Zurich American Insurance Company v. Roadmark Corporation

Filing 16

ORDER and DEFAULT JUDGMENT. Signed by Peter A. Moore, Jr., Clerk of Court on 2/17/2021. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:20-CV-70-BO
ZURICH AMERICAN INSURANCE
COMPANY,
Plaintiff,
v.
ROADMARK CORPORATION,
Defendant.

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ORDER &
DEFAULT JUDGMENT

This matter is before the clerk on the motion for default judgment [DE-14] filed by plaintiff
Zurich American Insurance Company. For the reasons set forth below, the motion is GRANTED
in part.
DISCUSSION
Plaintiff commenced this action on February 26, 2020 by filing a complaint alleging a claim
for breach of contract and a claim for account stated arising out of defendant Roadmark
Corporation’s alleged failure to pay premium obligations for two workers compensation insurance
policies and a general liability insurance policy. In the complaint, plaintiff seeks damages in the
amount of $350,282.38 along with attorney’s fees, costs, and interest.
On July 23, 2020, the undersigned entered default against defendant for failure to answer.
Plaintiff filed the instant motion for default judgment on December 7, 2020, relying upon the
declarations of Julianne Cook, Dennis E. Kadian, and its attorney, R. Scott Tobin. Plaintiff now
seeks judgment pursuant to Fed. R. Civ. P. 55(b)(1) in the amount of $350,282.38, plus attorneys’
fees and costs totaling $23,853.30.

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The clerk is empowered to enter default judgment where the defendant has not appeared in
the action and the plaintiff’s claims are for a sum certain or a sum that can be made certain by
computation. Fed. R. Civ. P. 55(b)(1). In this action, defendant has defaulted for failure to appear,
and plaintiff’s claims are for a sum that can be made certain by computation—the amount of
premiums owed under the issued policies: $350,252.38. Accordingly, to the extent that plaintiff
seeks judgment in the amount of $350,252.38, the motion for default judgment is granted.
Plaintiff also seeks, however, attorney’s fees and costs in the amount of $28, 853.90. Under
North Carolina law, “a successful litigant many not recover attorneys fees, whether as costs or as
an item of damages, unless such recovery is expressly authorized by statute.” Stillwell Enters.,
Inc. v. Interstate Equip. Co., 300 N.C. 286, 289, 266 S.E 2d. 812, 814 (1980). Plaintiff cites no
statute authorizing attorney’s fees under these circumstances, and consequently, its request for
such fees must be denied. After entry of this default judgment, Plaintiff may file an application
for allowable costs pursuant to Fed. R. Civ. P. 54(d)(1) and Local Civil Rule 54.1.
CONCLUSION
For the foregoing reasons, the motion for default judgment [DE-14] is GRANTED in part.
Default judgment is hereby entered against defendant Roadmark Corporation in favor of plaintiff
Zurich American Insurance Company in the amount of $350,252.38.
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SO ORDERED. This the ___ day of February, 2021.
_______________________
Peter A. Moore, Jr.
Clerk of Court

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