Chubb Custom Insurance Company v. Torian

Filing 16

ORDER that the Plaintiff's 14 Motion for Default Judgment is granted. The Clerk is instructed to enter judgment in favor of Plaintiff and against Defendant in the total amount of $429, 223.06. The Clerk is directed to terminate all deadlines and motions, and close this case. Signed by Judge J. Randal Hall on 09/30/2014. (jah)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

CHUBB CUSTOM INSURANCE COMPANY,

*

as Subrogee of Wilkinson Real

*

Estate Advisers,

*

Inc.,

*

Plaintiff,

*

*

CV

113-071

*

v.

*
*

GREGORY EARL TORIAN,

*
*

Defendant.

0

D

R

E

R

Presently pending before the Court is Plaintiff's Amended
Motion for Default Judgment.
forth below,

14.)

For the reasons set

Plaintiff's motion is GRANTED.

I.

This

(Doc.

case

arises

from

BACKGROUND

a

Defendant's apartment on August

kitchen

8,

fire

2008.

that

(Compl.

ignited

n

9,

in

10.)

Defendant was a tenant of an apartment complex called Merrick

Place Apartments

("the Property"),

and occupied Apartment

located at 3188 Skinner Mill Road, Augusta, Georgia 30909.

H 6.)

10B
(Id.

On August 8, 2008, Defendant left food on his stovetop to

cook while

he

watched

Democratic

National

Barack Obama's

Convention.

(Id.

acceptance

1M

10,

speech

11.)

at

At

the

some

point, Defendant returned to the kitchen to find flames "licking

up

onto

the

kitchen

cabinets."

(Id.

H

13.)

With smoke

accumulating in his apartment and unable to immediately put out

the fire, Defendant fled his apartment and called 911.
14,

15.)

(Id. M

The fire proceeded to spread throughout Unit 10B and

into other units of the complex, ultimately causing substantial

damage to the Property.
The

Property

(Id. H 16.)

was

owned

and

operated

Estate Advisers, Inc. ("the Owner"),

by

Wilkinson

a Georgia corporation, and

insured by Plaintiff under a policy issued to the Owner.
MI 7, 8.)

the

amount

policy.

(Id.

After the fire, the Owner made a claim on the policy

for the damages sustained,
in

Real

of

and Plaintiff indemnified the Owner

$479,223.06

(Id. H 18, 19.)

according

to

the

terms

of

the

This amount includes both the cost of

repair to the building and the loss of rents suffered while the
building could not be occupied.
Under

obligated:

the

terms

of

(Id. H 19.)

Defendant's

Lease

Agreement,

he

was

(1) to reimburse the Owner for damage to the Property

beyond normal wear and tear resulting from his occupancy of

Apartment 10B (Id^ 1 28, Ex. A ^ 23.); (2) to maintain liability
insurance

for

damages

suffered

as

a

result

of

Defendant's

negligence (Id^ H 28, Ex. A H 15); and (3) to indemnify the
Owner for any loss incurred as a result of any act or omission

on the part of Defendant (Id^ 1 28, Ex. A 1 19) . Defendant has
failed to do any of these.

(Id^ 1 29.)

On

May

8,

Defendant was

(Doc. 1.)

2013,

Plaintiff

negligent and

filed

suit

in breach of

the

alleging

that

Lease Agreement.

Defendant was served on May 30, 2013.

(See Doc. 9.)

Defendant failed to plead or otherwise respond to the Complaint.

(Doc. 15.)

Subsequently, Plaintiff filed its Amended Motion for

Default Judgment on June 17,

2014,

asserting that,

Federal Rule of Civil Procedure 55(b),

pursuant to

the Court should enter a

default judgment against Defendant on its negligence and breach
of contract claims.

(Doc.

14.)

II.

DISCUSSION

"[Defendant's default does not in itself warrant the court

in entering a default judgment.
basis

in the pleadings

There must be a sufficient

for a judgment entered

....

The

defendant is not held to admit facts that are not well-pleaded
or

to

admit

conclusions

of

law."

Nishimatsu

Constr.

Co.

Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).x

v.

A

defendant, by his default, is only deemed to have admitted the

"plaintiff's well-pleaded allegations of fact."
distinct

judgment:

matters

(1)

Pitts ex rel.

[are]

essential

jurisdiction;
Pitts v.

(2)

in

considering

liability;

Seneca Sports,

Id.

Inc.,

and

"[T]hree

any

(3)

321 F.

default

damages."
Supp.

2d

1353, 1356 (S.D. Ga. 2004).

i

See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.

1981) (holding Fifth Circuit decisions made on or before September 30, 1981,
are binding precedent in the Eleventh Circuit).

A.

Jurisdiction

The parties

in this case are diverse

controversy exceeds $75,000.
jurisdiction
Moreover,

over

this

this

Court

the amount

in

Thus, the Court has subject matter

matter

has

and

pursuant

personal

to

28

U.S.C.

§

jurisdiction over

1332.

Defendant

because he is a resident of Georgia.
B. Liability

Based on

Plaintiff *s allegations

and the evidence

in the

record, the Court is satisfied that the well-pleaded allegations
of the Complaint state a cause of action for breach of contract

against Defendant and that there is a substantive,

sufficient

basis in the pleadings for the relief Plaintiff seeks.2
evidence

submitted

(Compl.,

Ex.

A)

by

Plaintiff

includes

and the Declaration

the

Lease

The

Agreement

of Laura Prickett,

the

Regional Recovery Claims Examiner for Plaintiff (Doc. 14, Ex. 1
("Prickett

Decl.")),

which

includes

the

payment

records

associated with this claim.

Under Georgia law,

the elements for a breach of contract

claim are: "(1) breach and the (2)

resultant damages

(3)

to the

party who has the right to complain about the contract being
broken."

501,

502

Norton v. Budget Rent A Car Sys. , Inc.,

(2010).

breached the terms
2

Here,
of

the

record

reveals

the Lease Agreement.

307 Ga. App.

that

Defendant

Specifically,

the

Plaintiff's Complaint sets forth two causes of action - negligence and

breach of contract.
Because the Court is satisfied that Plaintiff has
established a claim for breach of contract, it need not address Plaintiff's
negligence claim.
4

Lease Agreement

required Defendant:

(1)

to reimburse

the Owner

for damage to the property beyond normal wear and tear (Compl.,

Ex. A 1 23) ; (2) to maintain liability insurance (id. H 15) ; and
(3)

to indemnify the Owner for any losses incurred as a result

of Defendant's conduct
Defendant

the

has

Owner

tear.

admitted

for

(Id.

(id.
that

damage

K 29.)

to

H 19).
he

the

By virtue of his default,

failed

Property

Additionally,

liability insurance and,

to

reimburse

beyond

failed to

Owner for losses resulting from the fire.
Moreover,
the

shoes"

assigned

v.

of

to

MacDonald,
State

as

Farm

(2000)).

the

it.

Inc.,

subrogee

315 Ga.
Mut.

pleaded

allegations

Plaintiff

can

pursue

any

cause

Co.

v.

App.

Auto.

Accordingly,

Owner,

&

331,

Ins.

Sur.
336

(2012)

Co.,

241

the

Complaint

maintain

"stands
of

in

action

Woodcraft

by

(quoting Landrum

Ga.

the Court finds that,

in

and

(Id. HI 15, 19.)

the

Cas.

or

indemnify the

of

Ga.

wear

not

and

Owner

See

normal

Defendant did

consequently,

Plaintiff

App.

787,

788

based on the well-

and

record

evidence,

Defendant is liable for damages resulting from his breach of the
Lease Agreement.
C.

Damages

Notwithstanding
Defendant,

it

the

remains

propriety of
incumbent

on

default

judgment against

Plaintiff

to

prove

its

damages.

"While well-pleaded facts in the complaint are deemed

admitted,

[a plaintiff's]

allegations relating to the amount of

damages are not admitted by virtue of default; rather, the court
5

must

determine

Whitney Nat'l
4702916,

both

Bank

at *3

the

v.

amount

Flying

(S.D. Ala.

judgment context,

"[a]

and

character

Tuna,

Oct.

LLC,

No.

4,

2011) .

of

damages."

11-0249,

2011 WL

Even in the default

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.

2003) ; see also Adolph Coors Co. v. Movement Against Racism and
the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985)

(explaining that

damages may be awarded on default judgment only if the record

adequately reflects the basis for award).

However, a judicial

determination of damages is unnecessary where the claim is for a
sum

certain

certain.

or

See

for

a

sum

which

can

v.

Mazda

Motor

Chudasama

by

computation

Corp.,

123

be

made

F.3d

1353,

1364 n. 27 (11th Cir. 1997); see also S.E.C. v. Smyth, 420 F.3d
1225, 1231 (11th Cir. 2005).
Plaintiff

shows

that

on October

3,

2008,

it

made

a

loss

payment to the Owner in the amount of $399,820.00, representing
the

actual

deductible.

cash

value

of

(Prickett Decl.

the

building

at 4.)

less

the

Subsequently,

policy

Plaintiff

made two loss payments on December 24, 2008, in the amount of

$25,450.00 and $1,192.00, to reimburse the Owner for demolition
costs and temporary repairs.

(Id^ at 5-6.)

The record also

shows that Plaintiff made a final loss payment on February 2,

2009, in the amount of $2,761.06 for further repairs.

7.)

Consequently,

(Id^ at

Plaintiff is entitled to entry of default
6

judgment

against

representing the

Defendant

in

the

sum

of

$429,223.06,

total amount of all payments made for damages

caused by the fire.

IV.

Based

upon

the

CONCLUSION

foregoing,

judgment (Doc. 14) is GRANTED.

judgment

in

favor

of

Plaintiff's

all deadlines and motions,

for default

The Clerk is instructed to enter

Plaintiff

total amount of $429,223.06.

motion

and against

Defendant

in the

The Clerk is DIRECTED to TERMINATE

and CLOSE this case.

ORDER ENTERED at Augusta,

Georgia,

this

t^u

day of

September, 2014.

i

HONORABl

V UNITED/STATES DISTRICT JUDGE
^SOUTHERN DISTRICT OF GEORGIA