United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
REBECCA GRADY JENNINGS, DISTRICT JUDGE UNITED STATES DISTRICT
matter is before the Court on Plaintiff Maxum Indemnity
Company’s Motion for Summary Judgment. [DE 62].
Briefing is complete [DE 78, DE 79] and this matter is ripe.
For the reasons below, the Court will GRANT IN
PART and DENY IN PART Maxum
Indemnity Company’s Motion.
FACTUAL AND PROCEDURAL BACKGROUND
Indemnity Company (“Maxum”) issued Defendant
Chris Gribbins, doing business as Raywick Bar & Grill, a
commercial insurance policy (the “Policy”). [DE
64-4 at 547]. Gribbins shot and killed David Litsey, Jr.
outside the Raywick Bar & Grill (the
“Incident”). [DE 64-2 at 515].
David Litsey, Sr. sued Gribbins, the Raywick Bar & Grill,
and Defendant Broken Spoke LLC dba Raywick Bar & Grill
(“Broken Spoke”) in Kentucky court, alleging that
Gribbins had either negligently or willfully caused Litsey,
Jr.’s death (the “Kentucky Suit”). [[DE
64-1 at 511]. Maxum notified Gribbins that it would defend
against the suit under a full reservation of rights and that
it intended to seek a declaration of its rights the Policy.
[DE 64-6 at 636–37].
then brought a declaratory action in this Court, seeking a
declaration that the Policy did not cover the shooting of
Litsey, Jr. and that Maxum need not defend or indemnify
Gribbins or Broken Spoke in the Kentucky Suit. [DE 1 at 2].
Maxum named Gribbins, Broken Spoke, and Litsey, Sr. as
defendants in this suit. [Id. at 1].
Kentucky jury later convicted Gribbins of the wanton murder
of Litsey, Jr. Gribbins v. Commonwealth, 483 S.W.3d
370, 373 (Ky. 2016); see also [DE 64-3 at 545].
During Mr. Gribbins’s criminal trial, the jury heard
sworn testimony from several eyewitnesses to the shooting.
Several witnesses testified that Gribbins confronted Litsey
in a crowd outside the bar where Gribbins “pistol
whipped” Litsey. [DE 64-2 at 516-17]. “During
that assault, the gun discharged killing Litsey.”
[Id. at 516]. In his defense, Gribbins testified
that Litsey confronted him outside the bar in an aggressive
manner. [Id. at 517]. Gribbins stated that he drew
his handgun to protect himself. [Id.]. He admitted
that the gun was in his right hand when he placed his right
hand on Litsey’s chest. [Id.]. While the
handgun was aimed at Litsey it discharged, killing him.
weighing all the testimony and physical evidence, the jury
found Gribbins guilty of “Wanton Murder.” The
instructions provided to the jury on the elements of
Intentional/ Wanton Murder stated:
A. That on or about November 9, 2012, Gribbins killed David
Litsey, Jr. by shooting him; and
B. That in so doing, he was wantonly engaging in conduct
which created a grave risk of death to another and thereby
caused the death of David Litsey, Jr. under circumstances
manifesting an extreme indifference to human life; and
C. He was not privileged to act in self-protection. [DE 64-3
jury instructions defined “wantonly” as follows:
A person acts wantonly with respect to a result or to a
circumstance when he is aware of and consciously disregards a
substantial and unjustifiable risk that the result will occur
or that the circumstance exists. The risk must be of such
nature and degree that disregard thereof constitutes a gross
deviation from the standard of conduct that a reasonable
person would observe in the situation.
[DE 64-3 at 534].
court also instructed the jury on the use of force in
self-defense under Kentucky law and the jury found that
Gribbins had not acted in self-defense. [DE 64-3 at 536].
Maxum now moves for summary judgment. [DE 62].
brings this action under the Declaratory Judgment Act. [DE 1
at 2; 28 U.S.C. § 2201(a)]. While the Act authorizes
district courts to exercise jurisdiction, it does not mandate
or impose a duty to do so. Bituminous Cas. Corp. v. J
& L Lumber Co., Inc., 373 F.3d 807, 812 (6th Cir.
2004). While neither party has addressed the Court’s
jurisdiction, the Court will first determine whether the
exercise of jurisdiction is appropriate under the
circumstances of this case.
court considers five factors (the “Grand Trunk
factors”) to determine whether the exercise of
Declaratory Judgment Act jurisdiction is proper. Grand
Trunk W.R.R. Co. v. Consol. Rail Co., 746 F.2d 323, 326
(6th Cir. 1984) (internal quotation marks omitted). Although
the Court must balance the five factors, the Sixth Circuit
has never clarified the relative weights of the factors.
Id. at 563.
first two Grand Trunk factors assess “(1)
whether the declaratory action would settle the
controversy” and “(2) whether the declaratory
action would serve a useful purpose in clarifying the legal
relations in issue.” Grand Trunk, 746 F.2d at
326. Because “it is almost always the case that if a
declaratory judgment will settle the controversy, . . . it
will clarify the legal relations in issue, ” the
inquiries required by these two factors often overlap
substantially. United Specialty Ins. Co. v. Cole's
Place, Inc., No. 18-5545, 2019 WL 3955847, at *6 (6th
Cir. Aug. 22, 2019) (citing Flowers, 513 F.3d at
557; Bituminous, 373 F.3d at 814; and Northland
Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 454
(6th Cir. 2003)).
are two lines of cases in the Sixth Circuit. United
Specialty Ins. Co. v. Cole’s Place, Inc., 2018 WL
1914731 at 4 (W.D. Ky. 2018) (citing Flowers, 513
F.3d at 555). “One line of cases approved of
declaratory actions because they can ‘settle the
insurance coverage controversy, ’ while a second line
of cases disapproved of declaratory actions because while
they ‘might clarify the legal relationship between the
insurer and the insured, they do not settle the ultimate
controversy.’” Id. (quoting
Flowers, 513 F.3d at 555).
action falls into the first line of cases. Maxum asserts that
(1) the Policy does not cover the Incident because Gribbins
assaulted Litsey, Jr.; and (2) the Broken Spoke is not a
named insured on the Policy, and therefore not covered by the
Policy. [DE 64 at 495–505]. The first allegation
requires determination of whether an assault occurred, which
a Kentucky jury already definitively resolved in the
underlying criminal matter. Gribbins, 483 S.W.3d at
373; see also [DE 64-2 at 517]. There are thus no
fact-bound issues of state law awaiting resolution in the
state-court litigation. See Bituminous, 373 F.3d at
813–14. The second allegation is a technical issue of
law requiring no determination of disputed fact. As a result,
this declaratory judgment action will “settle the
controversy, ” as it resolves the dispute between the
insurer and insured over who will pay for the state-court
litigation. See, e.g., W. World Ins. Co. v.
Hoey, 773 F.3d 755, 760–61 (6th Cir. 2014). The
first two Grand Trunk factors therefore support the
exercise of jurisdiction.
third factor considers “whether the use of the
declaratory judgment action is motivated by ‘procedural
fencing’ or [is] likely to create a race for res
judicata.” Flowers, 513 F.3d at 558. The Sixth
Circuit seldom finds procedural fencing if the
declaratory-plaintiff filed after the start of litigation in
state court. United Specialty Ins. Co. v. Cole's
Place, Inc., No. 18-5545, 2019 WL 3955847, at *8 (6th
Cir. Aug. 22, 2019). Maxum notified Gribbins, when it
provided its reservation of rights, that it intended to seek
a declaration of its rights the Policy. [DE 64-6 at
636–37]. There is no competing state court declaratory
action. Thus, the third Grand Trunk factor is
fourth Grand Trunk factor addresses “whether
accepting jurisdiction would increase friction between
federal and state courts” and is broken into three
sub-factors. Flowers, at 559. The first sub-part
“focuses on whether the state court’s resolution
of the factual issues in the case is necessary for the
district court’s resolution of the declaratory judgment
action.” Flowers, 513 F.3d at 560. Here, any
factual determinations the Court may have to make will not
overlap with those at issue in the State Court Action. To
determine whether the Policy applies or whether the
exclusions apply, the Court must survey the allegations in
the underlying complaint and determine whether those
allegations fall within the Policy or the cited exclusions.
See Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d
503, 507 (6th Cir. 2003) (“Under Kentucky law, a court
should determine at the outset of litigation whether an
insurance company has a duty to defend its insured by
comparing the allegations in the underlying complaint with
the terms of the insurance policy.”). All the factual
issues necessary for resolution of this matter have been
definitively determined in the state court criminal case.
This issue is purely legal and does not require factual
findings as any factual issues have already been resolved by
the criminal matter. See Cole’s Place, 2018 WL
1914731, at *7. Accordingly, this sub-factor supports
second sub-part examines “which court, federal or
state, is in a better position to resolve the issues in the
declaratory action.” Id. The Sixth Circuit has
“found that ‘issues of insurance contract
interpretation are questions of state law with which the
Kentucky state courts are more familiar and, therefore,
better able to resolve.’” Id. (quoting
Travelers Indemnity Co. v Bowling Green Prof.
Assoc., 495 F.3d 266, 273 (6th Cir. 2007)). The
questions that would arise here do not, however, do not
involve novel issues of Kentucky law. See Cole’s
Place, Inc., 2018 WL 1914731, at *8. The second
sub-factor therefore counsels against exercising
jurisdiction, even if less strongly than if the issues
involved novel or unsettled questions of state law.
third sub-part “focuses on whether the issue in this
federal action implicates important state policies and is,
thus, more appropriately considered in state court.”
Flowers, 513 F.3d at 561. Kentucky state courts are
“more familiar and, therefore, better able to
resolve” interpretation of insurance contracts.
Id. Even when the state law is not difficult to
apply, the Sixth Circuit has usually found “that the
interpretation of insurance contracts is closely entwined
with state public policy.” Cole’s Place,
2019 WL 3955847, at *10, citing e.g.,
Flowers, 513 F.3d at 561 and Travelers, 495
F.3d at 273. Because this action involves an interpretation
of a Kentucky insurance contract, the third sub-factor
counsels against exercising jurisdiction.
fifth and final factor asks “whether there is an
alternative remedy which is better or more effective”
than federal declaratory relief. Grand Trunk, 746
F.2d at 326. Kentucky law provides a declaration of rights
procedure, under KRS § 418.040. Mass. Bay Ins. Co.
v. Christian Funeral Dirs., Inc., No. 18-5267, 2018 WL
6787945, at *8 (6th Cir. Dec. 26, 2018). The Sixth Circuit
has held that, “[i]n many ways, this alternative would
have been better.” Flowers, 513 F.3d at 562.
Specifically, “[t]he Kentucky courts are in a superior
position to resolve undecided questions of state law, ”
and “Kentucky courts might also have been able to
combine the two actions so that all issues could be resolved
by the same judge.” Id.
other hand, “given that Kentucky precedent provides
clear guidance as to the resolution of the legal issue
presented, it cannot be said that the district court [is] a
clearly inferior forum to resolve the issue” in this
case. Id. This is because Maxum would have needed to
join the underlying state action and then wait until a
resolution of liability before determining its obligations
toward Defendants. “Such a delayed alternative would be
worse, not better, than seeking a federal declaratory
judgment.” Id. When faced with the same
conflicting alternative remedies in Flowers, the
Sixth Circuit held that this factor “counsel[s] against
exercising jurisdiction . . . [h]owever, it does not counsel
so strongly against exercising jurisdiction ...