           Case: 17-14369   Date Filed: 01/24/2018   Page: 1 of 3


                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14369
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:17-cv-61474-FAM

NATIONAL BUILDERS INSURANCE COMPANY,
f.k.a. Vinings Insurance Company,

                                                     Plaintiff-Appellant,

                                  versus

RQ BUILDING PRODUCTS, INC.,
TOLL BROS., INC.,
c/o CT Corporation System
1200 South Pine Island
Plantation, FL 33324,
HARRIS KREICHMAN,
LORI KREICHMAN,
MATTHEW KREICHMAN, et al.,

                                                     Defendants-Appellees.
                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (January 24, 2018)

Before MARTIN, JILL PRYOR and BLACK, Circuit Judges:
                 Case: 17-14369        Date Filed: 01/24/2018        Page: 2 of 3




PER CURIAM:

       Appellant National Builders Insurance Company (National Builders) appeals

the district court’s order staying its declaratory judgment action 1 as to its duty to

defend and indemnify RQ Building Products and Toll Bros., Inc. in an underlying

state court action. After National Builders filed its declaratory judgment action,

Appellees Harris Kreichman, Lori Kreichman, Matthew Kreichman, and Michael

Kreichman (collectively, the Kreichmans) moved to stay the declaratory judgment

action pending resolution of the underlying state court action. The Kreichmans

argued the duty to indemnify is triggered only if the allegations in the underlying

state court complaint are meritorious, and therefore it would be premature to

determine the duty to indemnify before liability is established. The Kreichmans

made no argument regarding the duty to defend. The district court stayed the

entire case—which it described as “a declaratory judgment action to determine the

insurer’s duty to indemnify”—pending resolution of the underlying state court

action. National Builders appealed.




       1
          “[A] district court’s order staying federal proceedings in favor of pending state litigation
is a ‘final decision’ appealable under 28 U.S.C. § 1291.” Wilton v. Seven Falls Co., 515 U.S.
277, 280-81 (1995) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
10 (1983) (alteration omitted)). A district court’s stay of a declaratory judgment action is
reviewed for abuse of discretion. Id. at 289-90.



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                Case: 17-14369     Date Filed: 01/24/2018   Page: 3 of 3


         Importantly, National Builders does not contend the entry of the stay as to

the duty to indemnify was improper. Rather, National Builders asserts the district

court abused its discretion by also staying the determination of National Builders’

duty to defend, noting the district court never mentioned the duty to defend in its

order.

         As “[t]he duty to defend is separate and apart from the duty to indemnify,”

Trizec Props., Inc. v. Biltmore Constr. Co., 767 F.2d 810, 812 (11th Cir. 1985), the

district court should have separately addressed the duty to defend issues. We

affirm the district court’s stay of the case as to National Builders’ duty to

indemnify, but reverse and remand for further proceedings as to its duty to defend.

         AFFIRMED IN PART and REVERSED AND REMANDED IN PART.




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