§ 2201(a), federal courts may decline to hear a claim in favor of a pending state action for reasons of judicial economy, even where the court would have jurisdiction. Brillhart v. Excess Inc. Co., 316 U.S. 491, 86 L. Ed. 1620, 62 S. Ct. 1173 (1942). Federal courts possess greater discretion to abstain in declaratory judgment suits than permitted under the exceptional circumstances test of Colorado River. Wilton v. Seven Falls Co., 515 U.S. 277, 132 L. Ed. 2d 214, 115 S. Ct. 2137, 2142 (1995). The Declaratory Judgment Act by its text is committed to discretion. Id. Here, Viola's suit is not brought pursuant to the Declaratory Judgment Act. Hence, the judicial discretion enunciated in Brillhart is inapplicable and, therefore, the court will not decline to exercise jurisdiction.
D. Viola's Previous Garnishment Action Against Fireman's Fund
Fireman's Fund argues that Viola's complaint has already been dismissed with prejudice because on May 27, 1993, Viola withdrew his writ of execution directed at Fireman's Fund and this withdrawal occurred after Fireman's Fund had answered the writ, and without stipulation of the parties or court consent. In the alternative, Fireman's Fund argues that if Viola's claims are deemed to have not been adjudicated on the merits, Fireman's Fund requests the court to order Viola to pay costs and fees incurred in the prior garnishment action.
In reply, Viola contends that the writ of execution directed at Fireman's Fund was premature because, in order to determine if Francks was covered under Fireman's Fund's umbrella policy, it had to be determined first whether the primary carrier, American, was liable to indemnify Francks. Viola argues that a garnishor may withdraw a writ of execution unless substantial harassment or vexation results to the garnishee. Further, Viola asserts that Fireman's Fund should not be entitled to the costs of defending the garnishment proceedings because Fireman's Fund did not proceed on the merits of its answer and counterclaim, or request Magistrate Judge Smith to grant costs.
Fed. R. Civ. P. 69(a) provides that the procedure on execution shall be in accordance with the practice and procedure of the state in which the district court sits when the remedy is sought. United States v. Miller, 229 F.2d 839, 840 (3d Cir. 1956). Pa. R. Civ. P. 3145(a) provides that attachment interrogatories shall, as far as is practical, be treated as though the interrogatories were a complaint and the answer of the garnishee were an answer in a civil action. Under Fed. R. Civ. P. 41, a plaintiff may voluntarily dismiss a claim before answer or motion of summary judgment, or after an answer by stipulation of the parties and by order of court. With the exception of dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19, any dismissal not provided for by Rule 41(a) is an adjudication upon the merits. Fed. R. Civ. P. 41(b); Landon v. Hunt, 977 F.2d 829, 832 (3d Cir. 1992). Under Pennsylvania procedure, "[a] discontinuance may not be entered as to less than all defendants without leave of the court after notice to all parties." Pa. R. Civ. P. 229(b).
Here, the court concludes that Viola's claims have not already been dismissed with prejudice. In the garnishment proceedings, Fireman's Fund filed an answer and counterclaim to Viola's garnishment writ. Subsequently, the docket for the garnishment proceedings indicates that on May 27, 1993, Viola filed a praecipe to withdraw without prejudice his writ of execution directed at Fireman's Fund. The docket does not indicate what action was taken with respect to Viola's praecipe and the parties have not provided copies of the pertinent court records. However, in any event it is clear the court made no adjudication on the merits: if the court granted Viola's request, Viola's writ of execution was withdrawn without prejudice; if Viola's withdrawal of his writ was invalid, the writ is still active and, therefore, Viola's claims against Fireman's Fund have not been dismissed on the merits.
E. Coverage for Viola's Injuries Under Fireman's Umbrella Coverage
Fireman's Fund argues that Francks is not covered under its umbrella policy for causing Viola's injuries.
Fireman's Fund argues that whether it had an obligation to defend or indemnify Francks depends on the nature of the allegations in Viola's 1992 personal injury complaint. Fireman's Fund notes that Viola then alleged that while he was working, Francks violently battered him without warning, kicking him while he lay unconscious on the ground. Fireman's Fund asserts that based on these allegations, it did not have a duty to indemnify and defend Francks because the terms of the policy exclude coverage for Francks' acts. First, Fireman's Fund argues that its policy only covered injuries caused by accident and Viola's injuries were not caused accidentally. Second, Fireman's Fund contends that the policy excluded coverage for injuries to an employee who is acting within the scope of his employment when the injuries are caused by a fellow employee. Third, Fireman's Fund asserts that the policy excluded coverage for personal injuries that the insured intentionally caused.
As previously stated, in considering a 12(b)(6) motion to dismiss, the court must accept as true and view in the light most favorable to the plaintiff all allegations made in the complaint. H.J. Inc., 492 U.S. at 249. Consequently, the court must accept as true Viola's present account of the facts relating to his injuries, and his explanation for having alleged a different set of the facts in his personal injury complaint. However, Viola's claims are premised on Francks' rights against Fireman's Fund arising from Fireman's Fund's breach of a duty to indemnify and defend Francks in Viola's personal injury suit. Whether Viola's present complaint states a valid legal claim against Fireman's Fund depends on whether the wording of Viola's original personal injury complaint was such that Fireman's Fund had a duty to provide Francks with indemnity and a defense.
In Wilson v. Maryland Casualty Co., 377 Pa. 588, 105 A.2d 304 (1954), the Pennsylvania Supreme Court addressed a similar situation. The plaintiff, a restaurant owner, brought an indemnity claim against his insurance carrier for injuries caused to a patron. In his complaint, the plaintiff alleged that he had settled a personal injuries suit initiated by the patron, that the patron's injuries were caused by an accident during an altercation that had occurred among persons in the restaurant, and that the patron's injuries were covered by the insurer's policy. However, plaintiff had attached to his complaint a copy of the patron's complaint in the underlying suit, which stated that the patron's injuries were caused by an assault and battery perpetrated by the restaurant owner. Id. at 590-591. The insurer's policy excluded coverage for injuries caused by an assault and battery committed by the insured. The trial court entered judgment for the plaintiff because the insurer failed to answer the plaintiff's complaint. Id. at 598. On appeal, the Pennsylvania Supreme Court reversed and entered judgment for the defendant. Id. at 590, 595. The court held that
the rule everywhere is that the obligation of a casualty insurance company to defend an action brought against the insured is to be determined solely by the allegations of the complaint in the action, and that the company is not required to defend if it would not be bound to indemnify the insured even though the claim against him should prevail in that action.