Nautilus Insurance v. I.L.S. General Contractors, Inc.

369 F. Supp. 2d 906, 2005 U.S. Dist. LEXIS 13212
CourtDistrict Court, E.D. Michigan
DecidedMay 23, 2005
DocketNo. 04-71176
StatusPublished
Cited by9 cases

This text of 369 F. Supp. 2d 906 (Nautilus Insurance v. I.L.S. General Contractors, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nautilus Insurance v. I.L.S. General Contractors, Inc., 369 F. Supp. 2d 906, 2005 U.S. Dist. LEXIS 13212 (E.D. Mich. 2005).

Opinion

OPINION AND ORDER

ZATKOFF, District Judge.

I. INTRODUCTION

This matter is before the Court on Plaintiffs Motion for. Entry of Default Judgment. Plaintiff Nautilus Insurance Company (hereinafter “Nautilus”) filed the motion against Defendants I.L.S. General Contractors, Inc. (hereinafter “I.L.S.”) and Insurance Loss Specialists General Contractors, Inc. (hereinafter “Insurance Loss Specialists”). Defendants Auto Club Group Insurance Company (hereinafter “Auto Club”), Terrance D. Thomson, and Nancy Thomson responded and opposed the motion. This Court held a hearing on the motion on March 31, 2005. For the reasons set forth below, Nautilus’s motion for default judgment will be DENIED WITHOUT PREJUDICE.

II. BACKGROUND

The Complaint in this matter alleges that Plaintiff Nautilus, an Arizona insurance company, issued a policy of insurance (hereinafter “Policy”) to non-party Doug Minard, d/b/a/ Tri-Star Roofing, with an endorsement naming Defendant I.L.S., a Michigan contractor, as an additional insured. It is undisputed that currently pending in the Wayne County Circuit Court is an action against Defendant I.L.S., Defendant Insurance Loss Special[907]*907ists, and Doug Minard d/b/a/ Tri-Star Roofing, by Defendant Auto Club as sub-rogee of Defendants Terrance Thomson and Nancy Thomson (hereinafter “Wayne County Action”). Nautilus alleges that in the Wayne County Action, Defendant Auto Club claims that Defendant I.L.S. failed to properly repair the ceiling of the Defendant Thomson’s home, causing $571,825.44 worth of damage, including “extensive exposure of friable asbestos containing materials.” Am. Compl. at ¶ 6. Nautilus alleges that Defendant I.L.S. requested indemnification under the policy before Defendant Auto Club initiated the Wayne County Action. Nautilus denied the request, however, and informed Defendant I.L.S. that “it was reserving its right to deny a defense and indemnification pursuant to the provisions of the insurance contract.” Am. Compl. at ¶ 9.

Nautilus filed a Complaint on March 30, 2004, and a First Amended Complaint on July 13, 2004, requesting a declaratory judgment against Defendant I.L.S. and Defendant Insurance Loss Specialists. The remaining Defendants, according to Nautilus, “are included for res judicata purposes.” Am. Compl. at ¶ 11. Nautilus maintains that under the facts alleged in the Wayne County Action, it has no duty to indemnify or defend Defendant I.L.S. under ten different limitations and exclusions in the Policy. Pursuant to those limitations and exclusions, Nautilus requests that the Court:

A. Declare that the insurance policy referred to above, issued by Nautilus Insurance Company, does not provide coverage for the underlying lawsuit;
B. Declare that the above referenced exclusions in the policy preclude indemnity for the underlying lawsuit;
C. Declare that Nautilus Insurance Company had no duty to defend;;
D. Find that Plaintiff, Nautilus Insurance Company, is entitled to a declaratory judgment; and
E. Order a speedy hearing pursuant to FRCP 57, and advance this case on the calendar.

Am. Compl. at ¶ 14.

On February 11, 2005, Nautilus filed a motion for default judgment against Defendant I.L.S. and Defendant Insurance Loss Specialists, neither of which have answered the Complaint or First Amended Complaint. With its motion for default judgment, Nautilus requests that the Court “declare that the insurance policy referenced in the Complaint ... does not provide coverage for the underlying lawsuit referenced in the Complaint, and precludes indemnity and the duty to defend.” Motion for Default Judgment, at ¶ 10. The remaining Defendants, however, object to the request. The remaining Defendants maintain that “a significant part of the damages claimed in the underlying lawsuit against Defendant I.L.S. occurred through negligence of Defendant I.L.S. in failing to properly supervise and control [the Defendant Thomsons’] roofing project and to complete it without damages to the Thomson property in a timely manner.” Defendant Auto Club and Defendants Nancy and Terrance Thomson’s Response, at 2. Thus, the remaining Defendants argue that Nautilus is liable to indemnify Defendant I.L.S. These Defendants also argue that allowing Nautilus to obtain a default judgment declaring that the Policy does not cover the underlying lawsuit would be “inequitable” and would result in “piecemeal” litigation because other parties, such as Douglas Minard d/b/a Tri Star Roofing, are named in the Wayne County Action and are insured under the Policy, but are not named in the present case. Thus, any declaratory ruling with respect to Defendant I.L.S. and Defendant Insur-[908]*908anee Loss Specialists would not bind the unnamed parties.

Since Defendant Auto Club and Defendants Nancy and Terrance Thomson’s only objection to Nautilus’s motion is that granting a default will result in piecemeal litigation, adding the remaining defendants from the Wayne County Action would seem to satisfy their concerns. At oral argument Nautilus’s counsel agreed that the other defendants in the Wayne County Action should be added to this litigation. Counsel agreed to file an amended complaint within 30 days, and the Court adjourned the Scheduling Conference in this matter for 60 days. More than 30 days have elapsed since the oral argument, however, and an amended complaint has not yet been filed. Nevertheless, after reviewing the parties’ submissions, the Court concludes that even if an amended complaint is filed, Nautilus’s motion should not be granted.

III. DISCUSSION

The question presented is whether this Court should grant Nautilus’s motion for default judgment and declare that the Policy does not provide coverage for the Wayne County Action, despite the possibility that at the conclusion of these proceedings Defendant Auto Club and Defendants Nancy and Terrance Thomson will have shown that the Policy does cover the Wayne County Action. Although neither party has directly addressed this issue, the Court finds that the potential for inconsistent judgments requires denying Nautilus’s motion for default judgment.

The Supreme Court addressed default judgments in the context of multi-defen-dant lawsuits in Frow v. De La Vega, 15 Wall. 552, 82 U.S. 552, 21 L.Ed. 60 (1872). In.Frow, the complaint alleged a conspiracy by Frow and twelve others to defraud the plaintiff of title to a tract of land. Frow did not appear and the court granted default judgment against him. The other defendants, however, successfully defended the lawsuit. Frow then petitioned the court to vacate the default judgment entered against him on the basis that it was inconsistent with the judgment on the merits against the other defendants. The trial court declined to vacate the judgment.

On appeal the Supreme Court described the inconsistent result as “unseemly and absurd, as well as unauthorized by law.” Frow, 82 U.S. at 554, 82 U.S. 552. The Court stated that:

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369 F. Supp. 2d 906, 2005 U.S. Dist. LEXIS 13212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nautilus-insurance-v-ils-general-contractors-inc-mied-2005.