American General Life Insurance Company v. Thelus et al
Filing
19
ORDER granting 18 the Plaintiff, American General Life Insurance Company's Motion for the Entry of a Final Judgment against Defendants. The Clerk shall enter judgment accordingly, terminate all previously scheduled deadlines and pending motions, and close the file.. Signed by Judge Sheri Polster Chappell on 7/18/2013. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AMERICAN GENERAL LIFE
INSURANCE COMPANY,
Plaintiff,
vs.
Case No: 2:13-cv-224-Ftm-99DNF
LUCKNER THELUS, individually;
LUCKNER THELUS, as parent and
natural guardian of A.T., a minor; and,
LUCKNER THELUS, as parent and
natural guardian of S.T., a minor,
Defendants.
___________________________________/
ORDER1
This matter comes before the Court on the Plaintiff, American General Life
Insurance Company’s Motion for the Entry of a Final Judgment against Defendant,
Luckner Thelus (“Defendant”), in his individual capacity and in his capacity as parent
and natural guardian of A.T., a minor, and S.T., a minor (Doc. #18) filed on July 02,
2013. No response or opposition has been filed by the Defendant and the time to do so
has expired. The Motion is now ripe for review.
A district court may enter a default judgment against a properly served defendant
who fails to defend or otherwise appear pursuant to Federal Rule of Civil Procedure
55(b)(2). ABS-SOS Plus Partners Ltd. v. Vein Associates of America, Inc., WL 5191701
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*1-2 (M.D. December 10, 2008) (citing DirecTV, Inc. v. Griffin, 290 F. Supp.2d 1340,
1343 (M.D. Fla.2003). In this instance, the Defendant was properly served on March
28, 2013. (Doc. #9-11). The Plaintiff moved for Entry of Clerk’s default on May 13, 2013.
On June 13, 2013, the Magistrate Judge issued an Order (Doc #16) granting Plaintiff’s
Motion for Entry of Clerk’s Default against Defendant, for his failure to respond to
Plaintiff’s Complaint after service. A Clerk’s Entry of Default (Doc. #17) was issued on
June 14, 2013, against Defendant. To date the Defendant has failed to answer, respond
or otherwise make an appearance in this case. Having determined that the Defendant
has failed to answer or otherwise defend against the Complaint, the Court must now
look to see if the allegations in the Complaint provide a sufficient legal basis for the
entry of a default judgment.
A court may enter a default judgment only if the factual allegations of the
complaint, which are assumed to be true, provide a sufficient legal basis for such entry.
Nike, Inc. v. Austin, WL 3535500 *1 -2 (M.D. Fla. October 28, 2009) (citing Nishimatsu
Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.1975) (“The defendant
is not held to admit facts that are not well-pleaded or to admit conclusions of law.”).
Therefore, in considering a motion for default judgment, a court must “examine the
sufficiency of the allegations in the complaint to determine whether the plaintiff is
entitled to” a default judgment. Nike, Inc., WL 3535500 at *1 -2 (citing Fid. & Deposit
Co. v. Williams, 699 F. Supp. 897, 899 (N.D.Ga.1988)).
On March 22, 2013, Plaintiff filed a Complaint and Demand for Jury Trial (Doc.
#1) against Defendants seeking to void a life insurance policy. Plaintiff alleges that the
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application for insurance contained misrepresentation(s), omission(s), concealment(s)
of fact and/or incorrect statement(s).” (Doc. #18 at 2).
The undisputed facts show that Plaintiff issued a life insurance policy on the life
of Denise Celestin on June 7, 2011. The insurance policy at issue named Thelus as
90% beneficiary along with A.T. as a 5% beneficiary and S.T. as a 5% beneficiary. The
policy issued was contingent upon satisfaction of several conditions including an
accurate and truthful completion of an amendment to the initial application. The Policy
amendment was signed on June 22, 2011, which affirmed that the statements made in
the application were accurate and complete. On July 12, 2012, Ms. Celestin died and a
claim was submitted to Plaintiff. This claim underwent a routine contestable claim
investigation at which time Plaintiff discovered that Ms. Celestin had made
misrepresentation(s), omission(s), concealment(s) of fact and/or incorrect statement(s)
in the application. The facts discovered included that Ms. Celestin did not disclose a
history of cancer that pre-dated the application.
Plaintiff is seeking declaratory relief pursuant to 28 U.S.C. § 2201. Plaintiff states
that the life insurance policy is void and/or unenforceable because the foregoing
misrepresentation(s), omission(s), concealment(s) of fact and/or incorrect statement(s)
were fraudulent or material to the acceptance of risk or hazard assumed by Plaintiff.
Plaintiff also alleges that had the true facts been known, they would not have issued the
same policy to Ms. Celestin. By failing to answer the Complaint, Defendant has
admitted that the application for insurance contained misrepresentation(s), omission(s),
concealment(s) of fact and/or incorrect statement(s). Eagle Hosp. Physicians, LLC v.
SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009). Therefore, Plaintiff has
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established sufficient legal basis for the Court to enter a Default Judgment against
Defendant.
CONCLUSION
Based upon the record in this case, the Defendants have failed to answer or
otherwise defend against Plaintiff, American General Life Insurance Company’s
Complaint. Therefore, this Court shall enter a default judgment against the Defendants.
Accordingly, it is now
ORDERED:
The Plaintiff, American General Life Insurance Company’s Motion for the Entry of
a Final Judgment against Defendants (Doc. #18) is GRANTED. The Clerk shall enter
judgment accordingly, terminate all previously scheduled deadlines and pending
motions, and close the file.
DONE and ORDERED in Fort Myers, Florida, this 18th day of July, 2013.
Copies: All Parties of Record
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