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July 5, 1984


The opinion of the court was delivered by: WARD

WARD, District Judge.

Plaintiffs, various reinsurers of defendant, Aetna Casualty and Surety Company ("Aetna"), instituted this action under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201 (the "Act), *fn1" for a declaratory judgment determining the rights and obligations of the parties pursuant to a series of reinsurance contracts. Aetna moves to dismiss the amended complaint pursuant to Rule 12(b), Fed. R. Civ. P., on the ground that it fails to state a claim upon which relief can be granted. *fn2" Aetna argues that the instant action does not present an "actual controversy" between the parties within the meaning of the Act, and that therefore this case is not properly within the jurisdiction of this Court. For the reasons hereinafter stated, Aetna's motion is granted, and the action is dismissed.


 In or before 1971, and continuing at least until 1977, Aetna issued policies of primary and excess liability insurance to A.H. Robins Company, Inc. ("Robins") insuring Robins against the risk of certain liability arising out of the use of the products manufactured, sold or distributed by Robins, including an intrauterine contraceptive device known as the Dalkon Shield. Individual polices were issued for consecutive one-year terms throughout this period with excess coverage in the amount of $30,000,000 for the years 1971 and 1972 and $50,000,000, thereafter, per occurrence and in the aggregate, attaching at the $5,000,000 limit of the underlying primary policy.

 Aetna elected to spread the risks insured under its excess policies by ceding such risks to reinsurers who accepted liability for specified percentages of the risks with various layers of reinsurance participation. Each layer, in turn, was divided into shares of differing sizes. Plaintiffs were among these reinsurers, and issued to Aetna written certificates of facultative reinsurance. Each reinsurer participated in this reinsurance scheme in unique patterns and amounts - reinsuring Aetna's excess insurance risks in some years but not in others, on only certain layers, and for only certain percentages.

 At various times commencing in 1971 and continuing to the present, numerous claims and lawsuits were filed against Robins to recover damages for personal injuries allegedly resulting from the use of the Dalkon Shield. Aetna undertook to defend and indemnify Robins under the insurance policies in effect for payments made upon judgment or in settlement of these lawsuits, assigning the date of loss to the policy in effect on the date that the injury became manifest, and charging defense costs and claims expenses against the limits of the applicable policy.

 In or about 1977, coverage under the then existing insurance scheme was modified with respect to the Dalkon Shield. *fn3" At that time, Robins object to Aetna's assignment of the date of loss under the "manifestation theory" of occurrence as well as the allocation of defense costs and claims expenses as applied by Aetna. Robins demanded that such claims and suits be administered on an "exposure theory" of occurrence and that all defense costs and claims expenses be assumed by Aetna in addition to the liability limitations provided in the applicable policies of insurance. Both of these demands could significantly increase Aetna's liability under the insurance policies. Aetna refused to comply with Robins' demands, and continued both to pay the relevant costs and expenses and to include them in determining whether the limit of Aetna's liability under the insurance policies have been exhausted.

 In 1979, Robins instituted an action against Aetna in the Circuit Court of the City of Richmond, Virginia, seeking a declaratory judgment construing various agreements and insurance policies between Robins and Aetna in a manner consistent with the demands described above. See A.H. Robins Co., Inc. v. Aetna Casualty & Sur. Co., No. G-3321-3 (the "Virginia litigation"). This action is still pending although several attempts at settlement have apparently been undertaken. *fn4"

 According to plaintiffs, from early 1982 until the present, Aetna has solicited its reinsurers to consent to various proposals of settlement with Robins, and has expressed the intention to sue those reinsurers that do not consent and that fail to pay their respective shares of any increased costs and expenses resulting from such a settlement. Plaintiffs have resisted such attempts at settlement by Aetna. They contend that the language of the individual facultative reinsurance certificates as well as certain correspondence between plaintiffs and their reinsurance intermediaries indicate that it had always been intended that the costs of defending and settling Robins' product liability suits would be included in determining whether the liability limits of the insurance policies had been exhausted. Plaintiffs assert that the reinsurance certificates were issued and the reinsurance premiums computed on the basis of this understanding.

 Plaintiffs fear that an agreement between Aetna and Robins settling the Virginia litigation that differed in its terms from plaintiffs' understanding of their reinsurance obligations could substantially increase plaintiffs' reinsurance risks. On December 5, 1983, plaintiffs commenced the instant action, apprehending that Aetna would settle the Virginia litigation with Robins despite plaintiffs' opposition to such efforts, and that Aetna would then sue the reinsurers that refused to pay over any additional reinsurance liability created or reaffirmed by such settlement. The amended complaint seeks judgment against Aetna "determining the rights and obligations of the parties under facultative reinsurance of defendant by plaintiffs in respect of the risks of A.H. Robins Company, Inc.," and declaring that there is no obligation on the part of plaintiffs to reimburse Aetna in respect of any defense costs and claims expenses or other sums in addition to the dollar amounts specified as the liability limits of the policies of insurance reinsured by the various certificates of facultative reinsurance.


 Aetna moves to dismiss the instant action, arguing that it is not justiciable in federal court because it fails to present an "actual controversy" necessary for the issuance of declaratory relief. See 28 U.S.C. § 2201. A federal court's authority to grant such relief under the Act "extends to the articles III limits on the court's power to adjudicate disputes." AC and S, Inc. v. Aetna Casualty & Sur. Co., 666 F.2d 819, 822 (3d Cir. 1981). *fn5" Federal courts are precluded by Article III from rendering advisory opinions. Rather, for adjudication of issues in federal court, "concrete legal issues, presented in actual cases, not abstractions are requisite. This is as true of declaratory judgments as any other field." Golden v. Zwickler, supra, 394 U.S. at 108 quoting United Pub. Workers of Am. v. Mitchell, supra, 330 U.S. at 89. *fn6" A justiciable controversy, as distinguished for a dispute that is hypothetical or abstract, "must be definite and concrete, touching the legal relations of parties having adverse legal interests. . . . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, supra, 300 U.S. at 240-41. This standard was elaborated upon by the Supreme Court in Maryland Casualty Co. v. Pac. Coal & Oil Co., supra, 312 U.S. 270, as follows:

 The difference between an abstract question and a "controversy" contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether 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 issurance of a declaratory judgment. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-242, 81 L. Ed. 617, 57 S. Ct. 461 .

 Id. at 273. See generally 10A C. Wright & A. Miller, Federal Practice and Procedure, § 2757 (2d ed. 1983). In short, a controversy is justiciable under the Act only if it presents the plaintiff with a present danger or dilemma, and not a danger or dilemma which is contingent upon the happening of certain future or hypothetical events. See, e.g., Golden v. Zwickler, supra, 394 U.S. at 108. *fn7"

 In the instant case, plaintiffs seek a declaratory judgment with respect to their potential liability to reimburse Aetna for expenses and costs in excess of the limits established by the certificates of facultative insurance issued by plaintiffs to Aetna. Such liability, however, depends upon a determination of Aetna's liability to reimburse Robins for such costs and expenses pursuant to the primary and excess policies of insurance issued by Aetna. This question is centrally at issued in the Virginia litigation, and remains at present unresolved. No party either to the instant action or the Virginia litigation has paid or has even been adjudged liable to pay the defense costs and claims expenses in excess of the various policy limits.Whether, in the future, such sums will be paid or become legally payable it is, on this record, impossible to determine.Thus, prior to a determination of liability in the Virginia litigation, and prior to an adjudication of the grounds upon which such liability would be imposed, any decision by this Court in this case would be highly speculative and theoretical.

 Additionally, an adjudication of the issues in the instant case by this Court at this time could readily be rendered moot by the eventual outcome of the Virginia litigation. If the Virginia court determines that Aetna is not liable to reimburse Robins for claims expenses and defense costs in excess of the relevant policy limits, then Aetna could make no demand for additional payments from its reinsurers.Moreover, even if the Virginia court were to hold Aetna liable for such excess costs and expenses, Aetna may nevertheless not demand additional payments from some or all of the plaintiffs, since in certain policy years some of the layers of reinsurance may not have been reached.

 The court in the Virginia litigation is also being asked to select the applicable theory for determining when an injury has "occurred" for purposes of triggering Aetna's insurance obligations. The theory of occurrence adopted by the Virginia court will determine which year's insurance coverage is applicable to each injury and will thus identify the reinsurance coverage applicable to each claim. The resolution of each of these issues will affect the existence and extent of any dispute between Aetna and plaintiffs with respect to payments in excess of the reinsurance certificate limits. Consequently, until such time as these underlying issues are resolved in the Virginia litigation, the possibility and scope of plaintiffs' liability to Aetna remain very much in doubt, and there is no "actual controversy" within the meaning of the Act in the instant case. *fn8"

 This Court must heed the oft recited admonition that "it is not the function of a United States District Court to sit in judgment of these nice and intriguing questions which today may readily imagine, but may never in fact come to pass." American Fidelity & Casualty Co. v. Pennsylvania Threshermen & Farmers' Mut. Casualty Ins. Co., 280 F.2d 453, 461 (5th Cir. 1960). See also MacMillian-Bloedel, Inc. v. Firemen's Ins. Co. of Newark, 558 F. Supp. 596, 599 (S.D. Ala. 1983); M & M Transp. Co. v. U.S. Indus., Inc., supra, 416 F. Supp. at 870. Plaintiffs simply may not litigate in this Court issues which may never arise in fact or affect them to their disadvantage. To speculate as to a possible resolution of the questions at issue in the Virginia litigation, and to seek a declaratory judgment based on such hypothetical results is actually to ask the opinion of this Court with reference to a situation that may never arise. The Constitution, however, precludes this Court from joining such speculation.

 The Court is aware that the Act

 meets a real need and should be liberally construed to accomplish the purpose intended, i.e., to afford a speedy and inexpensive method of adjudicating legal disputes . . . and to settle legal rights and remove uncertainty and insecurity from legal relationships without awaiting a violation of the rights or a disturbance of the relationships.

 Aetna Casualty & Sur. Co. v. Quarles, 92 F.2d 321, 325 (4th Cir. 1937); See also Broadview Chemical Corp. v. Loctite Corp., 474 F.2d 1391, 1393 (2d Cir. 1973). However, plaintiff has failed to demonstrate that a declaratory judgment in this case would effectuate these intended purposes. *fn9" As the Court has explained, the uncertainty and insecurity that cloud the jural relationships between Aetna and its various reinsurers can be removed only after the resolution of the underlying dispute between Aetna and Robins in the Virginia litigation. Thus, even if it were constitutionally permissible for this Court to adjudicate plaintiffs' claims in the instant action, and regardless of the ultimate determination of such issues, this Court simply could not settle at the legal issues between, determine all the legal rights among, and dispel all the uncertainties and insecurities of the parties in this and the Virginia lawsuits.

 Plaintiffs' argument that declaratory relief is necessary in the instant action to prevent them from waiving their contract defenses against Aetna's potential demands for reimbursement in excess of the limits established in the reinsurance certificates is similarly unpersuasive. As one commentator has explained:

 [T]he requirements of justiciability are not met if the complainant merely alleges that he "is at a loss to know what course to pursue." The Act is not designed to eliminate the function of attorneys. There must be adverse parties with adverse legal interests.

 6A J. Moore, Moore's Federal Practice P57.12, at 57-111 (2d ed. 1983) (footnotes omitted), quoting Duart Mfg. Co. v. Philad Co., 30 F. Supp. 777, 780 (D. Del. 1939). See also M & M Transp. Co. v. U.S. Indus., Inc., supra, 416 F. Supp. at 871.


 In summary, plaintiffs have failed to establish that they are confronted with a present and unconditional danger or dilemma emanating from a real and substantial dispute between the parties. The instant action, therefore, does not present an "actual controversy" within the meaning of the Act, and is not currently justiciable in federal court. Accordingly, Aetna's motion to dismiss the amended complaint pursuant to Rule 12(b), Fed. R. Civ. P., is granted, and the action is dismissed without prejudice.

 It is so ordered.

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