Opinion
No. CIV 01-0960 PK/RLP
December 5, 2001
ORDER
THIS MATTER comes on for consideration of Respondent Katie Mares Motion to Dismiss Safeco Insurance Co.'s Petition for Declaratory Judgment or in the Alternative, Motion for Judgment on the Pleadings, filed October 26, 2001 (Doc. 4). Upon consideration thereof, (1) In this declaratory judgment action, 28 U.S.C. § 2201, Petitioner Safeco Insurance Company of America (Safeco) seeks a declaration that it does not owe a duty to defend or indemnify its insured, Respondent Katie Mares (Mares) under a homeowners insurance policy. The primary lawsuit against Mares arises from the death of Respondent Marie Salass son, Margarito Montoya, who was killed while riding an all terrain vehicle (ATV) belonging to Mares. Montoya v. Mares, No. 000-328-CV (Taos County, N.M. 8th Jud. Dist. Ct.) (Taos County lawsuit). The accident occurred during a birthday party held at Maress home. Mares tendered the defense of the Taos County lawsuit to Safeco. Safeco is defending her under a reservation of rights. (2) Mares argues that Safecos declaratory judgment petition should be dismissed because its resolution will require factual determinations that should be determined in the Taos County lawsuit. In the alternative, she argues for judgment on the pleadings that Safeco has a duty to defend. She also seeks attorneys fees from Safeco for having to defend in this declaratory judgment action. (3) After considering the factors in Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494-495 (1942), and State Farm Fire Cas. Co. v. Mhoon, 31 F.3d 979, 982-985 (10th Cir. 1994), the court rules that this declaratory judgment action should proceed. Whether the insurer has a duty to defend is determined with reference to allegations contained in the complaint. Mhoon, 31 F.3d at 985; Bernalillo County Deputy Sheriffs Assn v. Bernalillo, 845 P.2d 789, 791 (N.M. 1992). The court is unpersuaded that resolution of the coverage question will involve factual disputes that are more properly addressed in the Taos County lawsuit where Safeco is not a party. Just as in Mhoon, this declaratory judgment action should promptly settle the coverage question without interfering with the Taos County lawsuit, and Safeco may invoke the federal forum. Mhoon, 31 F.3d at 983-84. Safeco is entitled to a determination of whether as a matter of law there is no coverage and hence no duty to defend. Safeco has indicated that it will proceed by way of a summary judgment motion, Doc. 7 at 6, and, without expressing any opinion on the merits of the coverage dispute, the court declines grant judgment on the pleadings at this time.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED and DECREED that Respondent Katie Mares Motion to Dismiss Safeco Insurance Co.'s Petition for Declaratory Judgment or in the Alternative, Motion for Judgment on the Pleadings, filed October 26, 2001 (Doc. 4), is denied.