I have noticed a marked increase in declaratory judgment actions being filed by insurers of defendants in personal injury, premises liability, wrongful death and dog bite cases. The usual basis for the declaratory judgment action is that the insurer asserts in its pleadings that there is no insurance for the event that caused the injury, most often claiming that an exclusion in the policy applies. It has been my experience that most declaratory judgment actions are mere posturing by the defendant’s insurer and any response to a declaratory judgment actions should not concede any issues that are in contention. Below is a sample response to a declaratory judgment action. Similar responses have been filed in other cases. Obviously, every case is different and the following is solely as sample and should not be used for anything but educational purposes or for a new lawyer to familiarize herself with what a response might look like before drafting her own response to a motion for declaratory judgment.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ANSWER OF DEFENDANT John Doe TO PLAINTIFFS’ PETITION FOR DECLARATORY JUDGMENT
COMES NOW, John Doe, individually, and as next friend of John Doe, Defendant in the above styled action and hereby files this Answer to Plaintiffs’ Petition For Declaratory Judgment and shows the Court as follows:
FIRST DEFENSE
The Petition fails to state a claim upon which relief can be granted.
SECOND DEFENSE
The Petition is barred by the doctrines of estoppel, laches, and/or waiver.
THIRD DEFENSE
The Petition is barred due to the absence of any legitimate controversy.
FOURTH DEFENSE
There may be a lack of jurisdiction over the subject matter, lack of personal jurisdiction over this Defendant, and/or venue is improper.
FIFTH DEFENSE
Plaintiffs, or either of them, lack standing to assert the claims or raise the issues in the Petition.
SIXTH DEFENSE
The Petition against this Defendant should be dismissed because Plaintiffs, or either of them, are not the proper party plaintiff to this action.
SEVENTH DEFENSE
The Petition should be dismissed for failure to join parties necessary for a just adjudication of the issues under Rule 19.
EIGHTH DEFENSE
Upon information and belief, and in order to avoid a waiver of certain defenses, this Defendant states that the Petition should be dismissed because diversity or jurisdiction does not exist between the proper party Plaintiffs and Defendant.
NINTH DEFENSE
The Petition should be dismissed because Plaintiffs did not timely send a proper reservation of rights notice to the Insureds.
TENTH DEFENSE
As a tenth defense, Defendant responds to the numbered paragraphs of the Petition as follows:
1.
Denied as stated. In further response to the allegations contained in paragraph 1 of the Petition, Defendant admits that John Doe, and John Doe have made claims on John Doe and John Doe arising from an incident with a gun that occurred on or around December 25, 2013 in DeKalb County, Georgia. Defendant denies that there is an actual controversy due to, among other things, Insurer’s failure to timely send a proper reservation of rights notice to the Insureds. Defendant states that it can neither admit nor deny the remaining allegations contained in paragraph 1 of the Petition for lack of sufficient knowledge and information to form a belief as to the truth thereof, and puts Plaintiff on strict notice thereof. Defendant does not have a certified copy of the policies in question.
2.
Defendant lacks knowledge or information sufficient to form a belief about the allegations contained in Paragraph 2 of the Petition and therefore deny same.
3.
Upon information and belief, Defendant admits the allegations contained in paragraph 3 of the Petition.
4.
Defendant admits the allegations contained in paragraph 4 of the Petition.
5.
Admitted that the amount in controversy exceeds $75,000. Defendant lacks knowledge or information sufficient to admit diversity and therefore denies same.
6.
Defendant lacks knowledge or information sufficient to form a belief about the allegations contained in Paragraph 6 of the Petition and therefore deny same.
7.
Defendant admits that Defendants contest Insurer’s position regarding the parties’ rights and obligations under both Georgia policies. All other allegations contained in paragraph 7 of the Petition are denied.
8.
Defendant denies the allegations contained in paragraph 8 of the Petition. In further response to the allegations contained in paragraph 8 of the Petition, there being no justiciable issue, the Court is without authority to provide the requested relief sought by Plaintiffs.
9.
Denied as stated as Defendant lacks knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 9 of the Petition.
10.
Defendant admits the allegations in paragraph 10 of the Petition.
11.
Defendant admits that allegations in paragraph 11 of the Petition.
12.
Denied as stated. In further response to the allegations contained in paragraph 12 of the Petition, Defendant admits that John Doe brought at least three (3) guns with him to the event and that at some point John Doe retrieved the guns from his vehicle. Defendant denies the remaining allegations of paragraph 12.
13.
Denied as stated. In further response to the allegations contained in paragraph 13 of the Petition, Defendant admits that some of the children at the home began playing with the guns and that John Doe negligently shot John Doe in the face and leg with one of the guns. All other allegations contained in paragraph 13 of the Petition are denied.
14.
Defendant admits the allegations in paragraph 14 of the Petition.
15.
Defendant can neither admit nor deny the allegations contained in paragraph 15 of the Petition for lack of sufficient knowledge and information to form a belief as to the truth thereof, and puts Plaintiff on strict notice thereof. Defendant does not have a certified copy of the policies in question.
16.
Defendant can neither admit nor deny the allegations contained in paragraph 16 of the Petition for lack of sufficient knowledge and information to form a belief as to the truth thereof, and puts Plaintiff on strict notice thereof. Defendant does not have a certified copy of the policies in question.
17.
Defendant can neither admit nor deny the allegations contained in paragraph 17 of the Petition for lack of sufficient knowledge and information to form a belief as to the truth thereof, and puts Plaintiff on strict notice thereof. Defendant does not have a certified copy of the policies in question.
18.
Defendant denies the allegations contained in paragraph 18 of the Petition. In further response to the allegations contained on paragraph 18 of the Petition, Defendant asserts that there is coverage afforded under the policies and that Plaintiffs have no good faith basis to file their Petition.
19.
In response to the allegations contained in paragraph 19 of the Petition, Defendant adopts and re-alleges herein her responses to the allegations contained in paragraphs 1 through 18 of the Petition.
20.
Defendant can neither admit nor deny the allegations contained in paragraph 20 of the Petition for lack of sufficient knowledge and information to form a belief as to the truth thereof, and puts Plaintiff on strict notice thereof. Defendant does not have a certified copy of the policies in question.
21.
Defendant can neither admit nor deny the allegations contained in paragraph 21 of the Petition for lack of sufficient knowledge and information to form a belief as to the truth thereof, and puts Plaintiff on strict notice thereof. Defendant does not have a certified copy of the policies in question.
22.
Defendant can neither admit nor deny the allegations contained in paragraph 22 of the Petition for lack of sufficient knowledge and information to form a belief as to the truth thereof, and puts Plaintiff on strict notice thereof. Defendant does not have a certified copy of the policies in question.
23.
Defendant can neither admit nor deny the allegations contained in paragraph 23 of the Petition for lack of sufficient knowledge and information to form a belief as to the truth thereof, and puts Plaintiff on strict notice thereof. Defendant does not have a certified copy of the policies in question.
24.
Defendant denies the allegations contained in Paragraph 24 of the Petition.
25.
Denied as stated. In further response to the allegations contained in paragraph 25 of the Petition, Defendant admits that Insurer seeks a judicial declaration that it is not obligated to provide coverage, indemnification, or a defense to Insureds for claims arising from the alleged December 25, 2013 incident but denies the remaining allegations of Paragraph 25.
26.
In response to the allegations contained in paragraph 26 of the Petition, Defendant adopts and re-alleges herein her responses to the allegations contained in paragraphs 1 through 25 of the Petition.
27.
Defendant can neither admit nor deny the allegations contained in paragraph 27 of the Petition for lack of sufficient knowledge and information to form a belief as to the truth thereof, and puts Plaintiff on strict notice thereof. Defendant does not have a certified copy of the policies in question.
28.
Defendant can neither admit nor deny the allegations contained in paragraph 28 of the Petition for lack of sufficient knowledge and information to form a belief as to the truth thereof, and puts Plaintiff on strict notice thereof. Defendant does not have a certified copy of the policies in question.
29.
Defendant denies the allegations contained in Paragraph 29 of the Petition.
30.
Denied as stated. In further response to the allegations contained in paragraph 30 of the Petition, Defendant admits that Insurer seeks a judicial declaration that it is not obligated to provide coverage, indemnification, or a defense to Insureds for the bodily injury claims arising from the alleged December 25, 2013 incident but denies the remaining allegations of Paragraph 30.
31.
Defendant denies the allegations contained in the last, unnumbered paragraph of the Petition for Declaratory Judgment and prayer for relief, and denies that Plaintiffs are entitled to all elements of the relief they seek to wit, paragraphs (a), (b), (c), and (d).
Any allegation set forth in Plaintiffs’ Petition For Declaratory Judgment which has not been admitted, denied, or otherwise specifically addressed above, is hereby denied with the exception of any statement which constitutes an admission by the Plaintiff.
WHEREFORE, Defendant John Doe, individually and as next friend of John Doe, denies that Plaintiffs Insurer Property and Casualty Insurance Company and Insurer Indemnity Company are entitled to any of the relief they seek, and further prays as follows:
- That this Court enter judgment in favor or Defendant John Doe on all claims for declaratory judgment asserted in the Petition, with all costs against Plaintiffs;
- For a declaration by the Court that Plaintiffs are obligated to provide coverage, indemnification, and a defense to the Insureds under both Insurer policies for the claims arising from the December 25, 2013 incident;
- That Defendant John Doe have a trial by jury on any and all issues so triable; and
- For such other and further relief as it deems just and proper under the circumstances, including attorneys’ fees and expenses of litigation.
Respectfully submitted this 29th day of August, 2014.
By: s/Robert J. Fleming
ROBERT J. FLEMING
Georgia Bar. No. 263475
Attorney for Defendant
John Doe, Individually and as next friend of John Doe
KATZ WRIGHT & FLEMING LLC
150 E. PONCE De Leon Ave, Suite 300
Decatur, Georgia 30030
(404) 240-0400
(404) 240-0401 Fax
CERTIFICATE OF SERVICE
I hereby certify that on August 29, 2013, I have electronically filed the ANSWER OF DEFENDANT John Doe TO PLAINTIFFS’ PETITION FOR DECLARATORY JUDGMENT with the Clerk of Courts using the CM/ECF system which will automatically send notifications of such filing to the following attorneys of record: