upon which relief may be granted. The defendant further contends that the affidavit annexed to the notice of motion may not be considered; and that by the use of the words 'alleged' and 'allegedly' in the complaint allegations relating to the happening of the accident and injuries suffered by the infant defendant, the complaint negates the existence of a substantial justiciable controversy. This latter contention I reject.
The instant motion is obviously brought under F.R.Civ.P. 12(f). The defense to which this motion is addressed is 'redundant' which is one of the accepted grounds for striking such a defense. It is redundant because it is implicit in the defendant's denial of the controversy alleged in paragraph 10 of the complaint.
The law is well established that an insurer, where there is a conflict with an insured over the coverage afforded in a policy, may proceed under the Federal Declaratory Judgments Act to resolve such conflict, where suit has been commenced by a claimant against the insured. The question presently before this Court is whether 'actual controversy' exists in the absence of an existing claim by one purporting to fall within the coverage extended by the insurance policy. The language of the Act itself, 28 U.S.C. § 2201, providing that 'in a case of actual controversy within its jurisdiction * * * any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, * * *' has been liberally construed. Alfred Hofmann, Inc. v. Knitting Machines Corp., 3 Cir., 1941, 123 F.2d 458; Dewey & Almy Chemical Co. v. American Anode, Inc., 3 Cir., 1943, 137 F.2d 68. The phrase 'cases of actual controversy' is interpreted as meaning 'no more than a recognition that the federal judicial power extends only to 'cases' or 'controversies' in the constitutional sense. Aetna Life Insurance Co. (of Hartford, Conn.) v. Haworth, 1937, 300 U.S. 227, 239, 240, 57 S. Ct. 461, 464, 81 L. Ed. 617, 108 A.L.R. 1000. This constitutional requirement, as applied to declaratory judgments, is not interpreted in any narrow or technical sense. Aetna Life Insurance Co. (of Hartford, Conn.) v. Haworth, supra; Maryland Casualty Co. v. Pacific Coal & Oil Co., 1941, 312 U.S. 270, 61 S. Ct. 510, 85 L. Ed. 826. There must be a concrete case touching the legal relations of parties having adverse legal interests, and susceptible 'of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged.' The distinction is between a case 'appropriate for judicial determination' on the one hand, and a 'difference or dispute of a hypothetical or abstract character' on the other. * * * This distinction, as the court pointed out in Maryland Casualty Company v. Pacific Coal & Oil Co., supra, 312 U.S. at page 273, 61 S. Ct. at page 512, 85 L. Ed. 826 'is necessarily one of degree." Dewey & Almy Chemical Co. v. American Anode, Inc., supra, 137 F.2d at p. 70.
In the case at bar, according to the allegations of the complaint, the plaintiff-insurer asserts and the defendant-insured denies that the condition precedent prescribed in the plaintiff's policy, has been breached. Although no action is as yet pending in behalf of the accidentally injured infant, the insurer is on actual notice of the occurrence of the accident, and of the severity of the injuries. An action may be brought in behalf of the infant at any time between the date of the happening of the accident and two years next succeeding his attainment of majority. Meanwhile, unless the insurer can secure an adjudication respecting its liability under the policy, upon the facts alleged in the complaint, it may be put to the labor and expense of investigation which may, several years later, be found to have been for naught.
The complaint being sufficient, the general issue with respect to its critical allegations having been joined in the body of the answer, the separate defense attacked in the motion is not only redundant, but inappropriate. Accordingly, the motion to strike this defense will be granted. Let an order in accordance with this opinion be submitted.