Monday, November 3, 2008

Dueling DJ Actions -- First-in-Time & Comity Rules

Ace Prop. & Cas. Ins. Co. v. Federal-Mogul Corp.

(1st Dept., decided 10/30/2008)

Defendant insureds brought a DJ action in New Jersey for liability coverage for bodily injury claims arising out of alleged exposure to asbestos-containing products that were manufactured, sold or distributed by defendants' predecessor in interest. Plaintiff insurers subsequently brought their own DJ action in New York state court for the same relief, and defendants successfully moved to stay the New York action to abide the New Jersey action.

In AFFIRMING the lower court's decision, the First Department noted:
The insurers fail to show that the first-filed New Jersey action is vexatious, oppressive or was instituted to obtain some unjust advantage, that New York's interests in this dispute predominate over New Jersey's, or other reason for deviating from the generally followed first-in-time rule (see White Light Prods. v On The Scene Prods., 231 AD2d 90, 96-97 [1997]), under which "the court which has first taken jurisdiction is the one in which the matter should be determined and it is a violation of the rules of comity to interfere" (id. at 96 [internal quotation marks and citations omitted]).

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