Prime Property & Casualty Insurance Company v. Ber Mac Trucking LLC et al

Filing 39

ORDER denying without prejudice 26 Motion for Default Judgment. Plaintiff may renew the request, if appropriate, within TWENTY-ONE (21) DAYS of resolution of this matter against Defendant Agosto. Signed by Magistrate Judge Daniel C. Irick on 1/7/2025. (TNP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
PRIME PROPERTY & CASUALTY
INSURANCE COMPANY,
Plaintiff,
v.

Case No: 6:24-cv-1173-JSS-DCI

BER MAC TRUCKING, LLC,
FLORIDA PROFESSIONAL
TRANSPORT, LLC, AGRIPINO
ROSARIO, and MARTIN AGOSTO,
Defendants.
ORDER

Prime Property & Casualty Insurance Company (Plaintiff) initiated this diversity action
against Defendants Martin Agosto (Agosto); Agripino Rosario (Rosario); Ber Mac Trucking, LLC
(Ber Mac); and Florida Professional Transport, LLC (Florida Professional) (collectively, the
Defendants). Doc. 1. Plaintiff alleges that an automobile accident occurred between Defendants
Agosto and Rosario and that Defendant Agosto has brought a claim against Defendants Ber Mac
and Rosario. Id. at 3. Plaintiff asserts that it issued a commercial automobile policy to Defendant
Ber Mac and Plaintiff is defending Defendants Ber Mac and Rosario in the underlying action. Id.
at 4, 7. Plaintiff alleges that Defendant Rosario was not a scheduled driver under the insurance
policy and “[t]his is an action for declaratory relief based on the failure of the insured to schedule
a driver on the policy insurance who was subsequently in an accident that allegedly resulted in
damages to Agosto.” Id. at 1.
Pending before the Court is Plaintiff’s Motion for Default Judgment against the
Defendants. Doc. 26 (the Motion). The Clerk entered defaults against Defendants (Docs. 15, 23,
25), and Plaintiff now seeks final default judgment pursuant to Federal Rule of Civil Procedure

55(b). Doc. 26. Notably, Plaintiff states, “Because [Plaintiff] seeks an entry of final judgment
against all Defendants, there is no possibility of inconsistent liability between the [D]efendants.”
Id. at 6 n.2.
Subsequent events, however, have rendered that statement no longer accurate. Namely,
the Court has recently granted Defendant Agosto’s Motion to Set Aside Clerk’s Default and
vacated the default. Docs. 35, 38. As such, a defendant is now litigating the matter and “in cases
involving more than one defendant, a judgment. . . should not be entered against a defaulting party
alleged to be jointly liable, until the matter has been adjudicated with regard to all defendants.”
Nationwide Mut. Fire Ins. Co. v. Creation’s Own Corp., 2011 WL 6752561, at *5 (M.D. Fla. Nov.
16, 2011), report and recommendation adopted by 2011 WL 6752557 (M.D. Fla. Dec. 22, 2011)
(citing Frow v. De La Vega, 82 U.S. 552 (1872)). As the court in Nationwide explained:
[I]f the plaintiff prevails against the nondefaulting defendants, he is entitled to
judgment against both the defaulting and nondefaulting defendants, but if the
nondefaulting party prevails against the plaintiff, in most cases, that judgment will
accrue to the benefit of the defaulting defendant, unless that defense is personal to
that defendant.
Id. “The purpose behind not entering a default judgment against a defendant when a co-defendant
has appeared is the prohibition against logically inconsistent judgments.” United States CFTC v.
Montano, 2019 WL 11648519, at *3 (M.D. Fla. July 15, 2019) (citing Frow, 82 U.S. at 554). “This
district has followed Frow and has been sensitive to the risk of inconsistent judgments.”
Nationwide, 2011 WL 6752561 at *6 (collecting cases). The Eleventh Circuit has also stated that
it is “sound policy” that “when defendants are similarly situated, but not jointly liable, judgment
should not be entered against a defaulting defendant if the other defendant prevails on the merits.”
Gulf Coast Fans v. Midwest Elecs. Imp., 740 F.2d 1499, 1512 (11th Cir. 1984) (citation omitted).

-2-

Here, Plaintiff brings two counts for relief against all Defendants claiming no coverage
under the insurance policy and a third count alleging no coverage against Defendants Florida
Professional and Agosto. Doc. 1 at 7-9. As relief, Plaintiff requests that the Court declare that it
does not have a duty to defend or indemnify Defendants Ber Mac, Florida Professional, or Rosario
with respect to Defendant Agosto’s underlying claim arising out of the automobile accident. Doc.
1 at 9.
As such, the Court finds that the rationale of Frow applies, and the Court should withhold
addressing the merits of Plaintiff’s request for default judgment. See Nautilus Ins. Co. v. LB Ent.,
LLC, 2024 WL 5090070, at *2 (M.D. Fla. Dec. 12, 2024) (“[C]ourts under similar circumstances
have withheld addressing the merits of a motion for default judgment in a multi-defendant
insurance declaratory judgment action when at least one defendant is defending against the
claim.”) (collecting cases).
Accordingly, it is ORDERED that:
1. Plaintiff’s Motion (Doc. 26) is DENIED without prejudice; and
2. Plaintiff may renew the request, if appropriate, within TWENTY-ONE (21) DAYS of
resolution of this matter against Defendant Agosto.
Ordered in Orlando, Florida on January 7, 2025.

-3-