Tuesday, August 16, 2011

For all you civil procedure buffs . . .

Greg Straughn filed a lawsuit alleging that he was injured in a construction site accident while employed by James Czech because the general contractor, Williams Building Company, failed to maintain safe conditions.

Western World Insurance Company had issued a general liability policy to Czech under which Williams was an additional insured. It sought a declaratory judgment that it had no duty to defend or indemnify Williams because Czech had stated on his policy application that he had no employees. Williams filed a counterclaim seeking a declaration that Western World is obligated to defend it.

Czech did not answer the declaratory judgment complaint and was defaulted. Western World moved to dismiss Williams' counterclaim on the ground that the default judgment established that Czech's misrepresentation on his application caused the policy to be rescinded.

Williams opposed the motion on the grounds that the default judgment was improperly entered by the clerk rather than the court, and that the default judgment is interlocutory in nature.

In Western World Ins. Co. v. Czech, __ F.R.D. __, 2011 WL 2460934 (D. Mass.), the court held that a motion for declaratory judgment on the issues of defense and indemnity under an insurance policy are not for a "sum certain," and therefore the clerk was not empowered to enter the default judgment. It also held that in a multi-defendant case a court should withhold granting a default judgment against one defendant until a decision is reached on the merits against the remaining defendants.

1 comment:

Mortgage Insurance Cover said...

Nice post! Thanks for interesting and sympathetic blog.Fantastic!!! Bookmarked this web page that has this striking guidance. Will arrive back to see if there are any updates. You, the author, are a master. Many thanks.