IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION 

CINCINNATI INSURANCE ) 

COMPANY ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) CV-3:06-CV-00733-MHT

 ) 

JOSEPH DONALD PRATHER ) 

 ) 

 Defendant. ) 

 ) 

RESPONSE BRIEF IN OPPPOSITION TO DEFENDANTS’ 

MOTION TO DISMISS

 COMES NOW, The Cincinnati Insurance Company (“CIC”) by and through undersigned 

counsel of record and files this its Response in Opposition to Defendants’ Motion to Dismiss: 

STATEMENT OF FACTS

Jason Swader and Tracy Swader (“Swaders”) sued Steven Bullard (“Bullard”) and Cincinnati 

Insurance Company on or about April 18, 2006 in the Circuit Court of Chambers County, Alabama. 

Swaders allege that on or about February 3, 2006, the Swaders were passengers in a vehicle driven 

by Bullard. Swaders allege that due to Bullard’s negligent and/or wanton conduct the automobile 

operated by Bullard, was involved in a single car accident. 

The Swaders seek UM/UIM benefits from CIC under a policy issued to Don Prather and to 

Linda Prather. CIC issued to the Prathers a policy of insurance known generally as Personal Auto 

Policy. The policy number is A01 0134532 and the effective dates are March 26, 2005 through 

March 26, 2006. At the time of the incident made basis if this suit, Don Prather and Linda Prather 

were the named listed insureds. Neither Tracy Swader, the daughter of the named listed insureds, 

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nor Jason Swader, son-in-law of the named insureds, were named listed insureds. In addition, 

neither Tracy Swader and Jason Swader were members of the Prathers’ household. 

At the time of the incident made basis if this suit, the following vehicles were covered 

automobiles under said policy 

1993 Chevrolet Van VIN# 1GCDG15Z8PF333497 

1997 Ford Explorer VIN# 1FMDU32X6VUD31579 

2003 Honda Accord LX VIN# 1HGCM56333A075579 

1998 Nissan/Datsun Pickup VIN# 1N6ND06S7GC345261 

1986 Ford F150 VIN# 1FTEF14N8GLA29352 

Swaders are seeking coverage for vehicle bearing VIN#: 2G2FU22P4P2213516, which vehicle is not 

covered by the referenced policy nor was it involved in the incident made the basis of the suit 

pending in Chambers County, Alabama. 

ARGUMENT

 The rule has long been established that the existence of a case in one court does not 

defeat jurisdiction in another. ERWIN CHERMERINSKY, FEDERAL JURISDICTION §14.2 (2nd ed. 

1994). There is an exception to this rule; that is, actions involving real property. Donovan v. 

City of Dallas, 377 U.S. 408, 412 (1964). This rule was implemented to prevent inconsistent 

divisions of real property. Colorado River Water Conservation Distr. v. United States, 424 U. S. 

800, 819 (1976). Real property is not the issue of CIC’s Declaratory Judgment Action nor is it 

the basis of the State Court proceeding. The issue of the State Court proceeding is based on an 

alleged tort. The issue in the Federal Court is whether the Swaders are entitled to coverage 

under the Prathers’ policy of insurance. The Swaders are not a party to the Federal Court action 

and neither is the alleged tort-feasor. The actions are not duplicitous. CIC seeks a determination 

from this Honorable Court as to whether the Swaders can legally make a claim on someone 

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else’s insurance policy. CIC is not seeking a determination from this Honorable Court about 

whether the alleged tort-feasor was negligent and/or wanton. 

“The Court emphasized that federal courts have a virtually unflagging obligation to exercise 

jurisdiction and, therefore, a federal court may not abstain simply because of parallel proceedings in 

state court.” CHEMERINSKY, § 14.2 (citing Colorado River Water Conservation Distr., 424 U.S. at 

817.) “[T]he pendency of an action in state court is no bar to proceedings concerning the same 

matter in the Federal court having jurisdiction.” Ibid. The United States District Court of the 

Middle District of Alabama has jurisdiction of this case by virtue of diversity of citizenship of the 

parties and the amount in controversy is in excess of $75,000.00 as outlined in 28 U.S.C. § 1332. In 

addition, venue is appropriate pursuant to 28 U.S.C. § 1391. 

 The Court in Colorado River Water Conservation District, provides four (4) factors for 

the federal court judge to consider when determining whether to exercise jurisdiction. The Court 

stated that the federal courts should consider 1) the problems that occur when the a state and 

federal court assume jurisdiction over the same res; 2) the relative inconvenience of the federal 

forum; 3) the need to avoid piecemeal litigation; and 4) the order in which the state and federal 

proceedings were filed. Colorado River Water Conservation Distr., 424 U.S. at 818-819. 

 The Court in Colorado River Water Conservation District stated that the referenced four 

(4) factors are not a checklist but rather guideposts for a balancing of careful consideration of the 

factors involved. Ibid. In fact, the Court stated, “[T]he task is to ascertain whether there exists 

`exceptional` circumstances , the clearest of justifications, that can suffice under Colorado River 

to justify the surrender of that jurisdiction.” Id. at 25-26. 

 Firstly, the federal court will not be assuming jurisdiction over the same res. The parties 

to the state court action and to the federal court action are not the same. CIC does not seek a 

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determination from the federal court whether the alleged tort-feasor named in the state court 

action was at fault. CIC seeks a declaration from the federal court that the Swaders are not 

entitled to UM/UIM benefits under the Prathers’ policy of insurance. Such declaration from this 

court would further judicial economy by obviating CIC’s part in the state court proceeding. 

 Secondly, the federal forum is not an inconvenience as such involvement will further 

judicial economy. 

 Thirdly, the federal court will not create piece-meal litigation by exercising jurisdiction 

over this matter. CIC does not request the federal court to consider the tort which was allegedly 

committed and which is the subject of the state court action but rather CIC seeks an adjudication 

of its legal status and liabilities in relation to the Swaders under the Prathers’ policy of insurance. 

There are two separate and distinct causes of action; that is, the state court action is an action 

based in tort whereas the federal court action is an action based on contractual liability. Only six 

(6) days ago, the Swaders amended their Complaint to add a bad faith count and to name 

additional parties. However, such amendment is not timely nor based on fact. The Swaders are 

not in privity of contract with CIC; therefore, the Swaders have no standing to make such claims. 

The Swaders are not a party to the federal court action and cannot legally be parties to the federal 

court action. 

 Fourthly, the sequence in which the state court action and the federal court action were 

filed is of no consequence in this action as it does not concern real property or water rights. 

Donovan, 377 U.S. at 412. 

CONCLUSION

 Unquestionably, the decision rendered by this Court in the Declaratory Judgment Action 

would resolve the controversy. It would further judicial economy. Most importantly, however, 

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this Court would be abiding by long held and established tenets established by the Supreme 

Court. The Supreme Court reiterated that a federal court may abstain from exercising 

jurisdiction only when exceptional circumstances are present. CHEMERINSKY, § 14.2 (citing Colorado 

River Water Conservation Distr., 424 U.S. at 817.) The mere duplicativeness of parallel state action and 

federal proceedings is insufficient to justify abstention. Ibid. As a general rule, federal courts 

may not abstain when there is identical concurrent litigation in state court. Ibid. 

WHEREFORE, PREMISES CONSIDERED, Cincinnati Insurance Company 

respectfully requests this Honorable Court to deny the Prathers’ Motion to Dismiss. 

 RESPECTFULLY SUBMITTED, 

 s/Jennifer T. Dewees___________

Jennifer T. Dewees (ASB1265S35J) 

2001 Park Place Tower 

Suite 911 

Birmingham, AL 35203 

205-251-9958 

Jennifer_Dewees@staffdefense.com 

 s/ Michael L. Jackson 

 Michael L. Jackson (ASB-1143-S75M) 

 SJIS No. JAC026 

 

Of Counsel: 

Wallace, Jordan, Ratliff & Brandt, L.L.C. 

Post Office Box 530910 

Birmingham, Alabama 35253 

Voice: (205) 870-0555 

Fax: (205) 871-7534 

E-mail: mlj@wallacejordan.com

Case 3:06-cv-00733-MHT-TFM Document 8 Filed 09/25/2006 Page 5 of 6
CERTIFICATE OF SERVICE

 I hereby certify that a copy of the above and foregoing has been electronically filed with the 

Clerk of Court using the CM/ECF system which will send notification of such filing to the following 

on this the 25th day of September, 2006: 

Timothy L. Dillard 

Dillard and Associates, LLC 

The Berry Building, Suite 400 

2015 Second Avenue North 

Birmingham, Alabama 35203 

Steven Bullard 

1405 16th Place 

Valley, AL 36854 

Service by Mail 

 Respectfully Submitted, 

 

S/Jennifer T. Dewees_____________

 Jennifer T. Dewees, #ASB1265S35J 

 2001 Park Place North 

 Suite 911 

 Birmingham, Alabama 35203 

 (205) 251-9958 

 Jennifer_Dewees@staffdefense.com

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