"I conclude that this action does not qualify as a proper case or controversy," wrote Judge Alan S. Gold. "Even if all the allegations in the complaint are true, [National Union] has not alleged a judgment or settlement that would exhaust the primary insurance and trigger its own excess policies.

"The parties' liabilities at this time are merely contingent and may never materialize," the judge continued.

Judge Gold said National Union may file an amended complaint if a controversy--that its policies will indeed be called upon by F. Vicino--arises.

Amerisure Cleared of Coverage

In other drywall-related litigation out of the Southern District of Florida, a judge ruled Amerisure Mutual Insurance Co. will not have to defend a builder against drywall-related lawsuits because policies between the two were written after damages in an underlying case occurred.

Amerisure sought a summary judgment against Albanese Popkin the Oaks Development Group, which is being sued by a homeowner alleging damage due to the alleged corrosive effects of Chinese drywall.

Amerisure issued a commercial general liability policy to Albanese in January 2008. The suit against Albanese relates to alleged damaged first reported by the homeowners in 2006 but Albanese, and the homeowners, argue that the damage was continuous.

"The fact that the damage was continuous in nature is irrelevant to the court's analysis," wrote Judge Kenneth A. Marra in granting Amerisure's motion. "Therefore, there is no coverage or duty to defend."