Newsletter

Declaratory Judgment Ripe for Adjudication Even Though Retention Not Yet Met

August 2011

The United States District Court for the Southern District of Texas refused to dismiss an insurer's declaratory judgment action simply because the applicable policy's self-insured retention had not yet been satisfied.  Darwin Select Ins. Co. v. Laminack, Pirtle & Martines, L.L.P., 2011 WL 2174970 (S.D. Tex. June 3, 2011).  The insurer sought a declaratory judgment that it had no duty to defend or indemnify the insured for a legal malpractice suit.  The insured moved to dismiss, arguing that the insurer's action was not yet ripe since the retention had not been satisfied and there was no significant indication that it would be satisfied.  The court denied the motion, noting that Texas law permits a court to issue a declaratory judgment if the duty to defend and the duty to indemnify turn on the same principle and the court concludes as a matter of law that there is no duty to defend.  The court found no legal authority suggesting that this result should be different merely because the self-insured retention had not yet been satisfied.  The court further noted that the insurer had provided convincing evidence that the underlying suit likely would exhaust the retention.  Accordingly, the court concluded that the insurer's declaratory judgment action was of sufficient immediacy and reality to be ripe for adjudication.

Read Time: 1 min
Jump to top of page

Wiley Rein LLP Cookie Preference Center

Your Privacy

When you visit our website, we use cookies on your browser to collect information. The information collected might relate to you, your preferences, or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. For more information about how we use Cookies, please see our Privacy Policy.

Strictly Necessary Cookies

Always Active

Necessary cookies enable core functionality such as security, network management, and accessibility. These cookies may only be disabled by changing your browser settings, but this may affect how the website functions.

Functional Cookies

Always Active

Some functions of the site require remembering user choices, for example your cookie preference, or keyword search highlighting. These do not store any personal information.

Form Submissions

Always Active

When submitting your data, for example on a contact form or event registration, a cookie might be used to monitor the state of your submission across pages.

Performance Cookies

Performance cookies help us improve our website by collecting and reporting information on its usage. We access and process information from these cookies at an aggregate level.

Powered by Firmseek