After Juan Molina was killed in a construction site accident, his estate brought a wrongful death claim against multiple defendants including Santos Remodeling, Inc., a landscaping company.
Santos was insured by Amguard Insurance Company. The Amguard policy excludes bodily injury to an employee of the insured arising out of and in the course of employment.
In a declaratory judgment action against Santos, Amguard alleged that Santos breached its duties under the policy because it never notified Amguard of Molina's death and has not cooperated in Amguard's defense of the claim. Amguard alleged that is has been prejudiced by those failures both in its investigation of coverage and in its defense of the claim.
Molina's estate was also named as a defendant in the declaratory judgment action. (Typically all parties to an underlying case should be parties in a dj action.) The estate moved to dismiss for improper venue. That motion was granted, so that the only remaining defendant was Santos.
Amguard's motion to serve Santos by publication was granted. Amguard published a notice of the litigation in the local paper. When Santos did not answer the complaint, Amguard moved for a default judgment. That motion was allowed in Amguard Insurance Company v. Santos Remodeling, Inc., 2016 WL 424961 (D. Mass.) (unpublished).
It's hard for me to understand why Molina's estate sought to be dismissed from the case instead of litigating on the merits. Santos is likely judgment-proof, so any recovery against it must come from the insurer. Maybe the estate felt that the insurer's facts were so strong, either on coverage or defense, that it was not worth fighting for coverage. Maybe other defendants in the underlying matter have sufficient coverage that Molina's coverage is irrelevant. (But if so, where are the carriers for the codefendants -- surely they would want to share liability with other defendants?)
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