PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-1498

SELECTIVE INSURANCE COMPANY OF AMERICA,

Defendant - Appellant,

v.

WESTFIELD INSURANCE COMPANY,

Plaintiff - Appellee,

v.

ZURICH AMERICAN INSURANCE COMPANY; WEAVER COOKE 

CONSTRUCTION, LLC,

Defendants - Appellees,

and

PENN NATIONAL INSURANCE COMPANY,

Defendant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Raleigh. W. Earl Britt, Senior District Judge. (4:15−cv−00169−BR)

Argued: May 5, 2023 Decided: July 12, 2023

Before RUSHING and BENJAMIN, Circuit Judges, and KEENAN, Senior Circuit Judge.

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Dismissed by published opinion. Senior Judge Keenan wrote the opinion, in which Judge 

Rushing and Judge Benjamin joined.

ARGUED: Matthew Adams Abee, NELSON MULLINS RILEY & SCARBOROUGH 

LLP, Columbia, South Carolina, for Appellant. Morgan Stuart Templeton, WALL 

TEMPLETON & HALDRUP, P.A., Charleston, South Carolina; Michael Terry Medford, 

MANNING, FULTON & SKINNER, PA, Raleigh, North Carolina, for Appellees. ON 

BRIEF: Robert C. Calamari, NELSON MULLINS RILEY & SCARBOROUGH LLP, 

Myrtle Beach, South Carolina, for Appellant. Sanford W. Thompson, IV, SANFORD 

THOMPSON, PLLC, Raleigh, North Carolina, for Appellee Weaver Cooke Construction, 

LLC. J. Mark Langdon, WALL TEMPLETON & HALDRUP, P.A., Raleigh, North 

Carolina, for Appellee Westfield Insurance Company. Phillip E. Reeves, Greenville, South 

Carolina, James M. Dedman, IV, GALLIVAN, WHITE, & BOYD, P.A., Charlotte, North 

Carolina, for Appellee Zurich Insurance Company.

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BARBARA MILANO KEENAN, Senior Circuit Judge:

This dispute involves several insurers and one defendant insurer’s alleged duty to 

defend a lawsuit brought against a general contractor of a residential building project. The 

district court entered partial summary judgment, holding that the defendant insurer had a 

duty to defend the general contractor in the underlying action for construction defects. The 

court also issued a stay of other issues raised by the parties, and administratively closed the 

case. After the defendant insurer filed the present appeal, the underlying action was

resolved in a settlement agreement.

We conclude that we lack jurisdiction to consider the present interlocutory appeal 

challenging the defendant insurer’s duty to defend the general contractor. Therefore, we 

dismiss the appeal. 

I.

In 2006, Weaver Cooke Construction, LLC (Weaver Cooke) entered into a contract 

with New Bern Riverfront Development, LLC (New Bern) to serve as general contractor 

for a condominium complex to be built in North Carolina (the project). Weaver Cooke 

later executed contracts with various subcontractors to work on the project, including one 

contract with William H. Dail d/b/a/ DD Plumbing Company (DD Plumbing). DD 

Plumbing was responsible for installing piping and plumbing fixtures for the project, 

including kitchen and bath faucets. In 2009, New Bern, which had filed for bankruptcy,

initiated an adversary proceeding in bankruptcy court against Weaver Cooke and other 

defendants alleging defective construction on the project (the underlying action).

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Weaver Cooke was a “named insured” under two commercial liability policies, one 

issued by Westfield Insurance Company (Westfield) and another by Zurich American 

Insurance Company (Zurich). DD Plumbing was a “named insured” under a commercial 

liability policy issued by Selective Insurance Company of America (Selective). When 

Weaver Cooke entered into its contract with DD Plumbing, Weaver Cooke became an

“additional insured” under DD Plumbing’s policy with Selective (the Selective policy).

The Selective policy provided coverage for property damage, stating that Selective 

would “pay those sums that the insured becomes legally obligated to pay as damages 

because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” In the 

policy, Selective further acknowledged that it had a “duty to defend the insured against any 

‘suit’ seeking those damages.”

After New Bern filed the underlying action, Weaver Cooke and Westfield requested 

that Selective provide a defense for Weaver Cooke as an “additional insured” under the 

Selective policy. Although the parties dispute the details of the timing and notice of the

requests to Selective, it is undisputed that Selective was notified of the request in 

September 2013. Selective did not comply with the request to defend Weaver Cooke in 

the underlying action.

Westfield filed the present action in the Eastern District of North Carolina against 

Selective, Weaver Cooke, and Zurich,

1 seeking, among other alternative relief: (1) a

1 Westfield also named Penn National Insurance Company (Penn National) as a 

defendant. Penn National is not a party to this appeal. 

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declaration that Selective had a duty to defend Weaver Cooke in the pending underlying 

action; and (2) “equitable subrogation/contribution” against Selective for reimbursement 

of defense costs that Westfield had incurred in defending Weaver Cooke in the underlying 

action. Zurich, which also had been defending Weaver Cooke in the underlying action, 

filed similar crossclaims against Selective. Finally, Weaver Cooke filed a counterclaim 

against Selective alleging statutory claims of unfair trade practices under N.C. Gen. Stat. 

§§ 58–63–15(11), based on Selective’s claim settlement practices. Weaver Cooke also 

asserted a right to indemnification; the district court stayed the indemnification claim 

pending the resolution of factual issues in the underlying action and further order of the 

court.

After completing discovery on the duty to defend and unfair trade practices claims, 

the parties filed cross-motions for summary judgment. Upon reviewing the record, the 

district court held that the underlying action “implicate[d] . . . DD Plumbing’s work,” 

which possibly had caused damage to interior finishes on the project as a result of water 

intrusion or waste discharge. The court concluded that this constituted “property damage” 

under the Selective policy, and, thus, that Selective had a duty to defend Weaver Cooke as 

an additional insured under the policy. 

The district court accordingly awarded partial summary judgment in favor of 

Westfield, Zurich, and Weaver Cooke on the duty to defend issue. The court denied both 

Weaver Cooke’s and Selective’s cross-motions for summary judgment on Weaver Cooke’s 

unfair trade practices claims, holding that disputed facts precluded entry of summary 

judgment at that time. The district court further concluded that the “issue of damages 

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regarding the duty to defend[,] and liability and damages on the remaining unfair trade 

practices claims,” would be “stayed until the [u]nderlying [a]ction is resolved.” The court 

directed that the case be administratively closed subject to any party’s motion to dissolve 

the stay after conclusion of the underlying action. No such motion has been filed.

Selective filed the present appeal in this Court, asserting that the district court erred 

in concluding that Selective owed a duty to defend because the allegations in the underlying 

action involved only “non-covered economic damages” and suggested only a need for 

“further investigation” regarding potential property damage resulting from DD Plumbing’s 

work.

2

 Several months after Selective filed the present appeal, the bankruptcy court issued 

an order approving a settlement agreement reached in the underlying action. As part of 

that settlement agreement, the parties resolved the defective construction claim alleged by 

New Bern against Weaver Cooke and other parties. The bankruptcy court thereafter 

entered a final decree and closed the underlying action. 

II.

Before we can review the merits of Selective’s argument, we first must determine 

whether we have jurisdiction over this appeal. Williamson v. Stirling, 912 F.3d 154, 168 

2 Selective also argues on appeal that the district court erred in failing to award 

Selective summary judgment on the unfair trade practices claims, contending that we 

should assert “pendant appellate jurisdiction” over this issue because it is “inextricably

intertwined” with the duty to defend issue. See Rux v. Republic of Sudan, 461 F.3d 461, 

475 (4th Cir. 2006) (citation omitted). However, based on our conclusion that we lack 

jurisdiction over the duty to defend issue, we necessarily do not have pendant jurisdiction 

to consider Selective’s additional argument regarding the unfair trade practices claim.

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(4th Cir. 2018) (recognizing an “independent obligation to verify the existence of appellate 

jurisdiction”). Selective, agreeing that the district court did not enter a final judgment in 

the present case, contends that we have jurisdiction under 28 U.S.C. § 1292(a)(1), which 

permits appeals of interlocutory orders granting injunctions.3

 Citing the Third Circuit’s 

decision in Ramara, Inc. v. Westfield Ins., 814 F.3d 660, 669 (3d Cir. 2016), Selective 

argues that the district court’s partial award of summary judgment against Selective 

effectively is “an injunction requiring [Selective] to provide a defense” to Weaver Cooke 

in the underlying action. We disagree that Section 1292(a)(1) provides a basis for 

jurisdiction here.

As an initial matter, we agree with Selective that the district court has not entered a 

final judgment that would allow review of this appeal under 28 U.S.C. § 1291.4

 See 

Kinsale Ins. v. JDBC Holdings, Inc., 31 F.4th 870, 873 (4th Cir. 2022) (explaining that a 

final judgment “ends the litigation on the merits and leaves nothing for the court to do but 

3 The appellees, Weaver Cooke, Westfield, and Zurich, likewise maintain that we 

have jurisdiction to decide the duty to defend issue under to 28 U.S.C. 1292(a)(1).

4 We observe that in other instances, parties disputing a district court’s holding 

before final judgment concerning an insurer’s duty to defend have obtained certification 

for immediate appeal under Federal Rule of Civil Procedure 54(b). See Res. Bankshares 

Corp. v. St. Paul Mercury Ins., 407 F.3d 631 (4th Cir. 2005) (deciding interlocutory appeal 

after district court entered certification under Rule 54(b) in 323 F. Supp. 2d 709, 723 (E.D. 

Va. 2004)); Ramsay v. OmniBank, 215 F.3d 503, 504 (5th Cir. 2000). Rule 54(b) permits 

a district court to certify a judgment for appeal “[w]hen an action presents more than one 

claim of relief,” and the court directs “entry of a final judgment as to one or more, but fewer 

than all, claims,” so long as “the court expressly determines” there “is no just reason for 

delay[ing]” the appeal. Fed. R. Civ. P. 54(b); see Kinsale, 31 F.4th at 873 (discussing Rule 

54(b)); Penn-America Ins. v. Mapp, 521 F.3d 290, 296 (4th Cir. 2008) (same). However, 

Selective did not seek, and the district court did not direct entry of, such a certification in 

the present case.

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execute the judgment” (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). Issues 

of damages, as well as the unfair trade practices claims and indemnification claim, remain 

pending in the district court. See id. at 873 (explaining that when damages have not been 

assessed, a judgment is not final (citing Liberty Mut. Ins. v. Wetzel, 424 U.S. 737, 744 

(1976)); see also Penn-America Ins. v. Mapp, 521 F.3d 290, 296 (4th Cir. 2008) (explaining 

that administrative closure of pending claims by the district court did not “convert” the 

“otherwise non-final [judgment] into a final judgment” under Section 1291). 

We therefore turn to address 28 U.S.C. § 1292(a)(1). This statutory exception to 

the final judgment rule confers jurisdiction on courts of appeal to review interlocutory 

orders “granting, continuing, modifying, refusing or dissolving injunctions.” 28 U.S.C. 

§ 1292(a)(1); see Carson v. Am. Brands, Inc., 450 U.S. 79, 82 (1981). Although the district 

court’s judgment in the present case was not styled as an “injunction,” the question whether 

an order “amounts to an injunction” requires that we look to “the practical effect of the 

order rather than the label ascribed to it.” U.S. ex rel. Lutz v. United States, 853 F.3d 131, 

139 (4th Cir. 2017). Generally, an injunction commands or prevents a specified action. 

See Injunction, Black’s Law Dictionary (11th ed. 2019); see also U.S. ex rel. Rahman v. 

Oncology Assocs., P.C., 198 F.3d 502, 507 (4th Cir. 1999) (explaining that to qualify as 

injunctive relief, an order must “prohibit or command specific conduct”).

To be immediately appealable under Section 1292(a)(1), “a litigant must show more 

than that the order has the practical effect” of commanding or preventing action. Carson, 

450 U.S. at 83 (explaining that we construe Section 1292(a)(1) “narrowly,” because 

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judgment rule”). We have said that an appealable injunctive order under Section 

1292(a)(1) is one that “(1) may have a ‘serious, perhaps irreparable consequence’ and (2) 

can only be ‘effectually challenged’ through immediate appeal,” rather than upon final 

judgment. Lutz, 853 F.3d at 139 (quoting Carson, 450 U.S. at 84).5

 Without satisfying 

these elements, “the general congressional policy against piecemeal review” precludes our 

jurisdiction to consider an interlocutory appeal under Section 1292(a)(1). Carson, 450 U.S. 

at 84. 

In the present case, we will assume, without deciding, that at the time of its entry, 

the district court’s order was in the nature of an injunction in that the order required 

Selective to take prospective action in the underlying litigation. See James River Ins. v. 

Ultratec Special Effects Inc., 22 F.4th 1246, 1251, 1252-53 (11th Cir. 2022) (holding order 

appealable when district court ordered insurer “to continue defending” the insureds), 

Ramara, 814 F.3d at 668-69 (same, when district court ordered insurer to “prospectively 

. . . provide defense” to insured in ongoing action). However, because the underlying 

action now has been resolved, there is no possible present or prospective requirement for 

Selective to act by providing a defense to Weaver Cooke. Instead, any breach by Selective 

in failing to provide Weaver Cooke a defense can be remedied at this juncture by an award 

of damages. 

5 In Lutz, we held that an order freezing a party’s assets during litigation was not 

immediately appealable under Section 1292(a)(1) because, although the party was 

prevented from disposing of its property, the party’s property rights were not permanently 

affected at that time and the party could “obtain complete relief after final judgment.” Id.

at 140.

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The district court’s holding that Selective had a duty to defend thus does not 

presently produce any immediate or pressing event. See Carson, 450 U.S. at 84. And this 

appeal does not present an issue requiring consideration separate from the pending issues 

in this case. See Lutz, 853 F.3d at 139; see also Carson, 450 U.S. at 84-85. We can review 

after final judgment the question of Selective’s duty to defend without ensuing 

consequence. Therefore, we conclude that Section 1292(a)(1) does not provide a 

jurisdictional basis for consideration of this appeal. Lutz, 853 F.3d at 140 (explaining that 

there was “no harm in preserving the status quo” and that the appellants could “obtain 

complete relief after final judgment”); see Carson, 450 U.S. at 84-85.

Our conclusion is not altered by Selective’s reliance on the Third Circuit’s decision 

in Ramara. 814 F.3d 660. There, an insured sought a declaratory judgment that the 

defendant insurer owed a duty to defend and a duty to indemnify the insured in an 

underlying suit seeking damages for injuries caused by a construction accident. Id. at 665, 

669, 671. The district court awarded the insured partial summary judgment, ordering that 

the insurer “prospectively” provide a defense in the underlying action while withholding a 

ruling on the indemnification claim until later in the litigation. Id. at 668, 669 n.3.

The Third Circuit held that it had jurisdiction to consider an appeal from this nonfinal order under Section 1292(a)(1). Id. at 670-672. The court explained that the district 

court’s order holding that the insurer had a duty to defend a party in the underlying action 

“granted forward-looking,” “prospective” relief, which was “immediately appealable.” Id.

This relief thus was injunctive in nature and had not been affected by any actions of the 

parties pending appeal.

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The same cannot be said in the present case. While the relief granted in the district 

court’s order originally may have been prospective in nature, the resolution of the 

underlying action has eliminated from that order any forward-looking mandate. Thus, the 

order before us in this appeal currently lacks the character of an injunction and does not 

require us to consider any question separate from issues that may be appealed after entry 

of a final judgment in the district court. 

We therefore conclude that, given the resolution of the underlying action, the district 

court’s award of partial summary judgment in favor of the defendants on Selective’s duty 

to defend is not appealable under Section 1292(a)(1). We are able to consider this question 

along with the related issue of damages on appeal of a final judgment, furthering our goal 

of avoiding “[p]iecemeal” appeals in the absence of any immediate or pressing 

consequence. See Lutz, 853 F.3d at 140; Carson, 450 U.S. at 84. 

III.

For these reasons, we conclude that we lack jurisdiction to consider Selective’s 

appeal. Accordingly, we dismiss the appeal. 

DISMISSED

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