Westport Insurance Corporation v. Harrison Fincher & Associates LLC et al
Filing
32
OPINION AND ORDER granting 21 MOTION For an Order Compelling HFA to File an Appearance, Its Original Answer, and an Amended Answer, MOTION for Entry of Default as to Defendant Harrison, Fincher & Associates, LLC. Signed by Honorable Cameron McGowan Currie on 7/9/2012.(ssam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Westport Insurance Corporation,
)
)
Plaintiff,
)
)
vs.
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Harrison, Fincher & Associates, LLC;
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QBE Insurance Corporation,
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Defendants.
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___________________________________ )
C.A. No. 3:12-cv-993-CMC
OPINION AND ORDER
FINDING DEFENDANT HARRISON,
FINCHER & ASSOCIATES, INC.,
IN DEFAULT
QBE Insurance Corporation,
)
)
Third-Party Plaintiff, )
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vs.
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Continental Casualty Company,
)
___________________________________ )
This matter is before the court on motion of Plaintiff Westport Insurance Corporation
(“Westport”) for entry of default as to Defendant Harrison, Fincher & Associates, LLC (“HFA”).
This motion is granted for the reasons set forth below.1
Westport acknowledges that HFA served an answer on Westport on or about May 10, 2012,
but challenges the adequacy of that answer on two grounds. First, Westport notes that HFA failed
to file its answer despite repeated demands that it do so. See Dkt. No. 21-1 (answer dated May 10,
2012); Dkt. No. 21-2 (email communications from Westport’s counsel to HFA’s counsel addressing
concerns and forwarding a copy of the court order, Dkt. No. 20, which noted the absence of a filed
1
The motion is captioned as follows: “Motion for Entry of Default as to Defendant [HFA],
and alternatively for an order compelling it to file an appearance, its original answer and an amended
answer.” Dkt. No. 21. It is designated on the docket as a “Motion for an Order Compelling HFA
to File an Appearance.”
answer). Second, Westport argues that HFA’s answer is defective in that it consists of a singleparagraph, general denial of a detailed, ninety-three paragraph complaint which contained a number
of paragraphs which may not be appropriately addressed through a general denial. These concerns
were also raised with HFA’s counsel before the motion was filed. See Dkt. No. 21-2 at 1 (email
exchange in which Westport’s counsel raises concerns with the adequacy of the answer and grants
a twenty-day extension to HFA to “file an appropriate Answer”). Despite receiving an extension of
time to do so, HFA failed to file any answer, much less one attempting to cure the alleged
deficiencies. See id. at 1. (HFA’s counsel responding that he “will have an appropriate answer by
Monday, May 28”).
Westport has submitted HFA’s answer as an attachment to its motion. This answer is signed
by Stanley G. Freeman, Esquire (Freeman). Although Freeman has been admitted to this court’s bar,
he has failed to complete the steps necessary to file documents electronically. This places Freeman
in violation of this district’s rules because all attorneys admitted to this court’s bar are required by
this district’s Electronic Case Filing Policies and Procedures (“ECF Policies”), which went into
effect in mid 2006, to complete those steps or seek an exemption. See ECF Policies §§ 3.1, 3.2.2
It also renders the limited answer which was served a nullity because HFA, an entity, cannot appear
without counsel authorized to appear in this court. See generally Palazzo v. Gulf Oil Corp., 764 F.2d
1381, 1385 (11th Cir. 1985) (stating “well established” rule that artificial entity, there a corporation,
must be represented by counsel because it cannot appear pro se).
2
Although not expressly covered by the rules, the court has allowed a third option: attorneys
who do not intend to represent parties before this court may affirmatively ask to be placed in inactive
status. An attorney placed in inactive status may not file documents or represent parties in actions
before this court unless and until they complete the necessary steps. Freeman has not sought inactive
status. His service of an answer in a matter pending in this court is, in any event, inconsistent with
inactive status.
2
Unfortunately, HFA does not appear to have made any effort to cure the deficiencies noted
in Westport’s motion. This is despite multiple email communications from Westport’s counsel
raising the concerns before filing the present motion and service of a related court order and the
present motion. See Dkt. No. 21-2 (continuing emails from Westport’s counsel to HFA’s counsel
through June 1, 2012); Dkt. No. 21at 7 (certificate of service indicating service by hand-delivery in
addition to emailing). It is also despite a pre-motion email from HFA’s counsel indicating that he
intended to file an amended answer by a specified date Dkt. No. 21-2 at 1. Neither has HFA
offered any response to the present motion challenging Westport’s arguments. Under these
circumstances, the court finds HFA is in default. The court further finds that this default is without
justification or excuse and, consequently, declines the suggested lesser relief of ordering HFA to cure
the defaults by filing an appropriate amended answer.
CONCLUSION
For the reasons set forth above, the court holds HFA in default. However, because the claims
against HFA are intertwined with those against its co-defendant, QBE Insurance Corporation
(“QBE”), the court will defer entry of judgment as to HFA until the claims against QBE are also
resolved.3
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
July 9, 2012
3
Through this action, Westport seeks both to rescind a professional liability policy issued
to HFA and a declaratory judgment that it is not obligated to defend or indemnify HFA in two related
actions brought against HFA by QBE. In the underlying actions, QBE alleges, inter alia, that HFA
breached its professional duties as an insurance agency to provide QBE notice of a lawsuit brought
against QBE’s insured, which failure led to a substantial default judgment. Thus, any decision as
to the existence and scope of insurance coverage affects both HFA and QBE.
3
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