Great American Ins. v. Precision Products
Opinion
USCA1 Opinion
August 7, 1992
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1083
GREAT AMERICAN INSURANCE COMPANY
AND AMERICAN NATIONAL FIRE INSURANCE COMPANY,
Plaintiffs, Appellants,
v.
PRECISION PRODUCTS CORPORATION
AND NORTHROP CORPORATION,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Lay,* Senior Circuit Judge,
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and Pieras,** District Judge.
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Seymour Kagan with whom Herzfeld & Rubin, Thomas E. Peisch, Mary
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Elizabeth Van Dyck and Conn, Kavanaugh, Rosenthal & Peisch were on
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brief for appellants.
Kirk A. Pasich with whom Mary K. Barnes, Wendy I. Kirchick, Hill,
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Wynne, Troop & Meisinger, James Dillon, Susan Insoft and Goodwin,
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Procter & Hoar were on brief for appellee, Northrop Corporation.
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* Of the Eighth Circuit, sitting by designation.
** Of the District of Puerto Rico, sitting by designation.
Per Curiam: Great American Insurance Company and
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American National Fire Insurance Company appeal from the order
of the district court1 dismissing their action in that court
under Colorado River Water Conservation District v. United
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States, 424 U.S. 800 (1976), based on the existence of
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parallel proceedings in a California court. We affirm on the
basis of the district court's thorough and well-reasoned
opinion.
Northrop Corporation (Northrop) filed suit in
California in January of 1989 claiming that several of its
insurers failed to acknowledge coverage of property damages
sought in certain environmental litigation brought against
Northrop. In July of 1991, Great American Insurance Company
and American National Fire Insurance Company, who were not
originally named as parties in Northrop's California
litigation, filed this action in the federal district court in
Massachusetts seeking a declaratory judgment that they were
not obligated to defend or indemnify Northrop in the
environmental claims against it; in addition they sought
damages for fraudulent misrepresentation, fraudulent
concealment, and negligent misrepresentation.2
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1The Honorable Robert E. Keeton, United States District Judge
for the District of Massachusetts.
2Plaintiffs urge that the Colorado River doctrine should not
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be applied because of the joinder of the dissimilar fraud
claims filed in the federal court. Cf. McLaughlin v. United
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Virginia Bank, 955 F.2d 930 (4th Cir. 1992). We note that
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these claims arose out of the California litigation involving
acts, witnesses and lawyers all located in California. Judge
-2-
In August of 1991, Northrop amended its complaint in
the California action to add Great American, American National
and twelve other insurance carriers as defendants. Northrop
also filed a motion seeking dismissal of the pending action in
Massachusetts under the Colorado River doctrine, asserting the
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need for deference to parallel state proceedings. After an
analysis of the relevant factors as established in Colorado
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River and subsequent Supreme Court and First Circuit
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precedents, the district court declined federal jurisdiction
and granted Northrop's motion. On appeal, the two insurance
companies challenge the district court's order dismissing its
action as an abuse of discretion. We affirm the order of the
district court.
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Keeton acknowledged the fact that there were non-coverage
claims but observed:
This brings me to one final difficulty regarding the
ultimate disposition of the claims made by plaintiffs.
Although this question has not been addressed in the
precedents, I conclude that since it is within my
discretion to dismiss plaintiffs' coverage claim it is
within my discretion to dismiss the entire action. In so
deciding, however, I recognize that a different answer
might have been reached if plaintiffs' tort claims had
been brought independently. Plaintiffs did not choose
that course, however, and it would be inappropriate for
me to retain jurisdiction over the tort claims only on an
assumption, unsupported by the record, that a choice for
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