                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        March 31, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
RICKY N. BASER,

             Plaintiff - Appellant,

v.                                                          No. 13-5036
                                               (D.C. No. 4:12-CV-00315-GKF-TLW)
STATE FARM MUTUAL                                           (N.D. Okla.)
AUTOMOBILE INSURANCE CO.,

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before PHILLIPS, Circuit Judge, PORFILIO, Senior Circuit Judge, and
BALDOCK, Circuit Judge.


      Ricky N. Baser brought this declaratory judgment action against State Farm

Mutual Automobile Insurance Company, seeking to establish the availability of

coverage for Silas Jones, who is insured by State Farm but not a party to this suit.

Mr. Baser was injured in a car accident with Mr. Jones and is suing him in Oklahoma

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Federal
Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
state court. Significantly, Mr. Baser has not yet obtained a judgment against

Mr. Jones and is not party to Mr. Jones’s insurance contract with State Farm. In this

suit, Mr. Baser alleges that State Farm has tendered the limits of Mr. Jones’s primary

coverage but that State Farm disputes that it should now pay more. According to the

Complaint, State Farm believes that Mr. Baser’s own underinsured motorist (UM)

policy (with a different insurer) should next fulfill any potential judgment, rather

than Mr. Jones’s secondary umbrella policy with State Farm.

      On State Farm’s motion, the district court dismissed Mr. Baser’s claim under

Federal Rule of Civil Procedure 12(b)(6) for want of an actual controversy. To grant

relief under the Declaratory Judgment Act, 28 U.S.C. § 2201(a), there must be an

“actual controversy” that is justiciable under Article III of the Constitution.

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007). But here, the court

ruled, Article III’s requirements were not satisfied, as is generally true in cases where

a non-party to an insurance contract attempts to bring a direct action against an

insurance company:

      “With respect to the obligation to pay any judgment, the same is not yet
      in existence, may never be in existence and in any event such obligation
      is between the insured and the Defendant. The only way Plaintiff, once
      possessed of the judgment, can come at the Defendant is indirectly on
      the basis of a right of the insured against its insurer through the device
      of garnishment. The only parties between whom an actual controversy
      presently exists with respect to eventual liability to Plaintiff are the
      Defendant and its insured. The best that can be said on this point is that
      Plaintiff’s claim is potential and contingent.”




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Aplt. App., Tab 6 at 3 (quoting Cross v. Occidental Fire & Casualty Co.,

347 F. Supp. 342, 343-44 (W.D. Okla. 1972)). Put another way, the court recognized

that a plaintiff in Mr. Baser’s position “‘has no legally cognizable or protectable

interest in the controversy and he will not have one unless and until he should

succeed in the negligence action, for it is only at that point that [the insurance

company] may have a legal obligation to pay.’” Id. (quoting Knight ex rel. Ellis v.

Miller, 195 P.3d 372, 375 (Okla. 2008)).

       We review de novo the district court’s dismissal under Rule 12(b)(6), Burnett

v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013), and

agree that Mr. Baser has failed to allege an actual controversy between himself and

State Farm. Mr. Baser simply seeks a hypothetical determination that Mr. Jones’s

umbrella policy would be triggered if he prevails in the pending state action and if he

is awarded damages in excess of Mr. Jones’s primary coverage. But hypothetical

disagreements about the law are not enough to invoke the jurisdiction of federal

courts. See Columbian Fin. Corp. v. BancInsure, Inc., 650 F.3d 1372, 1376

(10th Cir. 2011) (“It is not the role of federal courts to resolve abstract issues of

law.”). Rather, we require “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 of facts.” Id. (emphasis

and quotation omitted); see id. (requiring a “‘substantial controversy . . . of sufficient

immediacy and reality to warrant the issuance of a declaratory judgment’” (quoting


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MedImmune, Inc., 549 U.S. at 127)). Mr. Baser fails to allege an actual controversy

because this direct action against State Farm is predicated entirely upon such

hypothetical facts. See Gray v. N.M. Military Inst., 249 F.2d 28, 30 (10th Cir. 1957)

(holding that before a tort-claimant can establish the liability of an insurer for a tort,

he must first establish the tort: “The most that can be said is that, as between the

Insurer and the tort-claimant, there exists the makings of a potential controversy in

the future.”).

       Mr. Baser cites Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S.

270 (1941), as authority for allowing an injured non-party to an insurance contract to

seek declaratory relief without a judgment on the underlying tort claims. But

Maryland allowed no such thing; rather, in Maryland, an insurance company filed a

declaratory judgment action seeking a determination that it was not liable to defend

or indemnify its own insured for a car accident involving another person, who the

company joined in the lawsuit. Id. at 272. In that case, the Court concluded there

was an actual controversy between the insurance company and the injured person, but

only because the injured person would not be bound by a judgment of non-coverage

and could seek to relitigate the issue in state court if he were not made a party. See

id. at 274. While these are “good reason[s] for permitting the joinder of persons in

Plaintiff’s position by an insurer seeking declaratory relief,” Cross, 347 F. Supp.

at 344, none of them are present in a case like this, in which the injured person sues

the insurance company for a determination of liability. Indeed, absent a statutory


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directive, we are unaware of any case in which a court found that an actual

controversy existed under analogous facts.

      Mr. Baser also argues that his case is not like other direct actions involving

non-parties to an insurance contract. Quoting Tuck v. United Services Automobile

Ass’n, 859 F.2d 842, 847 (10th Cir. 1988), Mr. Baser seems to contend that because

the liability he seeks to impose could not be imposed against Mr. Jones, his action is

not a direct action. Aplt. Br. at 6. We disagree. Unlike the plaintiffs in Tuck, we

believe Mr. Baser is “seeking to impose liability on [State Farm] for the negligence

of [its insured].” 859 F.2d at 847. The only unique thing here is that Mr. Jones’s

negligence and any resulting damages have yet to be determined. Accordingly, the

alleged controversy between Mr. Baser and State Farm is far from “definite and

concrete.” MedImmune, Inc., 549 U.S. at 127 (internal quotation marks omitted).

      We have evaluated the balance of Mr. Baser’s arguments, as well as the

relevant legal authorities, the record on appeal, and the parties’ appellate materials,

and we agree with the district court’s concise and accurate analysis dismissing this

case for lack of an actual controversy. We therefore affirm for substantially the same

reasons stated in the district court’s order dated March 6, 2013. We deny Mr. Baser’s

motion to certify questions to the Oklahoma Supreme Court.

                                                Entered for the Court


                                                Gregory A. Phillips
                                                Circuit Judge


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