United States District Court, D. Massachusetts
AIG Property Casualty Company, Plaintiff: William A.
Schneider, LEAD ATTORNEY, Morrison Mahoney LLP, Boston, MA.
William H. Cosby, Jr., Defendant: Francis D. Dibble, Jr.,
Jeffrey E. Poindexter, LEAD ATTORNEYS, Bulkley, Richardson &
Gelinas, Springfield, MA; Kim Umanoff, Kirk A. Pasich, LEAD
ATTORNEYS, PRO HAC VICE, Los Angeles, CA.
Tamara Green, Therese Serignese, Linda Traitz, Defendants:
Joseph Cammarata, LEAD ATTORNEY, PRO HAC VICE, Washington,
DC; Matthew W. Tievsky, LEAD ATTORNEY, CChaikin, Sherman,
Cammarata & Siegel, P.C., Washington, DC.
AND ORDER REGARDING DEFENDANT'S MOTION TO DISMISS OR, IN
THE ALTERNATIVE, TO STAY DECLARATORY JUDGMENT ACTION, AND
PLAINTIFF'S MOTION TO STAY LITIGATION PENDING OUTCOME OF
DECLARATORY JUDGMENT ACTION (Dkt. Nos. 17 and 26)
MASTROIANNI, United States District Judge.
Property Casualty Company (" AIG" ) brought this
action against William H. Cosby Jr., Tamara Green, Therese
Serignese, and Linda Traitz seeking a declaration that it has
no duty to defend or indemnify Cosby under two homeowners
insurance policies in relation to a defamation case also
pending in this court, Green v. Cosby, Case No.
14-cv-30211-MGM (" Underlying Litigation" ),
brought by Green, Serignese, and Traitz (" Underlying
Plaintiffs" ). The policies contain similar language
stating AIG will cover claims against Cosby for "
[d]efamation, libel or slander" but will not cover
claims " arising out of any actual, alleged or
threatened . . . sexual molestation, misconduct or
harassment." (Dkt. No. 1, Compl. ¶¶ 13, 17.) As would be
expected, AIG and Cosby disagree about whether the policies
cover the claims brought in the Underlying Litigation. That
question is not yet before the court, however.
the only question presently before the court is the sequence
in which this action and the Underlying Litigation will be
resolved. Cosby asks the court to dismiss on abstention
grounds or, in the alternative, to stay this action pending
resolution of the Underlying Litigation. (Dkt. No. 17.) In a
separate motion, AIG essentially seeks the opposite relief,
asking the court to stay the Underlying Litigation pending
resolution of this declaratory judgment action. (Dkt. No.
26.) For the following reasons, the court declines to dismiss
or stay either action in favor of the other and, therefore,
will deny both motions. The court anticipates the insurance
issue can be resolved fairly quickly without requiring
adjudication of the underlying facts. The Underlying
Litigation is still in the very early stages, and this court
is in the unique position of presiding over both cases.
Accordingly, practical considerations favor proceeding with
both actions simultaneously.
Background and Procedural History
an insurance company incorporated in Pennsylvania with its
principal place of business in New York. (Compl. ¶ 1.) Green
resides in California, Serignese and Traitz reside in
Florida, and Cosby resides in Massachusetts. ( Id.
¶¶ 2-5.) AIG issued Massachusetts Homeowners Policy No. PCG
006004261 (" Massachusetts Policy" ) and Personal
Excess Liability Policy No. PCG 006235889 (" Excess
Policy" ) to Cosby. ( Id. ¶ 10, 14.) Both
policies were in effect from January 1, 2014 to January 1,
2015. ( Id. ¶¶ 11, 15.) The policies require AIG to
" pay damages [Cosby] is legally obligated to pay for
personal injury or property damage caused by an occurrence
covered by this policy anywhere in the world." (
Id. ¶¶ 13, 17.) The policies define " personal
injury" as including " [b]odily injury,"
" [s]hock, emotional distress, mental injury,"
" [i]nvasion of privacy," and " [d]efamation,
libel, or slander." ( Id., Exs. A and B, at
Part I, Definitions.) The Massachusetts Policy also requires
AIG to " pay the costs to defend [Cosby] against any
suit seeking covered damages for personal injury or property
damage, even if the suit is false, fraudulent, or
groundless." ( Id. ¶ 13.)
Massachusetts Policy contains an exclusion which states that
it " does not provide coverage for liability, defense
costs or any other cost or expense for . . . personal injury
arising out of any actual, alleged, or threatened by any
person: (a) sexual molestation, misconduct or harassment . .
. or (c) sexual, physical or mental abuse." (
Id. ¶ 13.) Similarly, the Excess Policy contains an
exclusion stating it " does not provide coverage for
liability, defense costs or any other cost or expense . . .
[a]rising out of any actual, alleged or threatened: a. Sexual
misconduct, molestation or harassment . . . or c. Sexual,
physical or mental abuse." ( Id. ¶ 17, Ex. B,
at Part V, What is Not Covered, Exclusions.)
Underlying Litigation was commenced on December 10, 2014. (
Green v. Cosby, Case No. 14-cv-30211-MGM, Dkt. No.
1.) A second amended complaint, which added Serignese and
Traitz as plaintiffs along with Green, was filed on April 16,
2015. ( Id., Dkt. No. 48.) The second amended
complaint asserts defamation claims pertaining to statements
issued on behalf of Cosby in response to public allegations
of sexual misconduct made by the Underlying Plaintiffs. (
Id. ) On December 12, 2014, Cosby notified AIG of
the Green lawsuit. (Dkt. No. 19, Decl. of Kimberly
A. Umanoff (" Umanoff Decl." ) ¶ 5.) On January 6,
2015, AIG sent Cosby a letter stating that it accepted his
claim for the Green lawsuit, subject to a full
reservation of rights. ( Id. ¶ 7.) On June 26, 2015,
AIG filed this declaratory judgment action.
September 14, 2015, Cosby filed the motion to dismiss or, in
the alternative, to stay this declaratory judgment action.
(Dkt. No. 17.) Meanwhile, on October 9, 2015, this court
denied Cosby's motion to dismiss the Underlying
Litigation, concluding that the second amended complaint
alleged actionable defamation claims. See Green
v. Cosby, Civil Action No. 14-cv-30211-MGM, 2015 WL
5923553 (D. Mass. Oct. 9, 2015). Thereafter, on October 20,
2015, AIG filed its own motion in this action to stay further
proceedings in the Underlying Litigation so the insurance
issue can be resolved first. (Dkt. No. 26.) The court held a
hearing on December 3, 2015, at which counsel for AIG, Cosby,
and the Underlying Plaintiffs argued the merits of the two
pending motions. (Dkt. No. 41.)
Standard of Review
complaint for declaratory relief invokes the Declaratory
Judgment Act, which states " [i]n 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." 28 U.S.C.
§ 2201(a). This discretionary language signifies that
unlike the ordinary case, in which federal courts have a
" virtually unflagging obligation" to exercise
jurisdiction given to them, Mata v. Lynch, 135 S.Ct.
2150, 2156, 192 L.Ed.2d 225 (2015) (quoting Colo. River
Water Conservation Dist. v. United States, 424 U.S. 800,
817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)), federal courts
retain significant flexibility in deciding whether to
exercise jurisdiction over declaratory judgment actions.
SeeWilton v. Seven Falls Co., 515 U.S.
277, 287, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (" We
have repeatedly characterized the Declaratory Judgment Act as
'an enabling Act, which confers a discretion on the
courts rather than an absolute right upon the
litigant.'" (quoting Public Serv. Comm'n of
Utah v. Wycoff Co., 344 U.S. 237, 241, 73 S.Ct. 236, 97
L.Ed. 291 (1952))); see alsoFuller Co. v. Ramon
I. Gil, Inc., 782 F.2d 306, 308 n.3 (1st Cir. 1986)
(" [A] federal court's duty to exercise its
jurisdiction is relaxed in the declaratory judgment
context." ). " Consistent with the nonobligatory
nature of the remedy, a district court is authorized, in the