whether Pifers are able to sustain their burden of proof in the Common Pleas Court.
All of the parties in this lawsuit assert that this Court has jurisdiction to hear the case and should exercise its discretion in determining the alleged controversies. However, this Court was not completely satisfied that it was clear that its discretion should be exercised in the determination of the issues raised by the complaint at this time. Accordingly, we requested the parties to advise the Court of their positions as to jurisdiction of the Court to hear this case.
A case strikingly similar to this one is Knapp v. Hankins, D.C.E.D.Ill.1952, 106 F.Supp. 43. In that case there was an automobile accident which resulted in injuries, and a suit was brought against the tavern owner who had served liquor to the driver of the car. The Court took jurisdiction to determine the question of whether the policy issued to the tavern owner afforded him coverage in that situation, because it felt that the insurance company was in a precarious situation in that if it did not employ counsel to defend the policy and if the policy would be declared valid, the company would breach the terms of the policy and be liable. On the other hand, if it had knowledge of the circumstances and did employ counsel, and did defend the suit without first obtaining a non-waiver agreement, it would waive the breach and be compelled to pay the judgment. However, the important distinction between the instant case and the Knapp case is that here the insurance company, Glens Falls, did obtain a non-waiver agreement.
Glens Falls is not in a precarious situation. If Schindel is not found liable for the accident to the Pifers, that is the end of the litigation. Only if he is found liable does the question arise as to the extent of their coverage. We frankly do not think that we should entertain jurisdiction at this point to determine the extent of their policies, as it will not save anyone any time or expense, nor will it aid in the disposition of any litigation.
The Chief Judge of this district in an opinion in the case of U.S. Fidelity and Guaranty Co. v. Fidelity & Casualty Co. of N.Y., supra, recently held that federal courts are not authorized to give advisory opinions, and that if we should give advisory opinions to insurance companies we would be in violation of the mandate of the court of appeals in this circuit issued in the Nationwide case, supra. That we will not do.
In the second court of the complaint, Glens Falls asserts their claim against Buckeye in that they assert that Buckeye ought to defend Schindel under the omnibus provisions of the Buckeye auto policy. But they do not clearly assert that Schindel has even asked Buckeye to defend him, and in any event what we have said above in regard to advisory opinions would apply to the second court of the complaint.
In the third count of the complaint, Glens Falls brought suit against Pifers, and while they assert that there is a controversy between Glens Falls and Pifers, and they assert that the Pifers have a legal interest in the determination of the coverage afforded to Schindel, we do not feel that they do. We know of no case that holds that an individual has a right to bring a lawsuit against an insurance company to defend an insured. How then can an insurance company bring a lawsuit against one who has been injured to determine that the insurance company has no duty to defend the alleged tort-feasor?
In the fourth court, Glens Falls has brought a lawsuit against Frank and Dolores Caye. Dolores Caye was, of course, the driver of the automobile involved in this accident. It has not been shown to the satisfaction of this Court what dispute there is between the Cayes and Glens Falls. The only substantial dispute as we have said is between Glens Falls and Schindel, and in that instance a non-waiver agreement has been entered into which will adequately protect both Schindel and Glens Falls until the principal suit has been decided.
At this time there is no need for this Court to entertain the Declaratory Judgment Action filed by Glens Falls, and an appropriate order dismissing the complaint will be entered.
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