment may clarify the legal relationship between 

Hanover and the insureds, it would not clarify anything between the insureds and the 

opposing parties in the state court litigation. See, e.g., Bituminous Cas. Corp., 373 

F.3d at 814. Thus, assuming Hanover prevails in this action and has no duty to 

defend or indemnify in the state court actions, and then the state courts make a 

contrary factual determination that implicates indemnification from Hanover, that 

would simply reignite the dispute between Hanover and the insureds at a later time. 

This possibility segues into the next factor as it reveals a possible motivation for 

Hanover’s rush to this Court after the state court actions were filed. Moreover, as 

noted above, there remains more issues to be resolved in the State Coverage Suit.

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4. Procedural Fencing.

Hanover’s maneuver of filing this declaratory action only 16 days after the 

Underlying Litigation was filed and before the easily anticipated State Coverage Suit 

screams of procedural fencing. Great Am. Ins. Co. v. Houston Gen. Ins. Co., 735 F. 

Supp. 581, 585 (S.D.N.Y. 1990) (“The mere fact that Great American managed to 

get to a courthouse before Houston General and to obtain a stay of further litigation 

is not a reason for this Court to entertain its declaratory judgment action.”). Indeed, 

the intent of the declaratory judgment action is not to provide an alternative forum, 

but to provide a means to obtain judicial intervention without forcing the declaratory 

judgment plaintiff to be subject to the “whim of its opponent in deciding when to 

resolve the legal dispute between them.” Id.; see also Sunrise Senior Living, Inc. v. 

APB, Inc., No. 06-80674, 2006 WL 2852853, at *3 (S.D. Fla. Oct. 3, 2006) (suit 

dismissed where filed “strictly for purposes of ‘procedural fencing,’ Ameritas factor 

four tips strongly and conclusively in favor of dismissal.”); Clark Const. Group, LLC 

v. Travelers Excess & Surplus Lines Co., 470 F. Supp. 2d 1350, 1353 (M.D. Fla. 

2006) (“Courts have repeatedly discouraged such forum-racing.”).

Hanover’s race to federal court is a shameless forum grab, and such tactics 

should be discouraged through dismissal of this case.

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5. Friction Between Federal and State Courts.

The analysis under this prong implicates the analysis under the first Ameritas

prong. A federal declaratory action would clearly encroach on state jurisdiction to 

hear and decide the factual issues brought by two executive agencies of the State of 

Florida in its two separate actions against the Coalition and Carr and thus increase 

the friction between state and federal courts. Again, all three branches of Florida’s 

government have involved themselves in the issues presented by this case. Further, 

the federal declaratory action is likely to encroach on the factual determinations 

necessary in the Underlying Litigation and certainly it will upend aspects of the State 

Coverage Suit.

6. Alternative Remedy.

Hanover has a fully available alternative remedy: wait for the Underlying 

Litigation to resolve and then use the state court’s findings to determine the coverage 

issues presented State Court Litigation. Bituminous Cas. Corp., 373 F.3d at 816 (“In 

addition, a superior alternative remedy exists in the form of an indemnity action filed 

at the conclusion of the underlying state action.”). Indeed, waiting is required for 

the indemnity claim. Atl. Cas. Ins. Co. v. GMC Concrete Co., Inc., No. 07-0563, 

2007 WL 4335499, at *2 (S.D. Ala. 2007) (“[A]n insurers duty to indemnify is not 

ripe for adjudication in a declaratory judgment action until the insured is in fact held 

liable in the underlying suit.”) (citations omitted); see also Southern Coatings, Inc. 

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v. Century Sur. Co., No. 07-80558, 2008 WL 954178, at *4 (S.D. Fla. 2008); Penn 

Millers Ins. Co. v. AG-Mart Produce, Inc., No. 051852, 2006 WL 2864402, at *1 

(M.D. Fla. 2006); Northland Cas. Co. v. HBE Corp., 160 F. Supp. 2d 1348, 1360 

(M.D. Fla. 2001).

In addition, as noted above, the duty to defend issues presented in Hanover’s 

complaint are likewise premature as the litigation in the state courts is just getting 

started. Moreover, Hanover could simply proceed in the State Coverage Suit (and 

for that matter simply have waited the less than three months for the State Coverage 

Suit to be filed).

7. The Necessity of the Underlying Factual Issues.

All of Hanover’s declaratory counts are premised on the various exclusions 

cited in the Complaint that in turn, implicate the factual determinations keyed up in 

the Underlying Litigation. For example, Hanover cites the Prior Litigation/Demand, 

Policy Application, Policy Claim, and Known Loss exclusions seeking a 

determination from this Court that DCF’s consulting engagement was actually an 

investigation that should have been disclosed to Hanover. However, the State Court 

has to contend with these same issues in order to determine whether the Coalition 

was in breach of its contract or fiduciary duties (e.g., ¶¶ 48, 63-67), and what duty 

Ms. Carr and others owed individually to disclose certain salary information to DCF 

as DCF alleges in its Complaint (¶¶ 71-79, 88-92)

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Thus, Hanover’s Complaint implicates the issues in contention in the 

Underlying Litigation pending in state-court, and a dismissal or stay would be 

appropriate to allow the state court adjudication to run its course without risk of 

interference from Hanover’s declaratory action. Great Am. Ins. Co. v. Lorch, No. 

12-03479, 2013 WL 12062839, at *6 (N.D. Ga. May 2, 2013) (“Both this Court and 

the state action have the same factual question before it: whether [state-court 

defendant] was acting within the scope of his employment.”).

Further, Hanover’s Complaint is fully captured by the State Coverage Suit, 

which is now pending before the same Judge who has the DCF Complaint. See, e.g.,

Mt. Hawley Ins., 714 F. Supp. 2d at 1181 (“Finally, there is less chance for 

inconsistent verdicts if the same judge hears all cases pending in state court. In short, 

this Court abstains from declaratory judgment action because the state court can 

more efficiently settle this controversy.”). Thus, any factual issues that arise are 

much more readily resolved in state court where all the parties and issues are present 

and subject to jurisdiction of those courts.

8. Suitability of the State Trial Court.

The state court is clearly in a better position to evaluate factual issues than this 

Court because the counterparty to the contracts, DCF, and one of the funding 

agencies to the Coalition, the AG, are the plaintiffs in the Underlying Litigation. 

Further, a receiver is appointed in the AG case, who submits monthly reports to the 

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Second Judicial Circuit. Moreover, the State Coverage Suit, unlike Hanover’s 

Complaint, comprehensively brings all the parties and all of the issues into the same 

court house. Thus, the state court is far better suited to resolve the issues presented 

in Hanover’s Complaint.

9. A Close Nexus Between the Issues and State Law and Policy.

In the normal insurance declaratory action, there is “no special call on the 

federal forum” as the policy issues are all state law and no federal law is implicated. 

See, e.g., Certain Interested Underwriters at Lloyd’s London v. Jindani, No. 09-

1414, 2009 WL 5171755, at *2 (M.D. Fla. Dec. 23, 2009) (“ ‘[t]he desire of 

insurance companies . . . to receive declarations in federal court on matters of purely 

state law has no special call on the federal forum’ ”) (quoting State Auto Ins. Cos. v. 

Summy, 234 F.3d 131, 136 (3d Cir. 2000)); see also Falls Lake Nat'l Ins. Co., 2018 

WL 8244524, at *4 (“Finally, there is a close nexus between the underlying factual 

and legal issues and state law (factor 9)—the Policy is governed by Florida law and 

the only basis for jurisdiction in this Court is diversity.”).

However, this case is an extraordinary example of the desire of the State of 

Florida to have its interests heard in the forum of its choice. Florida’s executive 

branch has filed two separate lawsuits, on the same day, following months of press 

and a public investigation by the Florida House of Representatives Public Integrity 

& Ethics Commission. Further the state court has already appointed a receiver in 

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the Underlying Litigation. Moreover, this case involves unsettled questions of state 

law with recent legislative action affecting the parties’ legal status in the Underlying 

Litigation (Ch. 2020-6, Laws of Fla.), and prior to that an unusual and unlitigated 

feature of Florida law designating the Coalition as the sole source contractual 

counterparty to DCF (ECF No. ¶ 63 (“As a result of being a single source provider, 

mandated by Florida law, [the Coalition] owed DCF a fiduciary duty.”)) with 

specific provisos in the general appropriations act also designating the Coalition as 

the recipient of funds appropriated to DCF. See, e.g., Ch. 2018-9, Laws of Fla. at 

77. Thus, the duties alleged in the Underlying Litigation are complicated issues of 

Florida law that are best left to the state forum to decide in the first instance.

Therefore, while the federal interests in the coverage issues is always low in 

a declaratory action of this sort, the state interests in this particular case are high and 

counsel in favor of dismissal or staying the case until the coverage issues become 

ripe.

CONCLUSION

For the foregoing reasons, Hanover’s Complaint should be dismissed in favor 

of the state forum, or alternatively, this Court should stay this case until the state 

courts have decided the underlying factual issues.

Case 4:20-cv-00148-RH-MAF Document 19 Filed 06/08/20 Page 20 of 22
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Respectfully submitted this 8th day of June, 2020,

By: /s/ Joshua M. Hawkes 

James A. McKee

Florida Bar No. 638218

jmckee@foley.com

Joshua M. Hawkes 

Florida Bar No. 112539

jhawkes@foley.com

FOLEY & LARDNER LLP

106 East College Avenue

Tallahassee, FL 32301-7732

Telephone: (850) 222-6100

Facsimile: (850) 561-6475

Case 4:20-cv-00148-RH-MAF Document 19 Filed 06/08/20 Page 21 of 22
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CERTIFICATE OF SERVICE

I hereby certify that, on June 8, 2020, a true and correct copy of the foregoing 

was filed with the Northern District of Florida via cm/ecf system and served on the 

below service list via e-mail.

 /s/ Joshua M. Hawkes 

Joshua M. Hawkes

SERVICE LIST

Sean M. McDonough

sean.mcdonough@wilsonelser.com

Wilson Elser Moskowitz Edelman & Dicker LLP

111 North Orange Avenue Suite 1200

Orlando, Florida 32801

407-203-7599 - Phone

407-648-1376 - Facsimile

Attorneys for Plaintiff, Hanover Insurance Company

Case 4:20-cv-00148-RH-MAF Document 19 Filed 06/08/20 Page 22 of 22