1

 Although both Motions are filed pursuant to Federal Rule of Civil Procedure 12(b)(6)

for failure to state a claim upon which relief may be granted, a motion seeking dismissal of a

Declaratory Judgment Act action for the absence of a case or controversy is properly brought

pursuant to 12(b)(1), for lack of subject matter jurisdiction. We will therefore construe

Defendants’ Motions as filed pursuant to Rule 12(b)(1). See TIG Indus. Co. v. Insinger Mach.

Co. Inc., 1998 WL 748287, *1 n.1. (E.D.Pa. Oct. 27, 1998). 

Additionally, as J.V.’s Motion merely states that he concurs with Angerson’s Motion we

will construe it as a concurrence with Angerson’s Motion. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FARMERS NEW CENTURY :

INSURANCE COMPANY : Case No. 4:04-CV-2608

Plaintiff, : 

:

v. : (Judge Jones)

:

JOHN ANGERSON, C.L.A, :

AND J.V., :

Defendants. :

ORDER 

April 18, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion to Dismiss filed by Defendant John

Angerson (“Angerson”) (Rec. Doc. 2), concurred with by Defendant J.V. in a

separate filing (Rec. Doc. 3), against Plaintiff Farmers New Insurance Company

(“Plaintiff” or “Farmers”).1

 The Plaintiff has filed a timely response, and the

Motion is now ripe for our review. 

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2

For the foregoing reasons, we will deny the Defendant’s Motion.

STANDARD OF REVIEW:

In considering a motion to dismiss, a court must accept the veracity of a

plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also

White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d

63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in

considering a motion to dismiss based on a failure to state a claim argument, a

court should "not inquire whether the plaintiffs will ultimately prevail, only

whether they are entitled to offer evidence to support their claims." Furthermore,

"a complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957);

see also District Council 47 v. Bradley, 795 F.2d 310 (3d Cir. 1986). 

STATEMENT OF FACTS:

According to the complaint, on April 16, 2004, the Defendant C.L.A., the

son of co-Defendant Angerson, was operating an all-terrain vehicle along with coDefendant J.V. which was involved in an accident. J.V. suffered significant

injuries as a result. Not long after the accident, J.V. retained legal counsel in the

person of attorney Chris Munley, who initiated conversations with the Plaintiff,

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3

which had issued Angerson’s homeowners’ insurance policy, regarding whether

Angerson’s policy with the Plaintiff covered J.V.’s extensive injuries in the

accident. It is unclear from the record before us whether Farmers ever formally

declined coverage as a result of the contact made by attorney Munley.

Subsequently, Plaintiff initiated this action seeking a determination by the

Court that Angerson’s policy does not cover the injuries to J.V., pursuant to the

Declaratory Judgment Act codified at 28 U.S.C. § 2201. Defendants now seek

dismissal of this action arguing that there is not an actual case or controversy

before the Court. 

DISCUSSION:

The Declaratory Judgment Act (the “Act”) provides, in relevant part, as

follows: 

Creation of remedy 

(a) In a case of actual controversy within its jurisdiction, ... any

court of the United States, upon the filing of an appropriate

pleading, may declare the rights and other legal relations of any

interested party seeking such declaration, whether or not further

relief is or could be sought. Any such declaration shall have the

force and effect of a final judgment or decree and shall be

reviewable as such. 

28 U.S.C. § 2201(a). Although the Act expanded the remedies available to federal

courts, it did not alter the constitutional requirements of standing. See Skelly Oil

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4

Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950)(“Jurisdiction ...was not

altered by the Declaratory Judgment Act.”). Therefore, we must determine

whether an actual case or controversy is properly before us. Travelers Ins. Co. v.

Obusek, 72 F.3d 1148, 1153 (3d Cir. 1995)(citing Skelly Oil, 339 U.S. at 671)

(“The existence of a ‘case or controversy’ is a condition precedent to the proper

exercise of judicial power by a federal court and the Declaratory Judgment Act can

not relax that constitutional requirement.”).

The Supreme Court, in AETNA Life Ins. Co. of Hartford Conn. v. Haworth,

first addressed whether an insurance company could seek declaratory relief to

determine whether an insurance policy was obligated to pay benefits to an insured

before the insured instituted his own action. 300 U.S. 227 (1937). The Court held

that because the suit sought a final determination as to whether AETNA was

required to pay benefits to the insured, that it was a justiciable case or controversy. 

Id. at 244. 

The Third Circuit Court of Appeals more recently, in Travelers Ins. Co. v.

Obusek, held that an insurer could proceed in a declaratory relief, and that there

was a case or controversy, in an action seeking a declaration that the plaintiffinsurer was not required to pay for home attendant care services as a result of a

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2

 In support of their Motion, Defendants cite New Hampshire Ins. Co. v. Emerson, which

dismissed an action for declarative relief filed by an insurer. 1991 WL 7366 (E.D.Pa. Jan. 22,

1991). There, the court was fearful of interfering with a pending state tort action filed by the

federal court defendant. Here, there is no pending state court action with which the instant

action will interfere. Furthermore, to the extent that Emerson held that an insurer could not

preemptively seek declaratory relief prior to the insured demanding indemnification from the

insurer, we believe the case unpersuasive both because it was decided prior to Obusek and that it

fails to even cite to Haworth, which, in our view, controls here. 

5

long term care policy held by the defendant. 72 F.3d 1148 (3d Cir. 1995).2 Judge

McKee explained that in cases such as this we are to apply a three-part test to

determine whether an actual case or controversy exists: 

[t]o satisfy Article III's case or controversy requirement, an action

must present (1) a legal controversy that is real and not hypothetical,

(2) a legal controversy that affects an individual in a concrete manner

so as to provide the factual predicate for reasoned adjudication, and

(3) a legal controversy so as to sharpen the issues for judicial

resolution. 

Id. (quoting Armstrong World Industries, Inc. v. Adams, 961 F.2d 405, 411 (3d

Cir. 1992)(other internal citations omitted). As part of this determination, we are

to examine the ripeness of Plaintiff’s action. Id.; see also Insinger Mach. Co., Inc.,

1998 WL 748287 at *3(“There is a great overlap in the factors to determine the

justiciability and ripeness of a declaratory action.”). To determine whether an

action is ripe, we look at three factors: “adversity of the interest” between the

parties to the action, the “conclusiveness” of the declaratory judgment and “the

practical help, or utility” of the declaratory judgment. Id. We will consider each

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of these factors in turn.

A. Adversity of the Interest

“Parties' interests are adverse where harm will result if the declaratory

judgment is not entered.” Id. at 1154. While a plaintiff need not demonstrate to a

“mathematical certainty” that an injury will occur, plaintiffs must be able to

demonstrate that the “threat of future harm .. remains ‘real and immediate.’” Id.

(quoting Salvation Army v. Dep’t of Community Affairs, 919 F.2d 183, 192 (3d

Cir.1990)(other internal citations omitted). 

Here, Defendant J.V. has taken several steps, albeit short of initiating

litigation, to determine whether Angerson’s policy with the Plaintiff would cover

J.V.’s injuries. First, his mother contacted Farmers one week after the accident, on

April 23, 2004. Next, on May 19, 2004 Farmers learned that J.V. had retained

counsel. On July 23, 2004, Farmers’ claims adjuster Bob Phillips discussed a

claim against Angerson’s policy with J.V.’s attorney, a conversation that included

a full accounting of J.V.’s medical expenses (approximately $90,000 to $100,000). 

According to Phillips’ affidavit submitted along with Plaintiff’s brief, he discussed

with J.V.’s counsel the theories of liability under which Farmers would be liable to

pay for J.V.’s injuries. (See Aff. of Bob Philips in Opp. Mot. Dismiss ¶ 4). Given

these facts, it is quite reasonable for Farmers to believe that litigation instituted by

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J.V. against Angerson is inevitable in the event that it denies coverage for the

subject incident, and that one of the issues which would arise as a result is whether

the Farmers policy is in play. 

None of these allegations are denied by J.V., who merely argues that “No

writ of summons, demand, or complaint has been filed by any of the Defendants

named in this declaratory action.” (Def. Br. Supp. Mot. Dismiss at 4). However,

Plaintiff “need not wait until the harm has actually occurred to bring the action.” 

Obusek, 72 F.3d at 1154 (quoting Armstrong World Industries, Inc., 961 F.2d at

412). Requiring the harm to actually have occurred via the filing of a writ of

summons or some other formalized step would render the Act meaningless, as a

party would not be able to seek relief until after litigation was commenced against

it (or in this case, the potential insured). 

Therefore, we are satisfied that the litigants in this action have interests

sufficiently adverse to one another.

B. Conclusiveness of the Declaratory Judgment

Next, we must determine whether the entry of declaratory judgment would

be conclusive and dispositive of the dispute between the parties. At this step, we

look at whether a case or controversy exists. Id. at 1155 (“This portion of the

analysis is part and parcel of the constitutionally mandated inquiry into the

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3

 We note that in TIG Ins. Co., Judge Reed dismissed an action by an insurer for a

declaratory judgment. 1998 WL 748287. There, the court found that the action was not ripe

because the insured had declared in an affidavit that it was not covered by the insurer. Here,

even though J.V. has not initiated litigation, his counsel has repeatedly indicated to the Plaintiff

an intention to seek payments from it. Thus, TIG Ins. Co., is not relevant to our determination

because of J.V.’s repeated assertions through his counsel of an intention to implicate the

coverages within the Farmers policy. 

8

existence of a case or controversy.”). An integral part of this determination is

whether there exists a concrete set of facts on which the court can make findings. 

Id. (citing Armstrong World Industries, Inc., 961 F.2d at 412). 

Here, neither party disputes that the underlying events of the April 16, 2004

accident are sufficiently concrete. It is these facts, together with the policy

language, that will determine whether the policy covers J.V.’s injuries.3

 The facts

would be no more concrete if we dismissed this action and J.V. subsequently

initiated litigation against Angerson in order to implicate the Farmers policy here

in question, as the events of and surrounding the accident would remain

unchanged. See Pacific Coal & Oil Co., 312 U.S. at 270 (holding that it is

immaterial that frequently, in a declaratory judgment suit, the positions of the

parties in the conventional suit are reversed). 

Therefore, insofar as the controversy here is definite and concrete and

involves the legal relations of parties who have adverse interests, as it regards

questions of liability under, and the application of, Angerson’s homeowners’

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policy, Plaintiff’s complaint meets the second Obusek factor. We now move to the

final step of our analysis. See id.; Haworth, 300 U.S. at 227.

C. Utility of the Declaratory Judgment

Our inquiry under this prong is closely related to our inquiry in Part B,

above. Declaratory relief is appropriate only when it would be useful to the parties

in resolving their dispute. Obusek, 72 F.3d at 1156(“It must be of some practical

help to the parties.”). In Obusek, the court relied on the prior requests by the

insured for coverage from the insurer, in its determination that declaratory relief

would be of use to the parties. Since the insured there expressed repeatedly a

desire to be covered by the policy, and the insurer refused to pay, a determination

of whether the insured was covered conclusively resolved the dispute. Id. In the

case sub judice, we have little doubt that if we were to find for the Defendants this

determination would compel Farmers to defend and indemnify its insured in a

claim or action by J.V. against Angerson. Conversely, were the Plaintiff to be

successful on the merits, any claim or action by J.V. against Angerson would not

implicate the subject Farmers policy. Our determination would, in our view, be of

measurable benefit to the parties whichever way it cuts. 

D. Conclusion

It is evident that J.V. does not prefer litigating this aspect of his claim here,

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but that mere preference is not dispositive of this matter. Congress created the

Declaratory Judgment Act so that parties could “clarify legal relationships [and

make] responsible decisions about the future.” Id. Therefore, we find that the

instant action is sufficiently ripe and presents to the Court a concrete controversy

such that allowing this action to proceed on the merits will permanently alter the

rights of all parties. 

NOW, THEREFORE, THE FOLLOWING ORDER IS ENTERED:

1. Defendant John Angerson’s Motion to Dismiss (Rec. Doc. 2) as

concurred with by J.V. (Rec. Doc. 3) is DENIED.

s/ John E. Jones III 

John E. Jones III

United States District Judge

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