United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE
matter is before the court on defendant Philip Chambers's
(“Chambers”) motion to dismiss, ECF No. 8, and
defendant Barry Foster's (“Foster”) motion to
dismiss, ECF No. 11. For the reasons set forth below, the
court grants the motions and dismisses the case without
declaratory action arises out of a series of events that
occurred on November 14, 2018. On that date, Foster
“was digging for artifacts in a corn field in Berkeley
County, South Carolina.” Compl. ¶ 11. At the same
time, Chambers was driving his 2007 Ford F-150 along a path
adjacent to the corn field and hunting hogs. Chambers saw
movement in the corn field and believed that movement to be a
wild hog. As such, he allegedly parked his car, exited the
vehicle, and fired his rifle at what he believed to be a hog.
The “hog” was actually Foster, who sustained a
gunshot wound to his right shoulder.
Progressive Northern Insurance Company
(“Progressive”) issued an automobile insurance
policy to Chambers, effective August 7, 2018 to February 7,
2019, that covered the Ford F-150 (“the Policy”).
The Policy provides bodily injury liability coverage limits
of $50, 000 per person and $100, 000 per accident and
property damage liability coverage with limits of $50, 000
per accident. Foster has made a demand for payment to
Progressive under the Policy for his injuries inflicted by
Chambers. This demand is based on the facts that Chambers
allegedly used the door and door jamb of his truck as a rifle
rest, that the car was still running and occupied by another
passenger, and that Chambers was allegedly still partially in
the vehicle when he shot Foster. Notably, Foster has not yet
filed a lawsuit against Chambers to recover for his injuries.
filed the instant suit on September 23, 2019 seeking a
declaration that the Policy does not provide coverage for any
injuries or damage that Foster sustained, and that
Progressive has no duty to defend or indemnify Chambers.
Chambers and Foster both filed motions to dismiss the
complaint on October 17, 2019 and October 29, 2019,
respectively. ECF Nos. 8, 11. Progressive responded to each
motion on October 28, 2019 and November 12, 2019,
respectively. ECF Nos. 10, 12. Neither defendant filed a
12(b)(1) motion to dismiss seeks to dismiss a lawsuit for
lack of subject-matter jurisdiction. A party may challenge
subject-matter jurisdiction in two ways: by arguing that the
complaint fails to allege facts upon which subject-matter
jurisdiction can be based, or by arguing that the
jurisdictional allegations of the complaint are not true.
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
In the first scenario, the court must accept the allegations
in the complaint as true, while in the second scenario,
“the trial court may go beyond the complaint, conduct
evidentiary proceedings, and resolve the disputed
jurisdictional facts.” Kerns v. United States,
585 F.3d 187, 193 (4th Cir. 2009). “A trial court may
consider evidence by affidavit, depositions or live testimony
without converting the proceeding to one for summary
judgment.” Adams, 697 F.2d at 1219. The burden
of proving subject matter jurisdiction is on the party
asserting jurisdiction. Id.
case is before the court on diversity jurisdiction.
Chambers's motion to dismiss for lack of subject matter
jurisdiction is based on the amount in controversy. Chambers
argues that the amount in controversy here is less than $75,
000 because the Policy limit for bodily injury coverage is
$50, 000. Similarly, Foster argues that Progressive's
maximum exposure to damages is $50, 000, meaning that the
amount-in-controversy is not met. Foster also generally
argues that the court should decline to exercise its
discretionary power to issue a declaratory judgment because
the issues here are based in South Carolina law and should be
decided by a state court. In response, Progressive contends
that the amount in controversy is determined not simply by
the Policy limits, which could be the indemnification amount,
but also by the cost of defending Chambers in an underlying
state court action. In addition, Progressive contends that
there could also be a property damage claim, meaning that
Progressive's exposure could total $100, 000 based on the
Policy limits for both bodily injury and property damage.
the parties fail to address a crucial issue that necessitates
the dismissal of this case-ripeness. The court may consider
the issue of ripeness sua sponte. Nat'l Park Hosp.
Ass'n v. Dep't of Interior, 538 U.S. 803, 808
(2003). The doctrine of ripeness exists “to prevent the
courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements.”
Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967).
It “is drawn both from Article III limitations on
judicial power and from prudential reasons for refusing to
exercise jurisdiction.” Reno v. Catholic Soc.
Servs., Inc., 509 U.S. 43, 58 (1993). In declaratory
judgment actions, a suit is ripe when “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). Here,
Progressive is asking the court to prematurely declare that
it has no obligation to defend or indemnify Chambers before a
lawsuit that would require either of those obligations
exists, making this case not ripe for adjudication.
Duty to Defend
issue of whether Progressive owes Chambers a duty to defend
is not ripe because Foster has not filed suit against
Chambers, meaning Chambers is not in need of a defense. Under
South Carolina law, courts determine whether a duty to defend
exists based on the allegations in the underlying complaint.
USAA Prop. & Cas. Ins. Co. v. Clegg, 377 S.C.
643, 654 (S.C. 2008). Here, there is no underlying complaint
for the court to use for its determination because Foster has
not filed suit against Chambers. To be sure, South Carolina
law also permits the court to determine if a duty to defend
exists based on facts outside of a complaint in an underlying
action. City of Hartsville v. South Carolina Mun. Ins.
& Risk Financing Fund, 677 S.E.2d 574, 578 (S.C.
2009). This could provide a basis for a court to find the
issue of duty to defend to be ripe even if an underlying
lawsuit had not yet been filed. For example, in Colony
Ins. Co. v. Hucks Pool Co., Inc., the court found that
the issue of duty to defend was ripe despite the fact that
there was no underlying complaint because the injured party
had sent a demand letter to the insured, indicating that a
controversy was imminent. 2018 WL 902295, at *3 (D.S.C. Feb.
15, 2018). Here, no such imminence exists to convince the
court that this action is ripe. There is some evidence that
Foster has contemplated litigation against Chambers. On July
30, 2019, Foster's counsel sent a letter to Progressive
demanding payment for his injuries and stating that if
Progressive did not agree to payment within 15 days, Foster
would initiate litigation against Chambers. ECF No. 8-2.
However, that was over five months ago, and Foster has still
not initiated litigation against Chambers. This delay
indicates that a lawsuit for which Chambers may need defense
is not imminent and that there is not “sufficient
immediacy and reality to warrant the issuance of a
declaratory judgment.” MedImmune, Inc., 549
U.S. at 127. Therefore, the issue of duty to defend is not