for the entire twenty-three years of mining operations which predate the term of that policy. Unlike the position of the Sixth and Fifth Circuits requiring apportionment of both defense and indemnity responsibilities in proportion to the respective periods of coverage under the different insurance policies, Porter v. American Optical Corp., 641 F.2d at 1145, application of the Keene holding to the present defendant would appear to force the defendant to stand and defend claims in numbers completely disproportionate to either parties' reasonable expectations at the time the one year contract was negotiated. Again, this Court does not intend to question the wisdom of the Keene decision. Rather, the Court simply doubts that the Keene court intended its decision to be a beacon for asbestosis litigants to divert pending litigation from other forums by offering a more attractive theory of liability in the District of Columbia.
THE MOTION TO DISMISS
The defendant has sought to have the present case dismissed in favor of the prosecution of the pending Canadian consolidated case. In the alternative, the defendant has urged this Court to exercise its inherent powers, Landis v. North America, 299 U.S. 248, 57 S. Ct. 163, 81 L. Ed. 153 (1936) (Cardozo, J.), to stay this action pending the outcome of the Canadian litigation. In support of its motion the defendant has put forward two reasons for dismissing the current case. These two arguments will be addressed separately.
Before discussing the defendant's grounds for dismissing this action the Court should clarify what it views as the gravamen of plaintiff's suit.
At oral argument on this motion, counsel for the plaintiff did not attempt to conceal the two advantages that plaintiff hoped to obtain by his action in this forum. Apparently, not only is plaintiff attempting to invoke the fruits of the Keene decision as to liability but also seeks to capitalize on the relatively swift summary judgment procedures available under the federal rules. According to the affidavits submitted by Canadian counsel for both parties the Canadian courts have not adopted procedures similar to those found in Rule 56 of the Federal Rules of Civil Procedure. An additional dissimilarity is the fact that declaratory judgments as they have come to be used in the federal courts of the United States have no precise correlate in Canadian jurisprudence. Although it appears that Canadian courts have only endorsed the use of declaratory relief subsequent to the filing of plaintiff's Canadian cause of action, there remains some dispute as to the prospective effect of a declaratory judgment in Canadian courts.
See Great West Steel Industries Ltd. v. Simco & Erie General Insurance Co.  27 O.R. (2d) 379, 382-83. This Court, having viewed the high quality of Brinco's legal representation before this Court, finds it difficult to credit plaintiff's claim that "Brinco [brought this suit in Canada to seek legal defense in the United States] at a time when it did not appreciate the significant legitimate practical benefits that could be derived from litigating in this [District of Columbia] jurisdiction in terms of the saving of both time and expense by both parties." Brinco's Memorandum of Points and Authorities in Opposition to Defendant's Motion to Dismiss, at 27. Instead, this Court believes that plaintiff has its eye on the costs and time associated with litigation not before this Court.
This Court is of the view that the defendant has more accurately portrayed the reason why the plaintiff seeks to invoke this Court's jurisdiction. The legal costs associated with the defense of over 2,000 asbestosis cases covering all twenty-four years of plaintiff corporation's insured existence must indeed weigh heavy on the plaintiff's resources. The earlier that plaintiff obtains a judgment requiring any of the four insurance companies to assume these increasing defense costs the more likely is the plaintiff to remain solvent during the pendency of the Canadian proceedings. As plaintiff's counsel stated at oral argument, "the declaratory relief that we seek here would give us everything we want. It would give us a declaration that they must defend. That's what we need." Hearing Transcript at 13.
Defendant has based its motion to dismiss on two separate grounds. The first is dismissal for plaintiff's failure to join indispensable parties under Rule 19 of the Federal Rules of Civil Procedure. The second argument put forward by defendant is a more general assertion directed at the inherent power of this Court to dismiss duplicative, inconvenient, or inefficient litigation where more satisfactory relief can readily be obtained elsewhere. While defendant's first argument cannot withstand passing scrutiny, the defendant's second claim must be accorded more serious attention.
Defendant Federal asserts that the three other insurance companies which are also defendants in the Canadian action are necessary parties to this action under Federal Rule of Civil Procedure 19(a). Defendant bases this contention on the fact that the insurance contract between plaintiff and defendant contains an "other insurance" provision. See Evergreen Park N. & C. Home, Inc. v. American Eq. Assur. Co., 417 F.2d 1113 (7th Cir. 1969). Under Rule 19(a), Federal must first show that these other insurers must be joined if feasible because either complete relief would not be available in their absence or these absent insurance companies possess an interest which may be prejudiced in their absence. Defendant, arguing that these other insurance companies should be joined in this action, claims that Rule 19(b) requires dismissal because two of the three other necessary insurance companies cannot be joined in this action for reasons of subject matter jurisdiction.
This Court, however, is in agreement with the plaintiff that the considerations required by Rule 19(b) are unnecessary because the defendant has not made out a sufficient showing of indispensability for invocation of Rule 19(a).
The presence of "other insurance" terms in the contested insurance contract does not automatically imply that a judgment by this Court will seriously impair or prejudice the interests of the absent insurance carriers. Each of Brinco's two insurance contracts with the defendant, one for primary and the other for excess liability, contains an "other insurance" clause. These clauses purport to restrict Federal's liability, both primarily and as an insurer of last resort, when Brinco has more than one policy covering a particular claim. Federal contends that these "other insurance" clauses give the absent insurance companies a cognizable "interest" in the outcome of the case before this Court and thus requires joinder of those companies. While defendant's argument has some force when applied to the excess liability insurance policy (the "umbrella" policy),
it is considerably less persuasive when applied to Brinco's primary liability policy. It is principally under the primary liability policy that Brinco seeks recovery for not only past and future judgments but, more importantly, past and future defense costs.
Moreover, this Court need not run the risk of construing all "other insurance" clauses as bestowing indispensability on absent insurance carriers. The D.C. Circuit Court of Appeals in Keene could not have been more clear in its finding that the "doctrine of joint and several tort liability in this context is an accepted means of vindicating the rights of the tort victims." 667 F.2d at 1051. See also Lawlor v. National Screen Service Corp., 349 U.S. 322, 330, 99 L. Ed. 1122, 75 S. Ct. 865 (1955); Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty., Ltd., 207 U.S. App. D.C. 375, 647 F.2d 200, 207-08 (D.C. Cir. 1981).
Under such a view, the plaintiff could select any one of the insurers to defend or indemnify the insured to the limits of their respective insurance contracts. Keene, 667 F.2d at 1051. The selected insurance company would have to seek contribution from other insurers in a subsequent suit. While this Court has not been directed to any Canadian law on this point, the Court is satisfied that the Keene court's finding of joint and several liability
governs this case for the limited purpose of determining the applicability of Rule 19(a) of the Federal Rules of Civil Procedure. While it is true that questions of joinder have been considered to be primarily procedural issues, see Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 125, n.22, 19 L. Ed. 2d 936, 88 S. Ct. 733 (1968), and it is also true that issues of joinder involve a strong interest in maintaining an "independent system for administering justice," Byrd v. Blue Ridge Rural Electric Co. v. New York, 356 U.S. 525, 538, 2 L. Ed. 2d 953, 78 S. Ct. 893 (1958), Canadian substantive law may be relevant to the joinder question before this Court. As Judge Wisdom has noted: "rules of joinder depend on the substantive rights and liabilities of the parties, present and absent. In diversity actions, these substantive rights and liabilities are creatures of state law." Kuchenig v. California Co., 350 F.2d 551, 555-56 (5th Cir. 1965), cert. denied, 382 U.S. 985, 15 L. Ed. 2d 473, 86 S. Ct. 561 (1966). Although this Court can see little gain and conceivably some harm from applying foreign substantive law as a matter of governing state law to a joinder decision in a federal diversity case, foreign law may indeed determine the issue of "indispensability" in this case. For example, if Canadian law did not hold joint tortfeasors severally liable then as a matter of substantive "state" law the absent insurance companies would have a far greater interest in the outcome of this case. This Court, however, need not ascertain whether Canadian substantive law forces this Court to reach a conclusion different from that of the Keene court. The defendant has not brought any precedent to the Court's attention indicating that Canadian law would not hold the defendant severally liable in this case. As such, the defendant has failed to meet his burden as the moving party to make out a claim of indispensability under Rule 19(a). Therefore, this Court finds that the other insurance carriers are not indispensable parties within the meaning of Rule 19(a).
The second contention raised by the defendant in his motion to dismiss is a more general appeal to the discretion of the Court to stay or dismiss this action in favor of the pending consolidated suit in Ontario. The Court has not been furnished with any precedent by the defendant which precisely states the standard for dismissing a diversity case in favor of a suit in a foreign forum which has yet to come to judgment. This Court has no doubt of its inherent authority over its own docket. See Landis v. North American Co., 299 U.S. 248, 81 L. Ed. 153, 57 S. Ct. 163 (1936) (Cardozo, J.). Nevertheless, the Court is also aware of its limited discretion to decline to assume "the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." Colorado River Water Construction Dist. v. United States, 424 U.S. 800, 817, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976). The Supreme Court in Colorado River Water Construction District, however, did go on to list some factors which a court should weigh before dismissing a case because of a parallel suit in another forum. The Colorado Court offered factors such as the order in which jurisdiction was obtained in separate forums, the desirability of avoiding piecemeal litigation, and the inconvenience of the federal forum to the parties. Colorado, 424 U.S. 800, 818, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). More specifically, the Colorado Court stated: "No one factor is necessarily determinative; a careful considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors counselling against that exercise is required." Colorado, 424 U.S. at 818. In order to respond to the defendant's motion to dismiss this action in deference to the Canadian suit this Court has found it necessary to list and weigh the factors in the fashion suggested by the Colorado Court.
Before identifying the factors that this Court must consider in deciding to retain jurisdiction or not, a preliminary problem must be answered. Counsel for either party has not informed the Court of any decisions which clearly state the appropriate degree of deference a federal court owes to proceedings in another country which have yet to reach judgment. This Court is of the view that the standard should be the same as that between two federal courts. This conclusion is supported by two facts in this case. The first fact is simply that the alternate forum is that of Canada, a country that shares the same common law roots as our jurisprudence. Clarkson Co. Ltd. v. Shaheen, 544 F.2d 624, 630 (2d Cir. 1976); Cornfeld v. Investors Overseas, Ltd., 471 F. Supp. 1255 (E.D.N.Y. 1979); Fleeger v. Clarkson Co., Ltd., 86 F.R.D. 388, 392-93 (N.D. Texas 1980). As the Fleeger court aptly stated:
The rationale for comity dismissals is not based simply on lack of familiarity with the particular foreign law, but rather is in deference to the foreign country's legal, judicial, legislative and administrative system of handling disputes over which it has jurisdiction, in a spirit of international cooperation . . . . Certainly, if this Court cannot extend comity to Canada, the comity principle has little vitality in our jurisprudence.