(concurring in part and dissenting in part).
I concur in the construction the Court gives to these policy provisions. But I do not think there was a real case below and I therefore dissent from the holding either of jurisdiction or the propriety of the use here of declaratory relief.
The opinion states that “U.S.F. & G. states that in the event of any payment under its policy, it will be subrogated to all rights of the insured * *
That is a thing which may never occur. Until it does the bald fact is that U.S.F. & G. and A.F. & C. are complete strangers. We ought not be refereeing these intramural matches which rest on nothing more than the assertion that some other party has made a contract with still another party which, if now applied. *638to strangers to it, will completely excuse the performance of another contract which concededly is applicable and effective. See American Fidelity & Casualty Co. v. St. Paul-Mercury Indemnity Co., 5 Cir., 1957, 248 F.2d 509, 510-11; Maryland Casualty Co. v. Southern Farm Bureau Casualty Ins. Co., 5 Cir., 1956, 235 F.2d 679, 680; United Services Automobile Association v. Russom, 5 Cir., 1957, 241 F.2d 296, 297; General Insurance Co. v. Western Fire & Casualty Co., 5 Cir., 1957, 241 F.2d 289, 290; American Fidelity & Casualty Co. v. Pennsylvania Threshermen & Farmers’ Mutual Casualty Ins. Co., 5 Cir., 1960, 280 F.2d 453, 455.
Subrogation to rights which maybe-sometime-might come into being ought not to make existing controversies out of presently academic differences. We have declined to make these judicial guesses for parties. Byers v. Byers, 5 Cir., 1958, 254 F.2d 205 and American Fidelity & Casualty Co. v. Pennsylvania Threshermen & Farmers’ Mutual Casualty Ins. Co., supra.
Whether U.S.F. & G. ever has to make a payment out of which we now allow a sort of anticipatory subrogation to spring into being depends on many unknowns. It might win the Kentucky damage suits. In that event all that would be at issue is cost of defense. As to that we have firmly held that that duty is personal to the assured vis-a-vis his own selected insurer. American Fidelity & Casualty Co. v. Pennsylvania Threshermen & Farmers’ Mutual Casualty Ins. Co., supra; cf. Smoot v. State Farm Mutual Automobile Insurance Co., 5 Cir., 1962, 299 F.2d 525. If the cases are merely settled, then a whole host of new problems arise as to whether U.S.F. & G., having an assumed status as a vicarious assured under A.F. & C.’s policy, is entitled to make that insurer make reimbursement for a settlement not made with A.F. & C.’s consent. See, United Services Automobile Association v. Russom, supra. If it is made with A.F. & C.’s consent, the consent itself might be in terms which would resolve the dispute presented before us.
All this merely demonstrates that the debate now raging between these two supposed adversaries may never ripen into something which is real. I would be the last to inject any technical niceties into the Article III “case or controversy” element. Byers v. Byers, 5 Cir., 1958, 254 F.2d 205. But, flexible as declaratory relief is and should be, we should confine ourselves to disputes which are real and present, not those which someday may be. In the meantime we ought not to be serving as a gratuitous board of referees between insurers who can undoubtedly find a better way to resolve these internecine struggles. Brown and Risjord, Loading and Unloading: The Conflict Between Fortuitous Adversaries, 29 Ins. Counsel J. 197 (April 1962).
Until this harvest has ripened we ought not to be saying what should happen to the grain.
I therefore respectfully dissent as to this feature.