UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 04-2281



CHRISTINA MILLER, Administratrix of the Estate
of Travis L. Landis Hott,

                                                 Plaintiff - Appellant,

           versus


AUGUSTA MUTUAL INSURANCE COMPANY,

                                                  Defendant - Appellee,

           and


ROBERT M. LUTTRELL, JR.,

                                                              Defendant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (CA-03-052)


Argued:   September 21, 2005                 Decided:   December 8, 2005


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Robert Woodrow Malone, GAMMON & GRANGE, McLean, Virginia,
for Appellant. Daniel Leroy Fitch, WHARTON, ALDHIZER & WEAVER,
P.L.C., Harrisonburg, Virginia, for Appellee. ON BRIEF: Robert B.
Adams, GAMMON & GRANGE, McLean, Virginia, for Appellant. Kristin
A. Zech, WHARTON, ALDHIZER    &       WEAVER,   P.L.C.,   Harrisonburg,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                  2
PER CURIAM:

     Christina Miller’s son Travis Hott was shot and killed by his

friend Robert M. Luttrell, Jr. (“Mitch”). Miller filed this action

seeking a declaration that her wrongful death claim fell within the

scope of coverage of a homeowner’s insurance policy issued by

Augusta Mutual Insurance Company to Mitch’s parents.               The district

court granted summary judgment in favor of Augusta Mutual, and

Miller appeals.   For the reasons set forth below, we affirm the

decision of the district court.



                                    I.

                                    A.

     On the night of September 14, 2001, 13-year-old Travis Hott

was spending the weekend with his best friend Mitch Luttrell, who

was then 17 years old.      While the boys were watching television in

the living room, Mitch shot Travis at close range with a 9mm

pistol, killing him.    Mitch’s parents were asleep in their bedroom

when the shooting occurred.       The gun belonged to Mitch’s father;

Mitch had retrieved it from the gun safe earlier that evening.               The

facts   surrounding   the   shooting       remain   a   mystery.     Since   the

shooting, Mitch has given different explanations, stating variously

that Travis shot himself; that Mitch accidentally sat on the gun,

which caused it to fire; and that Mitch was waving the gun around




                                       3
and pulled the trigger without knowing that there was a bullet in

the chamber.



                                 B.

     The policy issued by Augusta Mutual requires written notice of

a potential claim to be made as soon as practical.   The policy also

includes a cooperation clause that requires insureds to “secure and

give evidence.”   J.A. 472.

     On November 19, the attorney representing Miller notified the

insurance company that a wrongful death action would be filed.

Prior to that notice, Augusta Mutual (through its agent) had at

least some knowledge of the incident.      Mrs. Luttrell, Mitch’s

mother, spoke to her insurance agent about the incident a few days

after it occurred, inquiring generally about the possibility of

coverage, but not giving the agent any details about the shooting.

And about ten days after the shooting, Miller personally visited

the insurance agent and spoke about the shooting, although Miller

at that time did not mention a lawsuit.

     Over the next two months, Augusta Mutual made repeated efforts

to get a statement from Mitch and advised him and his parents of

their duties under the policy to cooperate with Augusta Mutual’s

investigation.    By this time, however, it was clear that charges

would be filed against Mitch, and Mitch’s criminal attorneys

informed Augusta Mutual that they would not permit Mitch to make


                                 4
any statements about the shooting while the criminal charges were

pending.    A preliminary hearing on Mitch’s criminal charges was

held in December 2001.            The state court found probable cause to

charge Luttrell with second-degree murder and use of a firearm in

the commission of a felony.         In January 2002, a grand jury formally

indicted Mitch on those charges. Shortly after Mitch was indicted,

Miller filed in state court a wrongful death action against Mitch

and his father.

     On January 21, 2002, Mitch and his parents gave statements

under    oath    as   part   of   Augusta   Mutual’s   investigation   of   the

shooting.       Mitch, who was accompanied by his criminal attorney,

refused to answer any questions about the shooting, asserting his

Fifth Amendment rights as his attorney advised him to do.               Given

Mitch’s refusal to provide any statements to Augusta Mutual, the

company concluded that he breached his duty to cooperate.              Augusta

Mutual thus declined to defend Mitch in Miller’s wrongful death

action.1        Mitch pleaded guilty to involuntary manslaughter in

September 2002 and was sentenced to 10 years imprisonment.

     In October 2002, Miller voluntarily dismissed her state-court

wrongful death action. A week later, she filed in federal district

court (based on diversity of citizenship) another wrongful death

action against Mitch and his father.           Augusta Mutual defended Mr.



     1
      The company did, however, provide a defense to Mr. Luttrell,
Mitch’s father, with regard to the wrongful death suit.

                                        5
Luttrell, but still refused to defend Mitch.   Mitch defaulted, and

on June 17, 2003, the district court granted judgment in favor of

Miller on the issue of Mitch’s liability for Travis’s death.    The

court did not at that time consider the question of the damages to

which Miller might be entitled.

     Shortly after the entry of default against Mitch, Miller filed

this action against Augusta Mutual, seeking a determination of her

rights under the Luttrells’ homeowners policy.       Augusta Mutual

moved for summary judgment. In that motion, Augusta Mutual argued,

among other things, that the complaint should be dismissed for

failure to join the Luttrells, who Augusta Mutual contended were

indispensable parties. At a hearing on the pending motions, Miller

argued that, as a third-party beneficiary of the insurance policy,

she stood in Mitch’s shoes as to the coverage question and that he

was not a necessary party.   After a discussion in chambers with the

district court, the parties agreed that Mitch would be joined as a

defendant.   Miller amended her complaint and added Mitch as a

defendant.

     Several months later, before ruling on Augusta Mutual’s still-

pending motion for summary judgment, the district court informed

the parties that it believed Mitch should be re-aligned as a

plaintiff, since his interests were adverse to Augusta Mutual and,

at least as to the basic question of whether there should be

coverage, consistent with Miller’s interests.      However, because


                                  6
Augusta Mutual was for purposes of diversity jurisdiction a citizen

of   Virginia,   aligning   Mitch   (also   a    Virginia   resident)    as   a

plaintiff would destroy diversity jurisdiction. The court informed

the attorneys that if Mitch remained a party to the case, the court

would re-align him as a plaintiff and then dismiss the case for

lack of subject matter jurisdiction. Alternatively, if the parties

agreed, the court would dismiss Mitch from the action, retain

jurisdiction, and issue its ruling.             The parties agreed to the

dismissal of Mitch from the action.

       Thereafter, the district court ruled on Augusta Mutual’s

pending summary judgment motion.          The court concluded that Mitch

breached his duty to cooperate by asserting his Fifth Amendment

rights and declining to give a statement to Augusta Mutual.                The

court therefore concluded that the Augusta Mutual policy was void

as to Mitch and that Augusta Mutual had no obligation to defend

Mitch against Miller’s wrongful death claim or pay any judgment

that   might   ultimately   be   entered    against   him.     This     appeal

followed.



                                    II.

       On appeal, Miller contends that once the district court

dismissed Mitch as a defendant, she lacked standing to maintain

this declaratory judgment action, because Virginia law requires a

judgment to first be entered against the insured before a third


                                     7
party    can    bring    an     action     directly    against    the   tortfeasor’s

insurer.       Thus, Miller contends that the district court lacked

subject matter jurisdiction over her claim.                    On the merits of the

coverage question, she claims that the district court erred by

granting summary judgment in favor of Augusta Mutual.



                                           III.

     We consider first Miller’s claim that she lacked standing to

maintain the declaratory judgment action and that the district

court therefore lacked subject matter jurisdiction over her claim.

     The Constitution limits federal court jurisdiction to cases

and controversies.            See U.S. Const. art. III, § 2.         The concept of

standing--which requires that the plaintiff have a sufficiently

personal       stake    in     the   outcome      of   the    litigation--forms   an

indispensable          part    of    the    Article     III     case-or-controversy

requirement.       See Simon v. Eastern Kentucky Welfare Rights Org.,

, 38 (1976); White Tail Park, Inc. v. Stroube, 

, 458 (4th Cir. 2005).2

     Miller’s argument that she lacks standing is based on certain

aspects of Virginia law.             Under Virginia law, direct actions by an


     2
      There is another branch of the standing doctrine--prudential
standing--that springs not from the Article III case-or-controversy
requirement but instead “embodies judicially self-imposed limits on
the exercise of federal jurisdiction.”      Elk Grove Unified Sch.
Dist. v. Newdow, 

, ___, 

, 2308 (2004)
(internal quotation marks omitted). In this case we are concerned
only with Article III standing requirements.

                                             8
injured third-party against an insurer are not permitted until a

judgment has been entered against the insured tortfeasor.             See

United Servs. Auto. Ass’n v. Nationwide Mutual Ins. Co., 

, 788 (Va. 1978).       Miller contends that by virtue of these

Virginia   requirements,    she   lacked   standing   to   maintain   the

declaratory judgment action, because no final judgment had been

entered against Mitch when she commenced this action.3           Miller

contends that Mitch was a necessary and indispensable party from

the beginning, that his addition to the action cured the standing

problem because as an insured Mitch clearly had standing to ask for

a declaration of Augusta Mutual’s obligations, and that Mitch’s

subsequent dismissal from the action re-instated the previously

unrecognized standing problem.4




     3
      As mentioned previously, Mitch defaulted in the federal
wrongful death action. The district court entered an order holding
Mitch liable for Travis’s death, but, by the time the notice of
appeal in this case was filed, the court had not yet entered an
order awarding damages. The district court’s docket indicates that
the court has since entered an order awarding Miller damages in
excess of $250,000.
     4
      Miller and Augusta Mutual acquiesced in the district court’s
decision to dismiss Mitch, and Miller never argued below that she
lacked standing to maintain the declaratory judgment action.
Nonetheless, because standing implicates the subject-matter
jurisdiction of federal courts, we are obligated to ensure that the
constitutional standing requirements have been satisfied, whether
or not the issue has been timely raised by the parties.         See
Juidice v. Vail, 

, 331 (1977) (“Although raised by
neither of the parties, we are first obliged to examine the
standing of appellees, as a matter of the case-or-controversy
requirement associated with Art. III. . . .”).

                                    9
     Preliminarily, we note that whether a plaintiff in federal

court has standing to maintain an action is a question of federal,

not state law.    See Phillips Petrol. Co. v. Shutts, 

,

804 (1985) (“Standing to sue in any Article III court is, of

course, a federal question which does not depend on the party’s

prior standing in state court.”); White v. National Union Fire Ins.

Co., 

, 167 (4th Cir. 1990) (“Federal standards guide

the inquiry as to the propriety of declaratory relief in federal

courts,   even   when   the   case   is   under   the   court’s   diversity

jurisdiction.”). Thus, even if Virginia courts would conclude that

Miller lacked standing to pursue a declaratory judgment action

against Augusta Mutual,5 it does not follow from that conclusion

that Miller lacks standing to pursue a declaratory judgment action

in federal court.       Whether Miller has standing to maintain this

declaratory judgment action is a question that must be resolved

under well-established principles of federal law.

     A declaratory judgment may be issued only if the Article III

case-or-controversy requirements are satisfied.          See 28 U.S.C.A. §


     5
      It is not even clear that Virginia courts would conclude that
Miller lacked standing to maintain a declaratory judgment action in
state court.    While Virginia law prohibits third-parties from
bringing direct actions against an insurer before judgment has been
entered, the Virginia Supreme Court has permitted (albeit without
discussion of the standing question) an injured party to bring a
declaratory judgment action against the tortfeasor’s insurer before
obtaining a judgment against the tortfeasor. See Craig v. Dye, 

, 10 (Va. 2000); USAA Cas. Ins. Co. v. Hensley, 

, 793 (Va. 1996); Providence Washington Ins. Co. v. Gheen, 

, 333 (Va. 1994).

                                     10
2201(a)   (West   1994)    (stating      that       “[i]n    a   case   of   actual

controversy within its jurisdiction,” a federal court “may declare

the rights and other legal relations of any interested party

seeking such declaration”); Aetna Life Ins. Co. v. Haworth, 

, 241 (1937) (explaining that the “actual controversy”

requirement is synonymous with the Article III requirements).

“Although declaratory judgments are frequently sought in advance of

the full harm expected, they must still present a justiciable

controversy   rather     than    abstract,      hypothetical       or   contingent

questions.”    St. Thomas-St. John Hotel & Tourism Ass’n v. United

States Virgin Islands, 

, 240 (3d Cir. 2000) (internal

quotation marks omitted)).

     Whether the subject of a declaratory judgment action is a

sufficiently live controversy rather than an abstract question “is

necessarily one of degree, and it would be difficult, if it would

be possible, to fashion a precise test for determining in every

case whether there is such a controversy.”                  Maryland Cas. Co. v.

Pacific Coal & Oil Co., 

, 273 (1941).                 “Basically, the

question in each case is whether the facts alleged, under all the

circumstances,    show    that   there     is   a    substantial    controversy,

between parties having adverse legal interests, of sufficient

immediacy and reality to warrant the issuance of a declaratory

judgment.”    Id.; see 

(“The test for a case

or controversy, the constitutional inquiry, is whether the dispute


                                      11
is definite and concrete, touching the legal relations of parties

having    adverse      legal     interests.”    (internal       quotation    marks

omitted)).

     We believe these requirements are easily met in this case.

When Miller commenced this action, the district court in her

wrongful death case had already entered against Mitch a default

judgment on liability.          Thus, while there was at the time of filing

a question about the extent of damages that would be awarded, there

was no doubt that some amount of damages would be awarded.                    The

certainty     of   a   damage    award   against    one    of   Augusta   Mutual’s

insureds thus makes the coverage question definite and concrete.

Miller and Augusta Mutual clearly have adverse legal interests, and

a ruling that Augusta Mutual would or would not be required to

answer for the damages that would be assessed against Mitch would

resolve   a    real,    concrete     question      based   on   existing    facts.

Accordingly, we conclude that, as a matter of federal law, Miller

had standing in her own right to pursue her declaratory judgment

action against Augusta Mutual, without regard to whether Mitch was

a party to the action.          See Maryland Casualty 

(in case where insurance company brought declaratory judgment

action against its insured and third-party injured by its insured,

Court concluded that an actual controversy existed between the

insurance company and the injured third-party); American States

Ins. Co. v. Bailey, 

, 368 (5th Cir. 1998) (in case


                                         12
where insurer brought declaratory judgment action against its

insured and the parties injured by the insureds, court concluded

that there was a case or controversy even though injured parties’

claims against insured had not been reduced to judgment); Federal

Kemper Ins. Co. v. Rauscher, 

, 353 (3d Cir. 1986)

(concluding that entry of default against tortfeasor in insurer’s

declaratory judgment action against tortfeasor and injured parties

did not require entry of judgment against injured parties, because

they had “standing to defend the declaratory judgment action

despite the absence of . . . the actual insured”); Vermont Mut.

Ins. Co. v. Everette, 

, 1186 (E.D. Va. 1995)

(applying Virginia law and concluding that actual controversy for

purposes of Declaratory Judgment Act existed between insurer and

injured third party despite entry of default judgment against

insured tortfeasors).    Because Miller had standing to bring this

action, the district court had subject matter jurisdiction over her

claim.



                                 IV.

         We turn now to Miller’s challenges to the district court’s

rulings on the merits of her claim.    The district court concluded

that by asserting his Fifth Amendment rights and refusing to

provide a statement to Augusta Mutual, Mitch breached his duty

under the policy to cooperate with Augusta Mutual’s investigation


                                 13
of    Miller’s    claim.    The   district    court      thus    granted   summary

judgment in favor of Augusta Mutual.                We review the district

court’s grant of summary judgment de novo, applying the same

standards as the district court.            See Gallagher v. Reliance Std.

Life Ins. Co., 

, 268 (4th Cir. 2002).

       Under Virginia law, a duty-to-cooperate clause creates a

condition precedent to an insurer’s liability under the policy.                  A

material breach of the duty to cooperate relieves the insurer of

its    liability    under   the   policy,    even   if    the    insurer   is   not

prejudiced by the lack of cooperation.              See Cooper v. Employers

Mut. Liability Ins. Co., 

, 214 (Va. 1958).                   As the

district court concluded, Mitch breached his duty to cooperate when

he asserted his Fifth Amendment rights and declined to give a

statement.       See Powell v United States Fidelity & Guaranty Co., 

, 274 (4th Cir. 1996) (applying Virginia law and concluding

that insureds’ assertion of Fifth Amendment rights amounted to

breach of obligation to cooperate with insurer:                 “[T]hey may avoid

incriminating themselves by refusing to submit to relevant requests

made by USF&G under the policy provision, although to do so may

ultimately cost them insurance coverage. . . .”).                  Because Mitch

was the only other person in the room when Travis was shot, his

refusal to give a statement is clearly a material breach of his

duty to cooperate.




                                      14
     Miller does not directly dispute this analysis.      That is, she

does not argue that an insured’s assertion of his Fifth Amendment

rights should not be viewed as a breach of the duty to cooperate.6

Instead,   Miller   makes   various   tangential   arguments   that   she

believes undermine the district court’s ruling and render the

granting of summary judgment premature.



                                  A.

     Miller first contends that there is a question of fact as to

when Augusta Mutual received notice of the claim.        Miller claims

that Augusta Mutual, through the agent that sold the Luttrells the

policy, knew about the shooting within a few days after it happened




     6
      Miller does, however, argue that Augusta Mutual failed to
prove that Mitch breached his duty of cooperation. Under Virginia
law, the insurer carries the ultimate burden of proving that the
insured breached his duty of cooperation. See Erie Ins. Exchange
v. Meeks, 

, 456 (Va. 1982). Once Mitch asserted his
Fifth Amendment rights during the statement under oath, counsel for
Augusta Mutual clarified that Mitch was refusing to answer any
questions about the shooting, and the questioning ended. Miller
apparently believes that to prove a refusal to cooperate, Augusta
Mutual was required to ask a series of specific questions about
what happened the night of the shooting. See Brief of Appellant at
26 (“As [Augusta Mutual] has the burden of proving its insured’s
non-cooperation it cannot, as a matter of law, carry that burden
without a record of the information that it was trying to obtain.
All that this record shows is that the insured answered every
question that he was asked.”). This argument is without merit.
Mitch made it clear that he would not answer any questions about
the shooting, and the blanket invocation of his Fifth Amendment
rights sufficiently establishes his failure to cooperate.

                                  15
but yet waited two months to begin investigating the case.7               Miller

contends that Augusta Mutual’s failure to immediately investigate

the   claim    makes   Mitch’s     subsequent      breach    of   the     policy

meaningless.     See Continental Cas. Co. v. Burton, 

,

1193-94 (4th Cir. 1986) (stating that under Virginia law, “to

establish that the insured has breached a cooperation clause . . .,

the insurer must prove that the insured willfully breached the

clause in a material or essential particular and that the insurer

made a reasonable effort to secure the insured’s cooperation.”

(emphasis added)).

      We disagree.     Even assuming that the oral notices given by

Miller and Mrs. Luttrell to the insurance agent were sufficient,

the   record    establishes      that    Augusta    Mutual    made      repeated

(unsuccessful) efforts to get information about the shooting from

the Luttrells.    Even if, as Miller asserts, Augusta Mutual took no

action for two months after receiving oral notice of the incident,

we believe that Augusta Mutual’s efforts at investigating the

incident were reasonable as a matter of law.            Miller’s assertion



      7
      As noted previously, Mrs. Luttrell spoke to her insurance
agent about the shooting a few days after it occurred, inquiring
generally about the possibility of coverage, but not giving the
agent any details about the shooting. And about ten days after the
shooting, Miller visited the insurance agent and spoke about the
shooting, although Miller at that time did not mention a lawsuit.
The shooting happened on September 14, 2001; Augusta Mutual began
formally investigating the incident on November 19, 2001, when
Miller’s attorney informed the company that a wrongful death action
would be filed.

                                        16
that Augusta Mutual could have convinced Mitch to explain what

happened if the company had tried to interview him immediately

after the shooting (when he was giving conflicting statements to

the police) is sheer speculation that is insufficient to create a

genuine issue of material fact on this issue.



                                           B.

     Miller also contends that the policy did not require Mitch to

give a statement under oath, and that his assertion of his Fifth

Amendment rights therefore did not breach the policy. We disagree.

     Although one section of the Augusta Mutual policy specifically

requires       the   insured    to     provide    statements    under      oath    when

requested, the liability section of the policy includes no such

requirement.         That   the      liability    section    did   not     require    a

statement under oath, however, does not mean that the Luttrells

could refuse to give such a statement if the company asked.                        The

liability section of the policy requires the insureds to “secure

and give evidence,” a requirement that is broad enough to require

the Luttrells to submit to an examination under oath if that is how

Augusta Mutual chose to proceed.             Thus, even if the policy did not

require    a    statement      under    oath,    Mitch’s    refusal   to    give   any

statement at all violated his obligation to “give evidence.”                       Cf.

MetLife Auto. & Home v. Cunningham, 

, 22 (Mass. Ct.

App. 2003) (“The Belands first claim that the policy did not


                                           17
require     an    examination     under        oath   and,    consequently,     that

Cunningham’s assertion of his Fifth Amendment rights during the

course of the examination was of no consequence.                 That is simply a

non sequitur.       Cunningham did not object to providing information

under oath; he more broadly objected to providing any information

in any form.       The fact that he executed that objection during an

examination under oath was a mere happenstance.”).



                                          C.

     Miller also contends that Augusta Mutual breached its duty to

defend Mitch because it did not provide a separate attorney for him

when he was brought in to give a statement under oath.                  According

to Miller, this breach by Augusta Mutual rendered irrelevant

Mitch’s subsequent breach of his duty to cooperate.                      Again we

disagree.        Through the policy, Augusta Mutual had a contractual

duty to defend the Luttrells, including Mitch, against claims by

third parties.        The statement under oath, however, was part of

Augusta   Mutual’s     internal    investigation         of   the   incident,    and

Augusta Mutual had no contractual obligation to provide Mitch with

an attorney in connection with the company’s own investigation of

the shooting.         Augusta Mutual’s duty to defend thus was not

triggered by the taking of the statement under oath.




                                          18
                                          D.

       Finally, Miller argues that Augusta Mutual was obligated to

inform Mitch when he gave his statement that the assertion of his

Fifth Amendment rights would relieve Augusta Mutual of its duty to

indemnify or defend him.             Miller does not contend that any policy

provision       required      Augusta    Mutual    to     inform   Mitch   of    the

contractual consequences of his impending breach of contract, nor

does she point to any Virginia law that imposes such a requirement.

Instead, she contends that the requirement is simply a “matter of

good conscience, fair dealing, public policy, and pure equity.”

Brief of Appellant at 28.

       It is not the place of a federal court sitting in diversity to

create new law based on our view, or a litigant’s view, of the

commands of good conscience or fair dealing.                Instead, our role is

to apply the governing state law, or, if necessary, predict how the

state’s highest court would rule on an unsettled issue. See, e.g.,

Private Mortgage Inv. Servs., Inc. v. Hotel & Club Assocs., Inc.,

, 312 (4th Cir. 2002).                     Given the absence of any

authority for Miller’s argument either in the language of the

policy or the requirements of Virginia law, we reject her claim

that       Augusta   Mutual    was    required    to    inform   Mitch   about   the

consequences of asserting his Fifth Amendment rights.8


       8
      In any event, we note that Augusta Mutual consistently
reminded the Luttrells of their duty to cooperate, see J.A. 432,
434, and that shortly before the statements-under-oath were taken,

                                          19
                                     V.

     To summarize, we conclude that Miller had standing in her own

right to maintain this declaratory judgment action against Augusta

Mutual.   The district court’s decision to dismiss Mitch from the

action therefore did not deprive the court of subject matter

jurisdiction over Miller’s declaratory judgment claim.              On the

merits of Miller’s claim, we agree with the district court that

Mitch breached his duty of cooperation and that Augusta Mutual was

therefore relieved of its duties under the policy.

     Accordingly,   the   district    court’s   order   granting   summary

judgment in favor of Augusta Mutual is affirmed.



                                                                   AFFIRMED




Augusta Mutual specifically advised Mitch and his parents of the
consequences of a failure to cooperate. See J.A. 416-17.

                                     20