                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-1848


AUTO-OWNERS INSURANCE COMPANY,

                Plaintiff – Appellant,

           v.

MADISON AT PARK WEST PROPERTY OWNERS ASSOCIATION, INC.;
MADISON AT PARK WEST TARRAGON LLC, a South Carolina Limited
Liability Company; NORTHLAND MADISON AT PARK WEST LLC, a
South   Carolina  Limited   Liability  Company;   NORTHLAND
PROPERTIES MANAGEMENT LLC, a Delaware Limited Liability
Company; NORTHLAND INVESTMENT CORPORATION, a Delaware
Corporation; ELIZABETH O'DONNELL; MARY ANN NEATON; JOHN
BUIEL, on behalf of themselves and others similarly
situated,

                Defendants – Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Margaret B. Seymour, District
Judge. (2:09-cv-00802-MBS)


Argued:   September 19, 2012                 Decided:   October 26, 2012


Before MOTZ, KING, and WYNN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


ARGUED: Morgan Stuart Templeton, WALL TEMPLETON & HALDRUP, PA,
Charleston,  South  Carolina,  for  Appellant.     Clayton  B.
McCullough, MCCULLOUGH KHAN, LLC, Charleston, South Carolina;
Michael S. Seekings, LEATH, BOUCH & SEEKINGS, LLP, Charleston,
South Carolina, for Appellees. ON BRIEF: Taylor H. Stair, WALL
TEMPLETON & HALDRUP, PA, Charleston, South Carolina, for
Appellant.   W. Jefferson Leath, Jr., LEATH, BOUCH & SEEKINGS,
LLP,   Charleston,  South  Carolina,  for  Appellees  Elizabeth
O'Donnell, Mary Ann Neaton, and John Buiel; Jamie A. Khan,
MCCULLOUGH KHAN, LLC, Charleston, South Carolina, for Appellees
Madison at Park West Property Owners Association, Inc., Madison
at Park West Tarragon LLC, Northland Madison at Park West LLC,
Northland Properties Management LLC, and Northland Investment
Corporation.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       In    these    declaratory         judgment      proceedings,      the   district

court ruled that the plaintiff, Auto-Owners Insurance Company

(“Auto-Owners”), is obliged to defend and indemnify three of the

defendants, Madison at Park West Property Owners Association,

Inc.       (the     “POA”),        Madison      at      Park     West     Tarragon      LLC

(“Tarragon”), and Northland Madison at Park West LLC (“Northland

Madison”), in an ongoing state action concerning the development

and    maintenance      of    a    condominium        complex    in     Mount   Pleasant,

South Carolina.         See Auto-Owners Ins. Co. v. Madison at Park W.

Prop.      Owners    Ass’n,       Inc.,   No.       2:09-cv-00802     (D.S.C.    July    6,

2011)       (the    “Decision”). 1           Significantly,        in    rendering      its

Decision, the court only “assume[d], without deciding,” a key

condition of coverage under the relevant Auto-Owners insurance

policies:           “that    an    ‘occurrence’         caused    ‘property     damage’”

within the policies’ terms.                  See id. at 9.            Consequently, the

court did not issue a final decision, and we are constrained to

dismiss this appeal for lack of jurisdiction.




       1
       The Decision is found at J.A. 770-86. (Citations herein
to “J.A. __” refer to the contents of the Joint Appendix filed
by the parties in this appeal.)



                                                3
                                             I.

     By its Complaint of March 30, 2009, Auto-Owners invoked the

district     court’s       diversity         jurisdiction             under    28     U.S.C.

§ 1332(a)    and     sought       a    declaration        pursuant        to    28    U.S.C.

§ 2201(a)    that     three       commercial        general       liability          policies

issued by it to the POA “do not provide liability insurance

coverage in the underlying lawsuit.”                    See Complaint ¶¶ 5-7. 2           The

“underlying lawsuit” referenced in Auto-Owners’s Complaint is a

class action brought in the Court of Common Pleas for Charleston

County,    South    Carolina,         by    Madison     at     Park    West    condominium

owners    Elizabeth       O’Donnell,        Mary    Ann   Neaton,       and    John     Buiel

against     the     POA,     Tarragon,            Northland      Madison,        Northland

Properties Management LLC, and Northland Investment Corporation.

The condominium owners have alleged in the underlying lawsuit

that,    inter    alia,    they       are   entitled      to    monetary       damages   for

water    intrusion    resulting         from      the   defective       development       and

maintenance of the condominium complex.                        Auto-Owners named all

parties to the underlying lawsuit, which remains pending, as

defendants in these declaratory judgment proceedings.

     Auto-Owners’s Complaint asserted, among other theories of

non-coverage, that “an ‘occurrence’ and ‘property damage’ may


     2
          The Complaint, including its exhibits, is found at J.A.
15-187.



                                              4
not be present as defined under the policies.”                           See Complaint

¶ 7; see also id. ¶ 13 (reciting common policy provision that

“[t]his insurance applies to . . . ‘property damages’ only if

[the]   ‘property        damage’    is    caused     by    an     ‘occurrence’      . . .

during the policy period”).               On October 23, 2009, Auto-Owners

filed a motion for partial summary judgment, without contending

that there was no covered “occurrence” and resulting “property

damage”;     rather,        Auto-Owners        pursued           other    non-coverage

theories.        In reply to the defendants’ joint opposition to Auto-

Owners’s summary         judgment    motion,       however,       Auto-Owners      argued

that the defendants bore the burden of proving “that ‘property

damage’    . . .     occur[red]     within     the    policy       period,”   and    had

“failed     to     set   forth     any    evidence        that    ‘property     damage’

occurred within any policy period.”                   J.A. 486.          On April 23,

2010, the district court denied Auto-Owners’s motion, as well as

a cross-motion for summary judgment that had been filed by the

condominium-owner defendants, on the ground that material facts

were genuinely disputed.

     During closing arguments at a subsequent bench trial on

July 27, 2010, Auto-Owners elaborated on its stance that the

defendants were required, but had failed, to prove a covered

“occurrence”       and   “property       damage.”         See    J.A.    736-38.      For

example, Auto-Owners argued to the district court that



                                           5
     you have not heard any evidence, you have not heard
     any testimony, you have not received any stipulation
     of fact, you have not seen any exhibit that in fact
     concludes that an occurrence took place and that
     property damages occurred during the policy period.
     You have received no evidence of that.    So, we would
     respectfully submit [that the defendants] have not met
     their burden of proof from an insured’s standpoint to
     establish those things.

Id. at 737-38.      In response, the defendants maintained that they

had not addressed the “occurrence” and “property damage” issue

because the closing arguments were the first time Auto-Owners

had raised that issue.        See id. at 766.

     By its Decision of July 6, 2011, encompassing its “Findings

of Fact and Conclusions of Law,” the district court ruled that

Auto-Owners    is     obliged      to   defend      and   indemnify    the    POA,

Tarragon, and Northland Madison in the underlying lawsuit.                       In

so doing, the court acknowledged Auto-Owners’s argument that the

defendants    failed    to   produce       evidence    “that   would   support    a

finding   that      there    had    been       an   ‘occurrence’   that      caused

‘property damage,’” but determined that such matter was “not

properly before the Court” because it “was never discussed in

Auto-Owners’ briefing.”            Decision 9 n.3.        The court deemed it

appropriate, “[f]or the purposes of this declaratory judgment

action, [to] assume[], without deciding, that an ‘occurrence’

caused ‘property damage’ within the Policy period and that Auto-




                                           6
Owners could not properly deny coverage on that basis.”                               Id. at

9. 3

       The district court noted that its Decision “concludes this

action” and directed the Clerk of Court “to close the case.”

See Decision 17.            On July 7, 2011, the court entered a Judgment

reflecting that the “[d]efendants are entitled to coverage under

the     general         liability     policies         provided       by     [Auto-Owners]

assuming         that    an   occurrence          that    caused       property       damage

triggered        coverage     as    discussed     in     the    Findings     of     Fact   and

Conclusions of Law entered by the court on July 6, 2011.”                                  See

Auto-Owners Ins. Co. v. Madison at Park W. Prop. Owners Ass’n,

Inc.,      No.    2:09-cv-00802       (D.S.C.      July        7,   2011),    ECF    No.   96

(emphasis added).

       Auto-Owners         timely     noted   this       appeal,      and    the     parties

expressed agreement in their subsequent briefs that we possess

appellate jurisdiction pursuant to 28 U.S.C. § 1291 (providing,

in pertinent part, that “[t]he courts of appeals . . . shall

have jurisdiction of appeals from all final decisions of the


       3
       Proceeding on the assumption that an “occurrence” caused
“property damage,” the district court assessed — and largely
rejected   —   Auto-Owners’s   assertion  of  various  coverage
exclusions and limitations. See Decision 9-17. The court also
found that, because Tarragon was identified as an additional
insured in the Auto-Owners policies and had simply changed its
name to Northland Madison during the coverage period, Northland
Madison also is an additional insured. Id. at 7-9, 17.



                                              7
district      courts    of    the       United    States,    . . .     except     where    a

direct review may be had in the Supreme Court”).                            Although the

briefs   addressed       the       district      court’s    mere   assumption       of    an

“occurrence” and resulting “property damage” — with Auto-Owners

claiming that the court erred in not resolving that issue, and

the defendants responding that the issue could not be properly

decided absent a judgment in the underlying lawsuit — neither

side    acknowledged         the    potential         jurisdictional    ramifications.

Thus, we advised the parties to be prepared to answer questions

at oral argument as to the finality of the district court’s

Decision and existence of jurisdiction for this appeal, and we

directed      them      to     file       post-argument         supplemental       briefs

expounding on their jurisdictional arguments.                         The parties have

continued to maintain, though not convincingly, that this appeal

is properly before us.



                                             II.

       We “are obliged to inquire into jurisdiction sua sponte if

there is doubt as to its existence.”                     Dickens v. Aetna Life Ins.

Co., 677 F.3d 228, 230 (4th Cir. 2012) (citing Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977)).                              In

ascertaining      “whether         we    possess       jurisdiction    of    an   appeal,

. . .    we    assess    [the       issue]       de    novo.”      United     States      v.



                                              8
Jefferson, 546 F.3d 300, 308 (4th Cir. 2008) (citing Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)).

                                               A.

       Of    course,        “[j]urisdiction          in        a    court     of     appeals      is

generally        reserved       for   the    ‘final       decisions          of    the    district

courts      of    the     United      States.’”           Dickens,        677      F.3d    at    231

(quoting 28 U.S.C. § 1291).                 A “final decision” under § 1291 has

been described as one that “ends the litigation on the merits

and    leaves       nothing      for    the       court        to    do     but    execute       the

judgment.”         Catlin v. United States, 324 U.S. 229, 233 (1945).

Section      1291’s       finality     requirement             serves,       inter      alia,     “to

eliminate         the     universally       disfavored             pursuit    of     ‘piecemeal’

appeals” and “promote[] the interests of judicial efficiency.”

Penn-Am. Ins. Co. v. Mapp, 521 F.3d 290, 294-95 (4th Cir. 2008).

       Mapp involved a declaratory judgment action in which the

district court decided that the insurer (Penn-America) had a

duty   to    defend       its    insured     in     pending         state     litigation,         but

deemed it necessary to await the state court’s judgment before

ruling on whether Penn-America also owed indemnification.                                        See

521 F.3d at 295.                The district court then specified that the

declaratory         judgment       action      “would      be        ‘dismissed         from    [the

court’s]         active    docket      [but]      may     be       reinstated      upon        proper

motion      by    any     party.’”       Id.      (first        alteration         in    original)

(quoting Penn-Am. Ins. Co. v. Mapp, 461 F. Supp. 2d 442, 459

                                                9
(E.D. Va. 2006)).           Rather than pausing for the conclusion of the

state litigation and a subsequent ruling by the district court

on the indemnification question, Penn-America immediately noted

an appeal from the court’s duty-to-defend decision.                              See id. at

294-95.        In        assessing       whether       our    Court     possessed         § 1291

jurisdiction, “we recognized that the removal of a case from a

[district] court’s ‘active docket’ is the functional equivalent

of an administrative closing, which does not end a case on its

merits    or   make       further    litigation         improbable.”           Id.      at    295.

Because      the    district        court       thus    had    not      rendered      a      final

decision, we concluded that we lacked jurisdiction under § 1291

to hear Penn-America’s appeal.                   Id. at 296.

      Here,         by     “assum[ing],           without          deciding,         that       an

‘occurrence’ caused ‘property damage,’” Decision 9, the district

court    acknowledged         that       the    presence      of   an    “occurrence”           and

“property      damage”       was    —     like    the    existence       of    the      duty     to

indemnify      in    Mapp     —      a    live       issue    being     left     unresolved.

Accordingly, notwithstanding the court’s purported Judgment, its

Decision was not a final one, i.e., a decision “‘which puts an

end to the suit, deciding all the points in litigation between

the parties, leaving nothing to be judicially determined, with

nothing remaining to be done, but to enforce by execution what

has   been     determined.’”              See    Clinton      Foods,      Inc.     v.     United

States,    188      F.2d     289,    291       (4th    Cir.   1951)      (quoting         Cox    v.

                                                10
Graves,    Knight        &   Graves,    Inc.,     55     F.2d     217,   218     (4th   Cir.

1932)).        In    these      circumstances,         we   are    plainly       devoid    of

jurisdiction under § 1291 to entertain this appeal.

                                            B.

        As noted above, the parties have unsuccessfully endeavored

to   persuade       us   that    this    appeal     is      legitimately       before     us.

Nonetheless, a couple of the parties’ contentions merit brief

discussion.

      First, both sides assert that, having determined that the

“occurrence” and “property damage” issue was disputed but not

properly before it, the district court was entitled to limit

these     declaratory         judgment      proceedings           to     other    coverage

questions — even though its Decision could later be nullified by

a finding of no covered “occurrence” or “property damage.”                                The

parties’ position is irreconcilable with the express language of

the Declaratory Judgment Act, which authorizes relief only “[i]n

a case of actual controversy.”                   See 28 U.S.C. § 2201(a).               That

is, “the dispute must be a ‘case or controversy’ within the

confines    of      Article     III    of   the   United        States    Constitution.”

White v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 913 F.2d

165, 167 (4th Cir. 1990).               To qualify, “‘[i]t must be a real and

substantial controversy admitting of specific relief through a

decree    of   a     conclusive        character,      as    distinguished         from    an

opinion advising what the law would be upon a hypothetical state

                                            11
of facts.’”          Id. (quoting Aetna Life Ins. Co. of Hartford, Conn.

v. Haworth, 300 U.S. 227, 241 (1937)); see also MedImmune, Inc.

v. Genentech, Inc., 549 U.S. 118, 127 n.7 (2007) (“[A] litigant

may not use a declaratory-judgment action to obtain piecemeal

adjudication of defenses that would not finally and conclusively

resolve the underlying controversy.” (citing Calderon v. Ashmus,

523    U.S.     740,    749    (1998))).          Thus,    the    district       court   was

powerless       to     complete    these     declaratory         judgment     proceedings

without somehow resolving the “occurrence” and “property damage”

issue. 4

       Next,     the     defendants        maintain       that    we    may   review     the

district court’s Decision under the collateral order doctrine

and    Federal       Rule     of   Civil    Procedure       54(b).        See    Cohen    v.

Beneficial       Indus.        Loan      Corp.,     337    U.S.        541,   546   (1949)

(recognizing the applicability of the collateral order doctrine

to    “that     small    class     [of     decisions]      which       finally   determine

claims     of    right      separable       from,    and     collateral       to,   rights

       4
       To be clear, the defect in the district court’s Decision
is its mere assumption that an “occurrence” caused “property
damage” within the relevant coverage period. The deficiency is
not necessarily the failure to await a judgment in the
underlying state litigation, assuming that the “occurrence” and
“property damage” issue could be decided absent such a judgment.
See White, 913 F.2d at 168 (recognizing that “a controversy
[may] exist[] between an insurer and a person injured by the
insured even though the injured person ha[s] not yet obtained a
judgment against the insured” (citing Md. Cas. Co. v. Pac. Coal
& Oil Co., 312 U.S. 270, 274 (1941))).



                                             12
asserted in the action, too important to be denied review and

too independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated”);

Fed.   R.   Civ.   P.     54(b)    (providing      that,    “[w]hen    an    action

presents    more   than    one    claim   for    relief[,]    or    when    multiple

parties are involved, the court may direct entry of a final

judgment as to one or more, but fewer than all, claim or parties

only if the court expressly determines that there is no just

reason for delay”).         Those alternative jurisdictional arguments

need not long detain us.           The collateral order doctrine does not

apply because, inter alia, no claim addressed in the Decision

will be effectively unreviewable on appeal from a true final

judgment in this case.           See Mapp, 521 F.3d at 296-98.             Moreover,

“a Rule 54(b) determination was neither sought by [Auto-Owners]

nor independently made by the district court.”                     See id. at 296

(describing     certification       procedure      for   pursuing     Rule    54(b)

appeal).

                                          C.

       Absent   jurisdiction,       we    must    dismiss    this   appeal.      We

recognize, however, that the district court has numerous options

for    handling    these     declaratory         judgment    proceedings       going

forward.    For instance, the court may resolve — on the merits or

procedural grounds, with or without a stay pending the state

court’s judgment in the underlying litigation — the “occurrence”

                                          13
and “property damage” issue.        Or, the court may determine that

this matter is nonjusticiable for lack of an Article III case or

controversy.       Rather   than   express   our   views   on   any   such

possibilities, we allow the district court to freely exercise

its good judgment in the first instance.



                                   III.

     Pursuant to the foregoing, we dismiss this appeal for lack

of jurisdiction.

                                                                DISMISSED




                                    14
