CRUM & FORSTER INDEMNITY CO v. BOND

Filing 13

ORDER GRANTING in part and DENYING in part 9 MOTION for Default Judgment as to Defendant Earlondez Bond. It is GRANTED as to liability on the negligence claim and compensatory damages in the amount of $126,962.67, but DENIED as to attorney's fees and the requested 12% postjudgment interest. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 1/7/2021. (kat)

Case 5:20-cv-00101-MTT Document 13 Filed 01/07/21 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
CRUM & FORSTER INDEMNITY CO.,

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Plaintiff,
v.
EARLONDEZ BOND,
Defendant.
__________________

CIVIL ACTION NO. 5:20-cv-101 (MTT)

ORDER
Plaintiff Crum & Forster Indemnity Company moves for default judgment against
Defendant Earlondez Bond. For the following reasons, that motion (Doc. 9) is
GRANTED in part and DENIED in part.
I. BACKGROUND
The Plaintiff alleges the Defendant executed an agreement to haul petroleum for
Danfair Transport, LLC. Doc. 5 ¶¶ 7-8, 10. The agreement provided that the Defendant
shall defend, indemnify and hold harmless Danfair or its agent or employees
against all liabilities, fines, penalties and expense if the Owner/Operator
resulting in release or discharge of hazardous material or product. [sic]
Id. 5 ¶ 11; Doc. 5-1 at 2. The Defendant also agreed to meet minimum insurance
requirements and to reimburse Danfair for any lost, destroyed, or spilled cargo. Doc. 5
¶¶ 12-14; 5-1 at 3-4. The Plaintiff alleges that the Defendant never maintained the
required insurance coverage. Doc. 5 ¶ 17.
On February 7, 2019, the Defendant was involved in a wreck which resulted in
the release of hazardous substances. Id. ¶ 18. As a result, Danfair had to pay for

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environmental cleanup and made a claim under its insurance policy. The Plaintiff paid
Danfair $126,962.67 for that claim. Id. ¶¶ 19-20; Doc. 11 at 4-12. The Plaintiff, as
Danfair’s subrogee, sought to make a claim against the Defendant’s insurer, but
discovered the Defendant did not maintain the coverage required by his agreement with
Danfair. Id. ¶¶ 21-23. The Plaintiff sued the Defendant for breach of contract and
negligence. Id. ¶¶ 24-34.
The Defendant did not file an answer, and the Plaintiff moved for default
judgment. While that motion was pending, the Court received an email from a paralegal
whom the Plaintiff’s counsel had instructed to inquire when the motion would be ruled
on. In response to the paralegal’s email, the Court informed counsel that there were
several issues with the motion, specifically with the contract claim and the claim for
attorney’s fees. Doc. 10 at 1-2.
In response to the letter, the Plaintiff filed a supplemental brief and affidavit. It
also abandoned the claims for attorney’s fees.
II. DISCUSSION
Pursuant to Fed. R. Civ. P. 55(a), the Clerk of Court must enter a party’s default
if that party’s failure to plead or otherwise defend an action against it “is shown by
affidavit or otherwise.” After default has been entered, the Clerk may enter a default
judgment on the plaintiff’s request if the claim “is for a sum certain or a sum that can be
made certain by computation,” as long as the party is not a minor or incompetent and
has not made an appearance. Fed. R. Civ. P. 55(b)(1). In all other cases, the plaintiff
must apply to the Court for a default judgment. Fed. R. Civ. P. 55(b)(2). The Court
must hold an evidentiary hearing to determine damages unless all the essential

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evidence is already on the record. See S.E.C. v. Smyth, 420 F.3d 1225, 1232 n.13
(11th Cir. 2005) (“We have held that no such hearing is required where all essential
evidence is already of record.”); see also Fed. R. Civ. P. 55(b)(2) (“The court may
conduct hearings . . . .” (emphasis added)).
After the Clerk’s entry of default, a defendant is deemed to admit all well-pleaded
factual allegations in the complaint. Nishimatsu Const. Co., Ltd. v. Houston Nat’l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975). 1 An entry of default against the defendant does
not establish that the plaintiff is entitled to a default judgment, however. The defendant
is not deemed to admit (1) facts that are not well-pleaded or (2) conclusions of law. Id.
“The Court must consider whether the unchallenged facts constitute a legitimate cause
of action, since the party in default does not admit a mere conclusion of law. In
considering any default judgment, the Court must consider (1) jurisdiction, (2) liability,
and (3) damages.” Johnson v. Rammage, 2007 WL 2276847, at *1 (M.D. Ga.) (citing
Pitts v. Seneca Sports, Inc., 321 F. Supp. 2d 1353, 1356 (S.D. Ga. 2004)). The
defendant is not deemed to admit the plaintiff’s allegations relating to the amount of
damages. Patray v. Nw. Publ’g, Inc., 931 F. Supp. 865, 869 (S.D. Ga. 1996); see also
Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003) (“A court has an
obligation to assure that there is a legitimate basis for any damage award it enters . . .”).
A. Jurisdiction
The factual allegations in the complaint and the attached documents establish
that the Plaintiff is a corporation with citizenship in New Jersey, the Defendant is an
individual with citizenship in Georgia, and the amount in controversy is more than

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The Eleventh Circuit has adopted as binding precedent the decisions of the former Fifth Circuit rendered
prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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$75,000. Doc. 5. ¶¶ 2, 4. Accordingly, the Court has subject-matter jurisdiction
pursuant to 28 U.S.C. § 1332(a). Further, the Court has personal jurisdiction over the
Defendant, who lives in Macon, Georgia and was served in Macon, Georgia. Id. ¶ 4;
Doc. 7 at 1.
B. Liability
The Plaintiff has not demonstrated it is entitled to judgment on the contract claim.
It is still not clear exactly what the nature of that claim is. Although the amended
complaint mentions an indemnification clause, it does not assert a claim for
indemnification. Doc. 5 ¶ 11. Perhaps that is because the indemnification clause
contains obvious drafting errors. 2 Rather, the contract claim is based on the
Defendant’s failure to maintain insurance required by the contract. However, the
Plaintiff fails to show that the contractually required insurance would have covered the
cleanup fees and would have allowed Danfair to recover. Accordingly, that claim fails.
The Court’s letter also noted potential issues with the proof that the Plaintiff is
Danfair’s subrogee. Doc. 10 at 1. However, the complaint’s allegation that the Plaintiff
is a subrogee (Doc. 5 ¶ 21) and its insurance policy with Danfair (Doc. 12-1), attached
to the supplemental brief, establish that it is a subrogee.
The Plaintiff also asserts a negligence claim. Docs. 5 ¶¶ 28-34. Specifically, it
alleges that the Defendant operated the vehicle unsafely, causing the single-vehicle
accident. Id. ¶¶ 17-19, 29-33. The Court deems those allegations admitted, which
establishes the Defendant was negligent. Further, that negligence resulted in the

2 The clause required the Defendant to indemnify Danfair “if the Owner/Operator resulting in release or
discharge of hazardous material or product.” Doc. 5-1 at 2. That provides no basis for holding the
Defendant liable. Confusingly, the Plaintiff continued to argue an indemnification theory in its brief (Doc.
9-1 at 1) and an affidavit (Docs. 9-3 ¶ 4).

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discharge of hazardous chemicals, and the Plaintiff incurred damages in cleanup fees.
The Court finds the Plaintiff has established a negligence claim.
C. Damages
The Plaintiff has also proved it suffered damages in an amount of $126,962.67.
Doc. 11 ¶ 9, at 4-12. The company which performed environmental cleanup, First Call
Environmental, billed $136,962.67 to Danfair, and the Plaintiff compensated Danfair in
an amount of $126,962.67. Accordingly, the Plaintiff has established damages in an
amount of $126,962.67.
The Plaintiff’s proposed judgment also includes postjudgment interest at a rate of
12%. Doc. 9-4. The Plaintiff makes no attempt to justify that amount, and the Court can
find no basis for it.
III. CONCLUSION
For the reasons noted above, the Plaintiff’s motion for default judgment is
GRANTED in part and DENIED in part. It is GRANTED as to liability on the
negligence claim and compensatory damages in the amount of $126,962.67, but
DENIED as to attorney’s fees and the requested 12% postjudgment interest.
SO ORDERED, this 7th day of January, 2021.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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