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Endurance American Specialty Insurance Co. v. Joy Grocery, Inc.

United States District Court, M.D. Florida, Orlando Division

December 15, 2017

ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY, Plaintiff,
v.
JOY GROCERY, INC., ESTATE OF NICHOLAS ALLIGOOD, EDUAR MARTINEZ, SEAN F. BOGLE, FOYSAL AHMED, JAMAL UDDIN and AMBAMA, INC., Defendants.

          REPORT AND RECOMMENDATION

          DANIEL C. IRICK UNITES STATES MAGISTRATE JUDGE

         This cause comes before the Court for consideration on the following motions:

         MOTION: MOTION FOR SUMMARY JUDGMENT (Doc. 81)

         FILED: September 27, 2017

         THEREON it is RECOMMENDED that the motion be GRANTED in part.

         MOTION: RENEWED MOTION FOR DEFAULT JUDGMENT (Doc. 90)

         FILED: December 5, 2017

         THEREON it is RECOMMENDED that the motion be GRANTED in part.

         Introduction

         Before the Court are Plaintiff's motion for summary and motion for default judgment. Docs. 81; 90. Between the two motions, Plaintiff seeks unopposed declaratory relief against all Defendants - the Defendants who have appeared (i.e., The Estate of Nicholas Alligood, as represented by Sean F. Bogle as the personal representative of the Estate of Nicholas Alligood (the Estate), Eduar Martinez, and Ambama, Inc.) have not contested summary judgment, and the remaining Defendants (i.e., Joy Grocery, Inc, Foysal Ahmed, and Jamal Uddin) have defaulted. Thus, for the reasons set forth in this Report, the undersigned respectfully recommends that the Court enter judgment against all Defendants and in favor of Plaintiff, granting declaratory relief to Plaintiff as set forth in this Report.

         Procedural Background

         On November 10, 2015, Plaintiff brought a one-count complaint seeking declaratory judgment against Defendants. Doc. 1. In sum, Plaintiff seeks a judgment declaring, in part, that it has no obligation to indemnify or defend Joy Grocery under an insurance policy (the Policy)[1] in relation to an incident that occurred on November 20, 2014. See Docs. 1; 38. On that date, an accident occurred at Joy Grocery in which Eduar Martinez, an employee of Joy Grocery, allegedly negligently discharged a firearm and killed Nicholas Alligood. Immediately after the shooting, Joy Grocery obtained from Plaintiff the Policy to insure the premises of Joy Grocery where the shooting occurred. The Policy, on its face, was effective as of November 20, 2014. Five months later, Plaintiff learned of the November 20, 2014 shooting, and the Estate brought a state court action in Volusia County, Florida related to the shooting against Eduar Martinez, Foysal Ahmed, Jamal Uddin, [2] Joy Grocery, and Ambama, Inc. It is Plaintiff's position in this action - and Plaintiff seeks a declaration that - the Policy is void from its inception and that Plaintiff has no further obligation under the Policy or related to the November 20, 2014 shooting.

         On April 14, 2016, Plaintiff filed a return of service as to Joy Grocery. Doc. 16. Plaintiff then sought and obtained a Clerk's default as to Joy Grocery (Doc. 19), but that Clerk's default was vacated after Plaintiff moved for default judgment against Joy Grocery, and the Court denied that motion (Docs. 26; 27; 28). In denying Plaintiff's motion for default judgment against Joy Grocery, the Court noted that the motion failed to comply with Local Rule 3.01(a), and also called into question Plaintiff's service of process as to Joy Grocery. Doc. 27 at 2-3.

         On September 19, 2016, Plaintiff filed another return of service as to Joy Grocery (Doc. 30) and, upon filing a motion for entry of Clerk's default (Doc. 32), the Clerk entered default as to Joy Grocery (Doc. 33).

         On December 20, 2016, Plaintiff filed a one-count Amended Complaint seeking the same declaratory judgment that it has no obligation to indemnify or defend Joy Grocery in relation to an incident that occurred on November 20, 2014. Doc. 38. The primary difference between the two pleadings is that through the Amended Complaint Plaintiff added Eduar Martinez, Jamal Uddin, Foysal Ahmed, and Ambama, Inc. as Defendants. Compare Doc. 1 with Doc. 38. In the Amended Complaint, Plaintiff requested the following relief, which is essentially identical to the relief requested in the Complaint:

a) Declaring the Policy void from the inception due to the fact that the shooting incident and loss was known to JOY GROCERY prior to its request for issuance of the ENDURANCE Policy and the payment of premiums;
b) Declaring there is no coverage under the ENDURANCE Policy in accordance with the terms of the Insuring Agreement since JOY GROCERY was aware of the shooting incident and loss prior to its request for issuance of the ENDURANCE Policy;
Declaring JOY GROCERY is in breach of the Policy terms and conditions in that it did not provide ENDURANCE with notice of the accident for over five months after it was aware of the accident;
d) Declaring that as a result of the breach of the Policy terms and conditions there is no coverage under the ENDURANCE Policy for any liability which may be assessed against JOY GROCERY in the Underlying Action, arising from the shooting incident at the Insured Premises on November 20, 2014, in a future action;
e) Declaring ENDURANCE has no duty defend and/or indemnify JOY GROCERY for any claims asserted in the Underlying Action arising from the shooting incident of November 20, 2014, in a future action;
f) Declaring the Defendants are estopped from pursuing a claim, defense and/or indemnity against ENDURANCE for any claims in the Underlying Action arising from the shooting incident of November 20, 2014.

         Doc. 38 at 13-14. Plaintiff also attached to the Amended Complaint the state court complaint in the underlying negligence claim related to November 20, 2014 shooting death of Nicholas Alligood (Doc. 38 at 15-26), Policy (Doc. 38 at 27-81), and a fax cover sheet dated November 20, 2014 requesting that the insurance underwriter bind the Policy “as of 12:01 AM 11/20/14” (Doc.38 at 82). The Estate answered the Amended Complaint (Doc. 49), as did Ambama, Inc. (Doc.51) and Eduar Martinez (Doc. 60).

         Initially, the summons issued in relation to the Amended Complaint as to Jamal Uddin and Foysal Ahmed were returned as unexecuted. Docs. 56; 66. However, in July 2017, Plaintiff was finally able to secure service in relation to those Defendants, and filed returns of service in August 2017. Docs. 73; 74.

         On August 21 and 22, 2017, Plaintiff moved for entry of Clerk's default against Jamal Uddin and Foysal Ahmed (Docs. 76; 78), and the Clerk entered default against those Defendants (Docs. 77; 79). The next day, Plaintiff moved for default judgment against Joy Grocery, Jamal Uddin, and Foysal Ahmed. Doc. 80.

         On September 27, 2017, Plaintiff moved for summary judgment against the remaining Defendants that appeared in this action. Doc. 81. The Court immediately ordered Plaintiff to show cause why the motion for summary judgment should not be stricken as untimely - the Case Management and Scheduling Order set the deadline for dispositive motions as August 15, 2017. Doc. 82. In response, Plaintiff asserted that it had “lost track of the Court's deadline” and had ongoing difficulty effectuating service on Jamal Uddin and Foysal Ahmed. Doc. 83. Plaintiff also asserted that considering the motion for summary judgment on its merits would “result in no prejudice to any parties as counsel for the remaining Defendants in this case have long been advised of the basis of Plaintiff's Motion for Summary Judgment and have represented that they do not intend to file opposition to Plaintiff's Motion for Summary Judgment. It is fully expected that the Motion for Summary Judgment will resolve the case in its entirety, without the need for any additional hearings or proceedings.” Id. at 3. The Court has decided to consider the motion for summary judgment on its merits (see Doc. 84) and, indeed, the Defendants that have appeared in this action filed no response in opposition to the motion for summary judgment, and it stands as unopposed.

         On November 21, 2017, the Court entered an order denying the motion for default judgment, again noting that the motion failed to comply with Local Rule 3.01(a) and also calling into question ...


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