United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2015 Decided February 5, 2016

No. 14-7140

CINCINNATI INSURANCE COMPANY,

APPELLANT/CROSS-APPELLEE

v.

ALL PLUMBING, INC. SERVICE, PARTS, INSTALLATION, ET AL.,

APPELLEES/CROSS-APPELLANTS

Consolidated with 14-7151

Appeals from the United States District Court

for the District of Columbia

(No. 1:12-cv-00851)

Laura Anne Foggan argued the cause for appellant/crossappellee Cincinnati Insurance Company. With her on the briefs

was Thomas S. Garrett.

David M. Oppenheim argued the cause for appellee/crossappellant FDS Restaurant, Inc. With him on the briefs were

Jeffrey A. Berman and Stephen H. Ring. 

Before: ROGERS, TATEL and WILKINS, Circuit Judges.
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Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The Cincinnati Insurance Company

(“Cincinnati”) filed a complaint for a declaratory judgment that

it owes no duty to defend or indemnify claims brought against

its insured, All Plumbing, Inc. and its president (together, “All

Plumbing”), for sending unsolicited faxed advertisements

alleged to be in violation of the Telephone Consumer Protection

Act (“TCPA”), 47 U.S.C. § 227. The district court ruled that

Cincinnati could not assert any of its defenses to coverage under

the primary liability provision of the policy because it had failed

to reserve its rights but could assert such defenses under the

excess liability provision. The district court did not address the

asserted defenses under that provision, however. Cincinnati

appeals, and FDS Restaurant, Inc., which is suing All Plumbing

for violating the TCPA, cross-appeals. 

The court dismisses the appeals for lack of a final decision

as to all requested relief. See 28 U.S.C. § 1291. The decision

granting summary judgment to FDS did not resolve all of

Cincinnati’s rights and liabilities under the excess liability

provision of the policy, and that omission became more apparent

when the district court clarified that some coverage defenses

may be available under that provision. Absent a certification by

the district court pursuant to Federal Rule of Civil Procedure

54(b) that the rights and liabilities under the primary liability

provision of the policy are final and that there is “no just reason

for delay,” this court lacks jurisdiction. Because there is not a

final decision as to any party, the court need not address whether

the absence of entry of a judgment against All Plumbing, which

defaulted, also defeats finality.
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I.

Cincinnati issued a commercial insurance policy to All

Plumbing that provides for primary liability coverage and, in the

event that coverage is exhausted, excess liability coverage. The

primary liability provision covers “bodily injury” and “property

damage” subject to a $1,000 deductible under Part A, and

“personal and advertising injury” under Part B. The excess

liability provision follows the terms and conditions of the

primary liability provision. The policy covers claims arising

from March 3, 2006 to March 3, 2007. 

Two class actions were filed against All Plumbing in the

D.C. Superior Court for allegedly sending over 10,000

unsolicited faxes to businesses located in Washington, D.C. and

Northern Virginia, in violation of the TCPA. The TCPA

prohibits sending unsolicited advertisements by fax machine,

except in limited circumstances, see 47 U.S.C. § 227(b)(1)(C),

and recipients are entitled to $ 500 in statutory damages for each

violation, an amount that may be trebled if the violation was

willful or knowing, see id. § 227(b)(3). The first TCPA lawsuit

was filed by Love the Beer, Inc., on September 14, 2010. By

letter of December 2, 2011, Cincinnati notified All Plumbing

that, subject to a full and complete reservation of rights, it would

defend the lawsuit. The letter explained why the policy might

not cover TCPA claims. The second lawsuit, virtually identical

to the first, was filed by FDS on December 2, 2011. The same

attorney represented the named plaintiffs in both class actions. 

On December 22, Love the Beer moved to dismiss its class

claims. Cincinnati began defending the FDS action on All

Plumbing’s behalf, but did not notify All Plumbing of its

reservation of rights. Instead, Cincinnati informed FDS that

there may not be coverage for its claims against All Plumbing. 
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On May 21, 2012, Cincinnati filed a complaint in the

federal district court for a declaratory judgment that it owes no

duty to defend All Plumbing from the TCPA claims brought by

FDS or to indemnify those claims should FDS prevail in the

underlying lawsuit. FDS was named in the complaint. 

Cincinnati asserted, in part, that the excess liability provision

does not cover the TCPA claims because they do not arise from

an “occurrence” and also are not “personal and advertising

injury.” It also asserted that the claims come within policy

exclusions, including the “expected or intended” exclusion, the

“knowing violation of the rights of another” exclusion, and the

“underlying insurance” exclusion. Finally, it asserted that the

insured had substantially and materially breached the policy’s

notice provisions. See Compl. ¶¶ 32–39.

No party responded to the complaint, prompting the district

court to enter a default against FDS and All Plumbing. Upon

vacatur of the default at FDS’s request, FDS filed a

counterclaim for a declaratory judgment that its claims against

All Plumbing are covered under both the primary and excess

liability provisions of the policy. Cincinnati and FDS filed

motions for summary judgment, with both contesting whether

TCPA claims are “property damage” or “personal or advertising

injury” under the policy. Alternatively, Cincinnati argued that

All Plumbing’s failure to provide it with notice of the FDS

lawsuit bars coverage under the policy, and FDS argued that

Cincinnati had waived any defenses to coverage. 

The district court granted summary judgment to FDS on the

ground that Cincinnati had not renewed its reservation of rights

in the FDS action. See Cincinnati Ins. Co. v. All Plumbing, Inc.

(Cincinnati I), 983 F. Supp. 2d 162, 165–69 (D.D.C. 2013). 

Cincinnati moved for reconsideration, in part arguing that its

reservation of rights in the Love the Beer case should also apply

to the FDS action. It also sought clarification that even if a
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failure to reserve its rights precluded asserting coverage

defenses under the primary liability provision, it should still be

permitted to invoke that provision’s deductible under Part A and

assert any coverage defenses under the excess liability

provision, because any duty to defend under that provision does

not arise until the limits of the primary liability provision are

exhausted. The district court denied reconsideration but

clarified that Cincinnati is not precluded from asserting either

the $1,000 deductible or any coverage defenses under the excess

liability provision. Cincinnati Ins. Co. v. All Plumbing, Inc.

(Cincinnati II), 64 F. Supp. 3d 69, 75–81 (D.D.C. 2014). The

district court also denied Cincinnati’s request for a status

conference and clarification regarding the finality of the district

court’s decisions, ruling that its decisions granting summary

judgment and clarification were final and appealable.

Cincinnati filed a notice of appeal, and FDS filed a crossappeal. Thereafter, Cincinnati moved to dismiss the appeals for

lack of appellate jurisdiction because the district court left

unresolved some relief sought in its declaratory judgment

complaint.

II.

This court has jurisdiction over “final decisions” of the

district court. 28 U.S.C. § 1291. A decision is final only if it

“ends the litigation on the merits and leaves nothing for the

court to do but execute the judgment.” Van Cauwenberghe v.

Biard, 486 U.S. 517, 521–22 (1988) (quoting Caitlin v. United

States, 324 U.S. 229, 233 (1945)); see also Blue v. D.C. Pub.

Sch., 764 F.3d 11, 15 (D.C. Cir. 2014); United States v. Philip

Morris USA Inc., 686 F.3d 839, 845–46 (D.C. Cir. 2012). This

approach avoids piecemeal appellate review and also “protects

the district court’s independence, prevents multiple, costly, and

harassing appeals, and advances efficient judicial
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administration.” Blue, 764 F.3d at 15; accord Robinson-Reeder

v. Am. Council on Educ., 571 F.3d 1333, 1336–37 (D.C. Cir.

2009). Federal Rule of Civil Procedure 54(b) provides,

however, that where a case involves multiple claims or multiple

parties, 

the [district] court may direct entry of a final judgment

as to one or more, but fewer than all, claims or parties

only if the court expressly determines that there is no

just reason for delay. Otherwise, any order or other

decision, however designated, that adjudicates fewer

than all the claims or the rights and liabilities of fewer

than all the parties does not end the action as to any of

the claims or parties and may be revised at any time

before the entry of a judgment adjudicating all the

claims and all the parties’ rights and liabilities.

See also Blue, 764 F.3d at 15; Robinson-Reeder, 571 F.3d at

1337; Turtle v. Inst. for Res. Mgmt., 475 F.2d 925, 925–26 (D.C.

Cir. 1973). Because the district court did not invoke Rule 54(b),

its decisions granting summary judgment and granting

clarification are final only if they adjudicated all of the rights

and liabilities at issue in the declaratory judgment action.

Throughout the declaratory judgment proceedings

Cincinnati has argued that neither the primary nor excess

liability provisions could be read to cover the TCPA claims in

the FDS lawsuit. See Compl. ¶¶ 25–39; Cincinnati’s Br. in

Supp. Summ. J. 19–36. For example, Cincinnati argued that the

TCPA claims are not covered because they do not arise from

“personal and advertising injury” as that phrase is defined in the

policy. The district court initially granted summary judgment to

FDS, upon concluding it had no reason to address such

arguments, because Cincinnati’s failure to “properly reserve its

rights . . . precludes Cincinnati Insurance from asserting any
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defenses to coverage of the FDS action.” Cincinnati I, 983

F. Supp. 2d at 169. It later clarified, however, that this decision

applied only to the primary liability provision of the policy. See

Cincinnati II, 64 F. Supp. 3d at 80–81. The district court’s

decisions preclude Cincinnati from claiming that the primary

liability provision does not cover the TCPA claims in the FDS

lawsuit. See Cincinnati I, 983 F. Supp. 2d at 165. But neither

decision resolves fully Cincinnati’s asserted defenses under the

excess liability provision. The district court ruled that

Cincinnati may assert coverage defenses under this provision,

see Cincinnati II, 64 F. Supp. 3d at 80–81, without addressing

the merits of the defenses that Cincinnati asserted in its

complaint and thus without deciding whether Cincinnati can

disclaim coverage of the TCPA claims under the excess liability

provision. Failing to address those issues in Cincinnati’s

complaint renders the district court’s decisions akin to grants of

partial summary judgment, to FDS and to Cincinnati, that

resolve only the threshold issue of the defenses Cincinnati

waived by failing to reserve its rights, and such interlocutory

decisions are not final under 28 U.S.C. § 1291. See Liberty Mut.

Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976); Judicial Watch,

Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363, 371 (D.C. Cir.

2006); cf. Alaska v. Fed. Energy Regulatory Comm’n, 980 F.2d

761, 763–64 (D.C. Cir. 1992).

FDS offers, assuming that there are unresolved issues

relating to coverage under the excess liability provision, that this

court has jurisdiction because it may never be necessary to

resolve the undecided issues. FDS first suggests that any

argument under the excess liability provision is irrelevant

because Cincinnati also waived any policy limit that might

provide a cap on its total liability under the primary liability

provision. If coverage under the primary liability provision is

unlimited, then there would be no need to tap into coverage

under the excess liability provision or resolve the scope of that
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coverage, effectively rendering the district court’s decisions

final. But reading the district court’s decisions in this way,

merely because Cincinnati never asked the district court to

clarify that it had not waived policy limits under the primary

liability provision, defies reason. In granting summary

judgment, the district court neither stated nor implied that

Cincinnati waived its policy limits. See Cincinnati I, 983

F. Supp. 2d at 167. Instead, the district court focused on

whether Cincinnati was precluded from disclaiming coverage

altogether, not on the total amount Cincinnati must pay if the

TCPA claims are covered by the policy. Under FDS’s reading,

the district court would have rejected, sub silentio, the wellrecognized distinction between asserting policy limits and

asserting defenses to liability. See COUCH ON INSURANCE

§ 202:74 (3d ed. 2013); Faber v. Roelofs, 250 N.W.2d 817, 825

(Minn. 1977). FDS never argued in the district court that

Cincinnati’s failure to reserve its rights also precluded it from

invoking its policy limits. Moreover, FDS’s reading would

render advisory the district court’s decision clarifying its

summary judgment decision and require this court to overlook

authority cited by the district court recognizing that an insurer’s

failure to reserve its rights does not mean the policy is without

limit on the coverage it provides. See Cincinnati II, 64

F. Supp. 3d at 79–81. Had the district court understood its

decision granting summary judgment to preclude Cincinnati

from relying on its policy limits, there would have been no need

for it to clarify whether defenses are available under the excess

liability provision.

Second, FDS suggests, no more persuasively, that this court

has jurisdiction because the district court has finally resolved the

only question necessary for the underlying TCPA litigation to

proceed, namely, whether Cincinnati must defend the lawsuit. 

The question of how much Cincinnati will ultimately have to

pay remains conceptually distinct. See Salus Corp. v. Cont’l
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Cas. Co., 478 A.2d 1067, 1069–70 (D.C. 1984). Further, FDS

suggests that deciding more, including whether the TCPA

claims are covered under the excess liability provision, would

not only have been unnecessary but premature. If the parties

settle their Superior Court class action litigation for less than the

primary liability provision policy limits, then deciding issues

relating to the excess liability provision would become

unnecessary. Even without such a settlement, resolving some of

the issues posed by Cincinnati’s request for declaratory

judgment might prove easier after the class action litigation is

completed, particularly as “the duty to indemnify, i.e., ultimate

liability, depends upon the true facts” and not the allegations in

FDS’s complaint, see Salus, 478 A.2d at 1069–70. The district

court did not indicate that these were the reasons it declined to

address fully the relief sought by Cincinnati regarding the excess

liability provision. So long as “other relief remains to be

resolved,” a district court decision is not final under 28 U.S.C.

§ 1291. See Liberty Mut., 424 U.S. at 744. 

Moreover, had the parties considered the district court’s

determinations about the primary liability provision to be final

and wanted review by this court, they might have asked the

district court to invoke Rule 54(b), see Blue, 764 F.3d at 19;

Robinson-Reeder, 571 F.3d at 1340, and justified that request by

explaining their concerns about prematurely reviewing the

remaining issues related to the excess liability. Based on these

same concerns, they might have asked the district court to delay

resolving the excess liability issues until FDS’s TCPA litigation

is completed. In response, the district court might have

exercised its discretion to “stay a declaratory judgment action

during the pendency of [a] parallel state court proceeding[],”

Wilton v. Seven Falls Co., 515 U.S. 277, 279, 288–90 (1995),

which would be immediately appealable, see id. at 280–81

(citing Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp.,

460 U.S. 1, 10 (1983)). Because they made no such requests of
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the district court, and the district court has not finally resolved

Cincinnati’s rights and liabilities under the excess liability

provision, this court lacks jurisdiction to consider either

Cincinnati’s appeal or FDS’s cross-appeal. 

The court, thus, has no occasion to address whether it lacks

jurisdiction because the district court may have left unresolved

questions of whether the primary liability provision’s deductible

applies on a per claim, per claimant or per occurrence basis. 

Nor need the court resolve whether the absence of the entry of

judgment in favor of All Plumbing separately defeats finality. 

Although All Plumbing’s interests are aligned with FDS for the

purposes of Cincinnati’s declaratory judgment action such that

the need for a consistent judgment across defendants would

require All Plumbing to share in FDS’s victory in the initial

summary judgment decision, see Carter v. District of Columbia,

795 F.2d 116, 137–38 (D.C. Cir. 1986), there is no final

judgment with respect to any party, including FDS.

Accordingly, in view of Cincinnati’s unresolved rights and

liabilities under the excess liability provision, there is no final

decision under 28 U.S.C. § 1291, and the appeal and crossappeal are dismissed for lack of jurisdiction.