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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PENNSYLVANIA NATIONAL MUTUAL )

CASUALTY INSURANCE CO., )

Plaintiff, ) 

v. ) CIVIL ACTION NO. 13-00066-KD-M

)

ST. CATHERINE OF SIENA PARISH, et al., )

Defendants. ) 

 ORDER

This matter is before the Court on Defendant St. Catherine’s Motion to Dismiss and 

Abstain (Doc. 69) and Pennsylvania National’s Response (Doc. 94).

I. Background

This is a declaratory judgment action1 to determine whether Pennsylvania National (the 

insurer) has a duty to indemnify Kiker (its insured) for the November 2, 2012 $350,000 state 

court verdict entered against Kiker and in favor of St. Catherine on St. Catherine’s breach of 

contract claim.

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 (Docs. 1, 17). Specifically, Pennsylvania National seeks a determination by 

this Court that St. Catherine’s breach of contract and faulty workmanship claims against Kiker 

do not constitute an “occurrence” under the relevant commercial general liability policy (“CGL 

policy”) and that the CGL policy excludes damages for bodily injury and property damage. St. 

 1 The Complaint alleges federal diversity jurisdiction. (Doc. 17 at 2).

2 St. Catherine of Sienna Parish v. Kiker Corporation, Thompson Engineering, Inc., Thompson 

Engineering Testing, Inc., and Damon Lett Roofing, Circuit Court of Mobile County, Alabama (CV 2010-900578). 

This dispute relates to replacement of St. Catherine’s roof (after Kiker replaced the roof with a “40 year roof,” it 

began leaking 4 years later) which prompted St. Catherine to sue Kiker in state court for negligence, wantonness, 

breach of contract, misrepresentation and suppression. Pennsylvania National defended Kiker under a reservation 

of rights, advising Kiker there was no coverage under the terms of the insurance policy for breach of contract. All 

claims were dismissed except for negligence and breach of contract, which proceeded to trial. At trial, the court 

granted Kiker’s motion for judgment as a matter of law on the negligence claim, while the jury resolved the breach 

of contract claim (finding in favor of St. Catherine in the amount of $350,000). Thereafter, Kiker and St. Catherine 

appealed the state court jury verdict, which remains pending on appeal before the Alabama Supreme Court.

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Catherine seeks dismissal of this action, on the following specific grounds: 1) Pennsylvania 

National’s indemnification claims are premature (not ripe); 2) Pennsylvania National lacks 

standing; and/or 3) a stay should be entered, per Colorado River abstention, given the pending 

appeal.

II. Discussion

At the outset, while St. Catherine’s motion -- styled as a Rule 12(b)(1) motion to dismiss 

due to lack of subject matter jurisdiction -- is technically untimely,3 the Court finds that the 

motion is not limited to this issue, as St. Catherine has raised the broader issues of standing, 

ripeness, and abstention. Nevertheless, this Court can assess the presence (or absence) of 

subject matter jurisdiction at any given time. 

The standard of review for a Rule 12(b)(1) motion to dismiss for lack of subject-matter 

jurisdiction is the same as the standard of review for a Rule 12(b)(6) motion to dismiss attacking 

the legal sufficiency of the complaint. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 

F.3d 1271, 1279 (11th Cir. 2009). The Supreme Court explained that “[t]o survive a motion to 

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting and 

explaining its decision in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To be 

plausible on its face, the claim must contain enough facts that “allow[ ] the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 

 3 Per Rule 12(b)(1), “a motion asserting [this]...defense [of lack of subject matter jurisdiction] must be 

made before pleading if a responsive pleading is allowed.” St. Catherine filed its Answer in March 2013, and did not 

move to dismiss for lack of subject matter jurisdiction before doing so. (Doc. 28 at 3-5). See, e.g., U.S. ex rel 

Powell v. American InterContinental Univ., Inc., 2012 WL 2885356, *2 (N.D. Ga. Jul. 12, 2012). 

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678.

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In considering a 12(b) motion, the court is primarily limited to the face of the complaint 

and its attachments. “However, where the plaintiff refers to certain documents in the complaint 

and those documents are central to the plaintiff's claim, then the Court may consider the 

documents part of the pleadings ...” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 

1364, 1368-1369 (11th Cir. 1997) (internal citations omitted). Several circumstances exist in 

which a court may consider matters outside of the pleadings in ruling on a 12(b) motion without 

converting the motion to a motion for summary judgment. Davis v. Self, 2013 WL 754853, *2 

(N.D. Ala. Feb. 25, 2013). One of these circumstances arises when facts or documents are 

subject to judicial notice. Fed. R. Evid. 201(a)-(d); La Grasta v. First Union Securities, Inc., 

358 F.3d 840, 845 (11th Cir. 2004) (“In analyzing the sufficiency of the complaint, we limit our 

consideration to the well-pleaded factual allegations, documents central to or referenced in the 

complaint, and matters judicially noticed[]”).

The considerations in this case, as noted below, are influenced by the status of underlying 

state court case from the Mobile County Circuit Court – from which a state court judgment (via 

jury verdict) has issued. Because this case (and the related documents) are part of the public 

record, to the extent necessary for resolution of this motion to dismiss, the Court takes judicial 

notice of same without converting the motion into one for summary judgment. See, e.g.,

Universal Express, Inc. v. U.S. S.E.C., 177 Fed. Appx. 52, 53 (11th Cir. 2006) (“A district court 

may take judicial notice of certain facts without converting a motion to dismiss into a motion for 

 4 Additionally, “[a]t the pleading stage, general factual allegations of injury resulting from the defendant's 

conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts 

that are necessary to support the claim.” Lujan, 504 U.S. at 561. For a motion to dismiss, standing is evaluated 

based on the facts alleged in the complaint, and the court may not “speculate concerning the existence of standing or 

piece together support for the plaintiff.” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001).

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summary judgment ... Public records are among the permissible facts that a district court may 

consider.”); United States v. Jones, 29 F.3d 1549, 1553 (11th Cir.1994) (“a court may take notice 

of another court's order ... for the limited purpose of recognizing the ‘judicial act’ that the order 

represents or the subject matter of the litigation”).

A. Standing

In order for a federal court to have subject matter jurisdiction to hear an action, there 

must be an actual case or controversy. U.S. Const. Art. III, § 2, cl. 1; Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 559 (1992). “A party has standing to bring an action under the 

Declaratory Judgment Act if an actual controversy exists ... which is the same as an Article III 

case or controversy.” Arris Group, Inc. v. British Telecomm. PLC, 639 F.3d 1368, 1373 (11th

Cir. 2011) (internal quotation marks omitted). A Declaratory Judgment Act plaintiff must 

allege facts from which it appears “there is a sufficient likelihood that he will be affected by the 

allegedly unlawful conduct in the future.” Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 

1234, 1265 (11th Cir. 2001). See also Bowen v. First Family Fin. Serv., Inc., 233 F.3d 1331, 

1340 (11th Cir. 2000) (same); Malowney v. Fed. Collection Deposit Group, 193 F.3d 1342, 1346 

(11th Cir. 1999) (noting that a plaintiff seeking declaratory relief must allege facts from which it 

appears there is a substantial likelihood that he will suffer injury in the future). Specifically, in 

a declaratory judgment action, “the question in each case is whether the facts alleged, under all 

the circumstances, show that there is a substantial controversy, between parties having adverse 

legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory 

judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007). See also e.g., Lee 

v. Bethesda Hosp., Inc., 2013 WL 6480066, *2 (S.D. Fla. Dec. 10, 2013) (citing MedImmune

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and holding that “[]if the ‘facts alleged, under all the circumstances, show that there is a 

substantial controversy, between parties having adverse legal interests, of sufficient immediacy 

and reality,’ then a case or controversy exists[]”). 

Additionally, the Declaratory Judgment Act provides that a court “may declare the rights 

and other legal relations of any interested party seeking this declaration.” 28 U.S.C. § 2201. 

The Supreme Court has characterized the Declaratory Judgment Act as an enabling Act, 

conferring “a discretion on the courts rather than an absolute right upon the litigant.” Wilton v. 

Seven Falls Co., 515 U.S. 277, 287 (1995). Such broad discretion rests with the district courts 

because “[w]hen all is said and done ... ‘the propriety of declaratory relief ... will depend upon a 

circumspect sense of its fitness informed by the teachings and experience concerning the 

functions and extent of federal judicial power[;]’” indeed, “facts bearing on the usefulness of the 

declaratory judgment remedy, and the fitness of the case for resolution, are peculiarly within 

their grasp.” Id. at 287, 289.

St. Catherine contends that this Court lacks subject matter jurisdiction because 

Pennsylvania National lacks standing as the injury it cites is not actual or imminent, nor is it 

redressable by the Court. (Doc. 69 at 6). Specifically, St. Catherine asserts that Pennsylvania 

National alleges no imminent harm in the Complaint, only that it is not liable for the verdict in 

the underlying state court litigation. (Id.) St. Catherine, however, relies on general standing 

case law for this assertion rather than standing in the context of a declaratory judgment action.

Based on the complaint, Pennsylvania National alleges that: 1) the jury’s verdict of 

$350,000 against its insured Kiker was only for St. Catherine’s breach of contract claim, for 

which it has no duty to defend or indemnify Kiker; 2) a bona fide justiciable controversy exists

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which should be resolved; 3) the relevant portions of the CGL policy and 

amendments/endorsements are clear and unambiguous; 4) there is no indemnity afforded under 

the policy to Kiker for the verdict entered against it in the underlying state court litigation; 5) it is 

not liable for satisfying any portion of the $350,000 judgment awarded to St. Catherine for its 

claims against Kiker; and 6) it owes no further duty to defend Kiker. (Doc. 17 at 7). As such, 

Pennsylvania National has shown that a case or controversy exists for purposes of the

Declaratory Judgment Act because under all the circumstances, there is a substantial controversy

between parties having adverse legal interests of sufficient immediacy and reality to warrant the 

issuance of a declaratory judgment. Indeed, case law supports such a result. 

As explained in Edwards v. Sharkey, 747 F.2d 684, 686-687 (11th Cir. 1984):

The second jurisdiction issue focuses on whether there was a “case or controversy” 

before the district court as required by 28 U.S.C. § 2201. The Fifth Circuit Court of 

Appeals has cautioned against the exercise of jurisdiction in suits for declaratory 

judgment when the question of the apportionment of insurance coverage may never arise 

due to the lack of a judgment establishing the liability of the insured. See American 

Fidelity & Casualty Co. v. Pennsylvania Thresherman & Farmers' Mutual Casualty Co.,

280 F.2d 453 (5th Cir.1960). This caution, however, is predicated on the traditional 

discretion of federal courts exercising jurisdiction over declaratory judgment actions. See 

id. at 461 (“The mandatory obligation of a District Court to accept and determine a suit 

for declaratory relief is not commensurate with the full scope of a ‘case or controversy’ 

within the constitutional sense.”); MacMillen-Bloedel, Inc. v. Fireman's Insurance Co., 

558 F.Supp. 596, 599 (S.D.Ala.1983) (interpreting American as rule governing 

discretion). But see Great Northern Paper Co. v. Babcock & Wilcox Co., 46 F.R.D. 67, 70 

(N.D.Ga.1968) (American a constitutional rule). Moreover, the Supreme Court of the 

United States has held that a “case or controversy” exists to support declaratory relief 

between an injured third party and an insurance company even in the absence of a 

judgment in favor of the third party against the insured. Maryland Casualty Co. v. Pacific 

Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1940). Finally, even if there 

was no “case or controversy” before the district court because of the lack of a judgment 

against the insured, the settlement of the tort actions provides the necessary establishment 

of the insured's liability. See Allstate Insurance Co. v. Employers Liability Assurance Co., 

445 F.2d 1278, 1281 (5th Cir.1971).

Thus, standing has been found to exist for insurance coverage disputes which are “manifestly 

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susceptible of judicial determination” under Article III -- even when no insurance claim has been 

submitted and no judgment triggering insurance obligations has issued. See, e.g., Maryland 

Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941) (holding that a tort claimant had 

Article III standing to seek a declaration in federal court that the tortfeasor’s insurer owed the 

insured tortfeasor a duty to indemnify even though the underlying tort suit had not yet been 

reduced to judgment); American States Ins. Co. v. Bailey, 133 F.3d 363, 368 (5th Cir. 1998) 

(finding in a declaratory judgment action by the insurer, that a case or controversy existed even 

though injured parties’ claims against insured had not yet been reduced to a judgment). Indeed, 

in the case of liability policies, a dispute or controversy between the insurer and insured as to the 

fact or extent of liability under the policy, including the insurer's obligation to defend the 

insured, is generally held to present an actual or justiciable controversy within the Declaratory 

Judgment Act. See generally Penn-America Ins. Co. v. Coffey, 368 F.3d 409 (4th Cir. 2004); 

Athridge v. Aetna Cas. & Sur. Co., 351 F.3d 1166 (D.C. Cir. 2003). 

Here: 1) an insurance claim has been submitted; 2) there has already been a state court 

judgment triggering insurance obligations; 3) Pennsylvania National initiated this litigation after 

the state court judgment was rendered; and 4) per the declaratory judgment action, there is an 

active dispute between the insured (Kiker) and the insurer (Pennsylvania National), as to 

coverage under the policy. As such, Pennsylvania National has standing to bring this 

Declaratory Judgment action. St. Catherine’s position that Pennsylvania National lacks 

standing because it has “taken an active role” in appealing the state court judgment is not 

supported by law. As such, St. Catherine’s motion to dismiss, based on Pennsylvania 

National’s lack of standing, is due to be denied. 

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B. Lack of Ripeness

As noted supra, following the November 2012 state court judgment, Kiker and St. 

Catherine appealed, and the appeal remains pending before the Alabama Supreme Court. In the 

instant motion to dismiss, St. Catherine contends that this federal case is not ripe because: 1) 

Pennsylvania National appealed the state court verdict on the basis that it is not liable to 

indemnify Kiker such that the obligation created by the state court judgment “is not yet a 

certainty but rests with the Alabama Supreme Court[,]” and the declaratory judgment complaint 

is accordingly based on future events that may never happen; and 2) St. Catherine’s cross-appeal 

of the dismissal of its negligent and negligent supervision claims raises an issue of agent status as 

to Damon Lett that may have “drastic ramifications for coverage issues[.]” (Doc. 69 at 8).

At the outset, St. Catherine is mistaken. Pennsylvania National was not a party to the 

state court litigation and is thus not a party to the appeal. 

Additionally, a declaratory judgment should not be entered unless there is a controversy 

“ripe” for judicial resolution: “[p]ut a different way, ‘[a] controversy, to be justiciable, must be 

such that it can presently be litigated and decided and not hypothetical, conjectural, conditional 

or based upon the possibility of a factual situation that may never develop.” Saint Paul United 

Meth. Church v. Gulf States Conf. Assn. of Seventh-Day Adventists, Inc., 2012 WL 4477653, *2 

(M.D. Ala. Sept. 28, 2012) (citing binding precedent Brown & Root, Inc. v. Big Rock Corp., 383 

F.2d 662, 665 (5th Cir. 1967)). A lack of ripeness is not a viable basis for St. Catherine’s

motion to dismiss because a judgment has already been rendered against the insured (Kiker) and

the underlying claim has been resolved. See, e.g., Essex Ins. Co. v. Foley, 2011 WL 1706214, 

*3 and note 5 (S.D. Ala. May 5, 2011) (citing Allstate Ins. Co. v. Employers Liability Assur. 

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Corp., 445 F.2d 1278, 1281 (5th Cir. 1971) (“[N]o action for declaratory relief will lie to establish 

an insurer's liability ... until a judgment has been rendered against the insured since, until such 

judgment comes into being, the liabilities are contingent and may never materialize[]”)), and 

Allstate Indem. Co. v. Lewis, 985 F. Supp. 1341, 1349 (M.D. Ala. 1997) (“the duty to indemnify 

is not ripe for adjudication until the insured is in fact held liable in the underlying suit”) (citation 

omitted). “It is simply inappropriate to exercise jurisdiction over an action seeking a 

declaration of the plaintiff's indemnity obligations absent a determination of the insureds’

liability.” Employers Mut. Cas. Co. v. All Seasons Window & Door Mfg., Inc., 387 F.Supp.2d 

1205, 1211-1212 (S.D. Ala. 2005)) (footnotes omitted). See also e.g., Pennsylvania Nat. Mut. 

Cas. Ins. Co. v. King, 2012 WL 280656, *5 (S.D. Ala. Jan. 30, 2012) (“[c]ase law is legion for 

the proposition that an insurer's duty to indemnify is not ripe for adjudication unless and until the 

insured or putative insured has been held liable in the underlying action[]”). 

As the state court has already determined the liability of Kiker, the insured, a lack of 

ripeness is not a proper grounds upon which St. Catherine can root its motion to dismiss. As 

such, St. Catherine’s motion to dismiss, based on a lack of ripeness, is due to be denied.

C. Abstention

St. Catherine asserts that entry of a stay based on Colorado River abstention is proper 

under the circumstances. However, Colorado River authorizes a federal court to dismiss or stay 

an action where there is an ongoing parallel action in state court, but only under exceptional 

circumstances because the general rule is that “the pendency of an action in the state court is no 

bar to proceedings concerning the same matter” in federal court and federal courts have a 

“virtually unflagging obligation to exercise their jurisdiction.” Jackson-Platts v. General Elec. 

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Capital Corp., 727 F.3d 1127, 1140 (11th Cir. 2013); Moorer v. Demopolis Waterworks and 

Sewer Bd., 374 F.3d 994, 997 (11th Cir. 2004); Ambrosia Coal & Constr. Co. v. Pages Morales, 

368 F.3d 1320, 1328 (11th Cir. 2004). The Supreme Court framed this doctrine as an 

“extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy 

properly before it.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 

813 (1976).5 Indeed, “[o]nly the clearest of justifications will warrant dismissal of the federal 

action” under Colorado River. Ambrosia Coal, 368 F.3d at 1329 (citation omitted). 

As a threshold matter, a federal court may abstain under Colorado River only if there is a 

parallel state action – i.e., an action involving “substantially the same parties and substantially 

the same issues.” Ambrosia Coal, 368 F.3d at 1330. Cases are parallel when they involve the 

same parties and claims; however, when the two cases are not truly duplicative in the identity of 

the parties and claims, Colorado River abstention is not appropriate. See, e.g., Essex Ins. Co. v. 

Foley, 2011 WL 290423, *2 at note 4 (S.D. Ala. Jan. 27, 2011) (providing that “[w]here the 

declaratory judgment action is brought by an insurer against an insured, there are no parallel 

proceedings if (1) the insurer was not a party to the suit pending in state court; and (2) the state 

court actions involved issues regarding the insured's liability, whereas the federal suit involved 

matters of insurance coverage[]”) (citation and internal quotation marks omitted). “There is no 

clear test for deciding whether two cases contain substantially similar parties and issues. 

But...the balance...begins titled heavily in favor of the exercise of the [federal] court’s 

 5 The Eleventh Circuit identified six factors courts consider in assessing if Colorado River abstention is 

proper: 1) whether any court has assumed jurisdiction over property, 2) the relative inconvenience of the fora, 3) the 

potential for piecemeal litigation, 4) the temporal order in which each forum obtained jurisdiction, 5) whether state 

or federal law governs, and 6) whether the state court is adequate to protect the parties' rights. Ambrosia Coal, 368 

F.3d at 1331. Courts “must weigh these factors with a heavy bias in favor of exercising jurisdiction.” TranSouth 

Financial Corp. v. Bell, 149 F.3d 1292, 1295 (11th Cir.1998). No one factor is necessarily dispositive; “the factors 

must be considered flexibly and pragmatically, not as a mechanical checklist.” Ambrosia Coal, 368 F.3d at 1332. 

“One factor alone can be the sole motivating reason for the abstention.” Moorer, 374 F.3d at 997.

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jurisdiction...if there is any substantial doubt about whether two cases are parallel the court 

should not abstain.” Acosta v. James A. Gustino, P.A., 478 Fed. Appx. 620, 622 (11th Cir. 

2012). Additionally, “the decision to invoke Colorado River necessarily contemplates that the 

federal court will have nothing further to do in resolving any substantive part of the case.”

Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28 (1983).

Despite St. Catherine’s contentions, the state and federal proceedings are not parallel. 

Pennsylvania National was not a party to the underlying state case. The parties in the underlying 

state court case were St. Catherine of Sienna Parish, Kiker Corporation, Thompson Engineering, 

Inc., Thompson Engineering Testing, Inc., and Damon Lett Roofing. The only “same parties” 

-- as between the state court case and this federal case -- are St. Catherine and Kiker. 

Additionally, the underlying state action involved St. Catherine suing Kiker for negligence, 

wantonness, breach of contract, misrepresentation and suppression related to a construction 

contract, as opposed to the insurance coverage issues presented in this federal case. 

Substantially the same parties are thus not litigating substantially the same issues in both courts. 

As such, abstention under Colorado River is not appropriate.

III. Conclusion

Based upon the foregoing, the Court finds that St. Catherine’s Motion to Dismiss and 

Abstain (Doc. 69) is DENIED.

DONE and ORDERED this the 18th day of March 2014.

/s/ Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

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