Maxum Indemnity Company v. Drive West Insurance Services, Inc./Mulberry Insurance Services. Inc. et al

Filing 43

OPINION AND ORDER granting 34 Motion for Default Judgment Against Defendants Tigran Pogosyan A/K/A Tony Pogosyan, MC Risk, LLC, James Cincotta, Julie Cincotta, and Drive West Insurance Services, Inc./Mulberry Services, Inc. The Court ENTERS DEFAUL T JUDGMENT against these defendants AS PRAYED FOR, and DECLARES that Plaintiff Maxum will have no obligation to defend or indemnify Defendant Mulberry with respect to the underlying lawsuits and Defendants Pogosyan, MC Risk, LLC, James Cincotta, and Julie Cincotta shall have no right of recovery against Maxum for any judgments, settlements, damages, costs or fees awarded. Signed by Judge S Arthur Spiegel on 8/15/2013. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MAXUM INDEMNITY COMPANY,
Plaintiff,
v.
DRIVE WEST INSURANCE
SERVICES, INC./MULBERRY
INSURANCE SERVICES, INC.,
et al.,
Defendants.

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NO. 1:13-CV-00191

OPINION AND ORDER

This matter is before the Court on Plaintiffs’ Motion for
Default Judgment Against Defendants Tigran Pogosyan A/K/A Tony
Pogosyan, MC Risk, LLC, James Cincotta, Julie Cincotta, and Drive
West Insurance Services, Inc./Mulberry Services, Inc. (doc. 34),
Defendant Sharp (Oakwood Estates), Inc.’s Opposition (doc. 36),
Defendant National Condo & Apartment Insurance Group’s Opposition
(doc. 39), Plaintiff’s Reply (doc. 40), Plaintiff and Defendant
Sharp’s Stipulation (doc. 41), and Plaintiff’s Reply (doc. 42).
For the reasons indicated herein, the Court GRANTS Plaintiff’s
motion.
This is an insurance coverage dispute in which Plaintiff
Maxum Indemnity Company, (“Maxum”), an insurer, seeks rescission
and declaratory relief with respect to a policy it issued to
Defendant Drive West Insurance Services, Inc./Mulberry Insurance
Services,

Inc.

(“Mulberry”)(doc.

34).

Plaintiff

served

its

Complaint

but

to

date

Defendants

Tigran

Pogosyan

a/k/a

Tony

Pogosyan (“Pogosyan”), MC Risk LLC, James Cincotta, Julie Cincotta,
and Mulberry have failed to file a responsive pleading or otherwise
defend this matter as required by law (Id.).

Plaintiff has

obtained a clerk’s entry of default as to each of the above
Defendants, and now seeks default judgment (Id.).
Defendant

Sharp

(Oakwood

Estates)

initially

opposed

Plaintiff’s motion out of concern that an entry of default against
the other Defendants would be used as collateral estoppel against
Sharp (doc. 36).

However, Plaintiff agreed it would not use the

default judgment to estop Sharp from arguing Sharp is entitled to
insurance

monies

pursuant

to

the

policy

Plaintiff

issued

to

Mulberry (doc. 41).
Defendant National Condo & Apartment Insurance Group
(“NCAIG”) similarly opposed Plaintiff’s motion to the extent that
a default judgment would adversely impact coverage on NCAIG’s
claims against Mulberry Services, Inc., in the underlying lawsuits
(doc. 39).

Plaintiff replies that it does not intend to use the

entry of default as a basis to estop NCAIG from arguing NCAIG is
entitled to insurance monies under the Maxum policy, and NCAIG’s
right to seek coverage under the policy will not be prejudiced
(doc. 42).
Having reviewed this matter, the Court finds Plaintiff’s
motion well-taken.

Inasmuch as the Clerk has entered an entry of

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default, the posture of this case is such that the Court can
properly enter judgment against Defendants.
55(b)(2).

Fed. R. Civ. P.

Defendants Pogosyan, MC Risk LLC, James Cincotta, Julie

Cincotta, and Mulberry have failed to file a responsive pleading or
otherwise defend this matter, nor has an attorney entered an
appearance for any of them.

Entry of default judgment is

therefore appropriate as to these Defendants.

Iron Workers Dist.

Council v. Hoosier Steel, Inc., No 11-CV-458, 2012 U.S. Dist. LEXIS
47083 (S.D. Ohio, April 3, 2012).

The Court notes that Defendant

Sharp’s objection was dropped, and finds NCAIG’s rights will not be
prejudiced by entry of default judgment.
Accordingly, pursuant to Fed. R. Civ. P. 55(b)(2) the
Court

GRANTS

Plaintiffs’

Motion

for

Default

Judgment

Against

Defendants Pogosyan, MC Risk, LLC, James Cincotta, Julie Cincotta,
and Drive West Insurance Services, Inc./Mulberry Services, Inc.
(doc. 34).

The Court therefore ENTERS DEFAULT JUDGMENT against

such defendants AS PRAYED FOR.

The Court therefore DECLARES that

Plaintiff Maxum will have no obligation to defend or indemnify
Defendant Mulberry with respect to the underlying lawsuits and
Defendants Pogosyan, MC Risk, LLC, James Cincotta, and Julie
Cincotta shall have no right of recovery against Maxum for any
judgments, settlements, damages, costs or fees awarded.
SO ORDERED.
Dated: August 15, 2013

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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