Southern Guaranty Insurance Company v. Robinson

Filing 12

ORDER granting 11 Motion for Default Judgment. Signed by Judge Kristi K. DuBose on 2/1/12. (copy mailed certified to William Robinson 70111570000211906395) (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SOUTHERN GUARANTY
INSURANCE COMPANY,
Plaintiff,
vs.
WILLIAM L. ROBINSON, JR.,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 11-0506-KD-B

ORDER
This action is before the Court on plaintiff Southern Guaranty Insurance Company=s motion
for default judgment (doc. 11). Upon consideration and for the reasons set forth herein, the motion
is GRANTED.1
I. Procedural history
On August 29, 2011, plaintiff Southern Guaranty Insurance Company filed its complaint for
declaratory judgment relating to a homeowners’ insurance policy issued to defendant William L.
Robinson, Jr. (doc. 1). Southern Guaranty seeks a determination as to whether it has met all its
duties under the policy with respect to Robinson’s property damage claim and that Robinson has no
right to invoke the appraisal provisions in the policy. Robinson was served with the summons and
complaint by certified mail on October 12, 2011 (doc. 3). Robinson failed to answer, plead, or
otherwise defend this action and the Clerk entered default on December 1, 2011 (doc. 10).
Subsequent thereto, Southern Guaranty filed its motion for default judgment (doc. 11).
II. Jurisdiction
Southern Guaranty alleges that this Court has jurisdiction based on diversity of citizenship,
28 U.S.C. § 1332, and the Federal Declaratory Judgment Act, 28 U.S.C. §2201, et seq. In the
1

Rule 55(b)(2) of the Federal Rules of Civil Procedure provides that the Court may conduct
a hearing to enter a judgment if the Court needs to “conduct an accounting”, “determine the amount
of damages”, “establish the truth of any allegation by evidence” or “investigate any other matter.”
Upon review of the pleadings, the Court finds that a hearing is not necessary.

complaint, Southern Guaranty alleges that it is a citizen of Wisconsin, that Robinson is a citizen of
Alabama, and that the amount in controversy exceeds $75,000.00. The complaint was signed by
counsel for Southern Guaranty and thus subject to Rule 11(b)(3) of the Federal Rules of Civil
Procedure which provides that “[b]y presenting to the court a pleading . . . an attorney . . . certifies
that to the best of the person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances. . . the factual contentions have evidentiary support”.
Therefore, the Court will accept these jurisdictional allegations as true.
The Court must also determine whether it has personal jurisdiction over Robinson. “The
concept of personal jurisdiction comprises two distinct components: amenability to jurisdiction and
service of process. Amenability to jurisdiction means that a defendant is within the substantive
reach of a forum's jurisdiction under applicable law. Service of process is simply the physical means
by which that jurisdiction is asserted.” Prewitt Enterprises, Inc. v. Organization of Petroleum
Exporting Countries, 353 F.3d 916, 925 n. 15 (11th Cir. 2003); see, e.g., Hemispherx Biopharma,
Inc. v. Johannesburg Consol. Investments, 553 F.3d 1351, 1360 (11th Cir. 2008) (“Service of
process is a jurisdictional requirement: a court lacks jurisdiction over the person of a defendant
when that defendant has not been served.”) (citation omitted); In re Worldwide Web Systems, Inc.,
328 F.3d 1291, 1299 (11th Cir. 2003) (“Generally, where service of process is insufficient, the court
has no power to render judgment and the judgment is void.”). “It is axiomatic that absent good
service, the Court has no in personam or personal jurisdiction over a defendant.” Nationwide Mut.
Fire Ins. Co. v. Creation's Own Corp., S.C., 2011 WL 6752561, 2 (M.D. Fla. November 16, 2011)
(citations omitted)
Southern Guaranty alleges that Robinson is a citizen and resident of Mobile County,
Alabama who contracted with Southern Guaranty to insure his home in Mobile County, Alabama
and that Southern Guaranty does business in the State of Alabama. Thus, Robinson is amenable to
jurisdiction. Thus, this Court must be sure of valid service of process before entry of default
judgment against Robinson. In that regard, Robinson was served with the summons and complaint
by certified mail on October 11, 2011 (doc. 3). The certified mail return receipt was signed by

2

“Anthoni L. Robinson”. 2 The complaint identifies Anthoni Robinson as William Robinson’s wife
(doc. 1, p. 4, ¶ 13). The return receipt indicates that the summons and complaint was mailed to the
same address in Mobile County, Alabama as the address on the homeowners insurance policy.
Rule 4(e) of the Federal Rules provides for serving an individual within the jurisdiction of
the district courts of the United States but does not provide for service by certified mail. However,
Rule 4(e)(1) allows for service “following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is located. . . ”, i.e, Mobile County,
Alabama. Fed. R. Civ. P. 4(e)(1). In that regard, the Alabama Rules of Civil Procedure provide for
service by certified mail, return receipt requested, sent by counsel and effective upon the date of
delivery to the “named addressee or the addressee’s agent as evidence by signature on the return
receipt. Ala. R. Civ. P. Rule 4(i)(2)(B)(ii) and (C).
III. Findings of Fact
Upon consideration of the pleadings, the Court makes the following findings of fact:
On or about February 22, 2004, Southern Guaranty issued a homeowners insurance policy to
Robinson wherein Southern Guaranty agreed to pay certain losses resulting from property damage
covered by the policy.3
On September 16, 2004, Robinson’s home was damaged by Hurricane Ivan and he
submitted a claim under his homeowners policy. Robinson also hired a contractor who began
making repairs before Southern Guaranty’s adjuster had inspected and adjusted the damage. At the
inspection, Robinson’s contractor agreed to the adjusted value of loss, the scope of work, and that
the scope of work was sufficient to address the damage. By check dated October 8, 2004, Southern
Guaranty paid Robinson the entire amount of the adjusted loss, minus the deductible, in exchange
for a sworn proof of loss for that amount. Robinson deposited the check, used some portion to pay
the contractor, and had no further communication with Southern Guaranty until May 20, 2010.

2

Following Anthoni Robinson’s signature, there are letters which appear to be “PoA” .
These letters may indicate that she signed under a Power of Attorney (doc. 3, p. 2)
3

A copy of the policy is attached to the complaint as Exhibit A.
3

Almost six years later, on May 20, 2010, counsel for Robinson sent a letter to Southern
Guaranty demanding an appraisal for the damages based on his complaint that an insufficient value
had been assigned to the loss. In the letter, Robinson invoked the appraisal provision of the policy
which states as follows:
SECTION I - CONDITIONS
---6. Appraisal. If you and we fail to agree on the amount of loss, either may demand
an appraisal of the loss. In this event, each party will choose a competent appraiser
within 20 days after receiving a written request from the other. The two appraisers
will choose an umpire. If they cannot agree upon an umpire within 15 days, you or
we may request that the choice be made by a judge of a court of record in the state
where the “residence premises” is located. The appraisers will separately set the
amount of loss. If the appraisers submit a written report of an agreement to us, the
amount agreed upon will be the amount of loss. If they fail to agree, they will submit
their differences to the umpire. A decision agreed to by any two will set the amount
of loss.
Each party will:
a) Pay its own appraiser; and
b) Bear the other expenses of the appraisal and umpire equally.
(doc. 1-1, p. 13).
Southern Guaranty took examinations under oath of Robinson and his wife Anthoni
Robinson. Southern Guaranty alleges that the Robinsons testified that the home repairs were
insufficient because Southern Guaranty failed to assign sufficient value to the loss. Southern
Guaranty also obtained information regarding the Robinson’s agreement with the contractor.
Southern Guaranty identified its appraiser. However, as of the date of filing the complaint,
and to the present, Robinson has not identified an appraiser and the parties have not agreed to an
umpire.
IV. Standard of review
The Federal Rules of Civil Procedure establish a two-part process for obtaining a default
judgment. Fed. R. Civ. P. 55. If “a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend” the clerk of court “must enter the party’s default.” Fed. R.
4

Civ. P. 55(a). After default has been entered, if the “claim is for a sum certain or a sum that can be
made certain by computation” the clerk must enter default. Fed.R.Civ.P. 55(b)(1). In all other
circumstances, such as here, “the party must apply to the court for a default judgment.” Fed. R. Civ.
P. 55(b)(2). Also, a “default judgment must not differ in kind from, or exceed in amount, what is
demanded in the pleadings.” Fed. R. Civ. P. 54(c).
The Court of Appeals for the Eleventh Circuit has held that although “a default is not treated
as an absolute confession by the defendant of his liability and of the plaintiff's right to recover, a
defaulted defendant is deemed to admit the plaintiff's well-pleaded allegations of fact. The
defendant, however, is not held to admit facts that are not well-pleaded or to admit conclusions of
law.” Tyco Fire & Sec., LLC v. Alcocer, 218 Fed. Appx. 860, 863 (11th Cir. 2007) (per curiam)
(citations and internal quotations omitted). Moreover, “before entering a default judgment for
damages, the district court must ensure that the well-pleaded allegations of the complaint ... actually
state a cause of action and that there is a substantive, sufficient basis in the pleadings for the
particular relief sought.” Id. (emphasis omitted). Therefore, Southern Guaranty must establish a
Aprima facie liability case” against the defendant. Pitts ex rel. Pitts v. Seneca Sports, Inc., 321 F.
Supp. 2d 1353, 1357 (S.D. Ga. 2004) (citations omitted).
Also, when assessing default judgment damages, the Court has “an obligation to assure that
there is a legitimate basis for any damage award it enters.” Anheuser Busch, Inc. v. Philpot, 317
F.3d 1264, 1266 (11th Cir. 2007). Therefore, when ruling on a motion for default judgment, the
Court must determine whether there is a sufficient factual basis in the complaint upon which a
judgment may be entered. See Nishimatsu Costr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206
(5th Cir. 1975)
V. Analysis
In addition to service of the summons and complaint, the record shows that Robinson was
5

given notice of the default proceedings against him. Robinson was served with a copy of the
motion for entry of default, a copy of the motion for default judgment, and the Clerk’s entry of
default (doc. 9, p. 2; doc. 11, p. 3; doc. 11-1). Also, the Clerk mailed a copy of the entry of default
to Robinson (doc. 10). Southern Guaranty mailed a courtesy copy of the complaint to Robinson’s
attorney, Earnest Eugene Warhurst, Jr. (doc. 9-2, p. 2).4 Warhurst was also served with a copy of
the motion for entry of default, a copy of the motion for default judgment and a copy of the Clerk’s
entry of default (doc. 9, p. 2; doc. 11, p. 3; doc. 11-1). He did not appear on behalf of Robinson.
Therefore, Robinson has had notice of the proceedings and has not plead, answered or otherwise
responded to the complaint or motions.
Upon consideration of the pleadings, the Court is satisfied that the well-pleaded allegations
of the complaint state a basis for declaratory relief as to Robinson and that there is a substantive,
sufficient factual basis in the pleadings for the declaratory relief sought by Southern Guaranty.
Southern Guaranty attached a copy of the homeowners policy which binds the parties to the
conditions for obtaining an appraisal when a claimant such as Robinson, disputes the adjusted loss.
(doc. 1-1, ¶ 13). Because Southern Guaranty’s allegations are deemed admitted by default by
Robinson, the Court declares as follows:
That Southern Guaranty has met all of its duties under the subject policy with respect
to the Robinson property damage claims arising from Hurricane Ivan; and
that under these circumstances, Robinson has no right to invoke the Appraisal
provisions of the policy.5

4

Counsel for Southern Guaranty identified Warhurst as Robinson’s attorney in Counsel’s
affidavit in support of the motion for entry of default.
5

In the motion for default judgment, Southern Guaranty asks that the Court include in the
judgment a finding that Robinson “has been paid in full for all property damage claims arising from
Hurricane Ivan and that [Robinson] has no claim for other or further relief under the homeowner’s
insurance policy issued to him by” Southern Guaranty (doc. 11, p. 2). Southern Guaranty did not
include this request in its complaint for declaratory relief. Generally, a “default judgment must not
(Continued)
6

A separate Judgment consistent with the terms of this Order shall issue contemporaneously
herewith.
The Clerk is directed to mail a copy of this Order, by certified mail, to Defendant William L.
Robinson, Jr. at his address of record.
DONE and ORDERED this 1st day of February, 2012.

s / Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed. R. Civ. P. 54(c).
However, by finding that Southern Guaranty has met its duty to Robinson as to this claim, the Court
has determined that Robinson has been paid in full, since the duty to pay for damages is implicit in
a contract for homeowners insurance. But, Robinson may have other or further claims for relief
arising from the homeowners’ policy and the Court will make no declaration as to such.

7