Admiral Insurance Company v. Wieland et al

Filing 20

ORDER GRANTING 19 Motion for Default Judgment. Signed by Judge Robert Pitman. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

ADMIRAL INSURANCE COMPANY,
Plaintiff
V.
ROGER WIELAND and
ROGER WIELAND HILL COUNTRY
HERITAGE INSURANCE, LLC,
Defendants

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1:15-CV-077 RP

DEFAULT JUDGMENT
Before the Court is Plaintiff’s Motion for Default Judgment, filed July 15, 2015 (Clerk’s Dkt.
#19). Plaintiff seeks a default judgment against Defendants Roger Wieland (“Wieland”) and Roger
Wielands Hill Country Heritage Insurance d/b/a Hill Country Heritage Insurance Agency (the
“Agency” and, together with Wieland, the “Defendants”) pursuant to Federal Rule of Civil Procedure
55(b) on the ground that Defendants failed to answer or otherwise defend against Plaintiff’s
Complaint. Having reviewed Plaintiff’s motion, the relevant case law and the entire case file, the
Court finds Plaintiff’s motion should be granted.
The Clerk of Court Clerk entered an Entry of Default against Defendants in this action on
March 9, 2015. The Defendants’ default “does not in itself warrant the court entering a default
judgment. There must be a sufficient basis in the pleadings for the judgment entered. . . . The
defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law. In
short, . . . a default is not treated as an absolute confession of the defendant of his liability and of
the plaintiff's right to recover.” Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200,
1206 (5th Cir. 1975); see also 10A Wright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE §
3688 at 63 (“Even after default, however, it remains for the court to consider whether the

unchallenged facts constitute a legitimate cause of action, since a party in default does not admit
mere conclusions of law.”).
According to the unchallenged facts set forth in the Complaint, Defendants failed to remit
to their insurance carrier, Plaintiff, certain insurance premiums due and owing to Plaintiff.
Consequently, Wieland executed a promissory note made payable to Plaintiff in the amount of
$128,686.80, which amount equaled the unpaid premiums (the “Promissory Note”). A copy of the
Promissory Note was attached to Plaintiff’s Complaint as Exhibit A.
The Promissory Note states on its face it was made by Weiland “FOR VALUE RECEIVED
in the form of audit premium paid to my agency but not remitted to the carrier,” and sets forth a
repayment schedule that provides for penalties in the event of late payment. According to Plaintiff,
the Agency made three payments under the Promissory Note for a total of $15,000.00, but then
failed to make the other required payments. Under the unchallenged facts set forth in the
Complaint, Defendants still owe Plaintiffs $113,686.80. Defendants have not responded or
otherwise attempted to defend against Plaintiff’s claims.
These unchallenged facts constitute a legitimate cause of action, whether for breach of
contract or under a theory of unjust enrichment. Therefore, Plaintiff’s Complaint contains a
sufficient basis for the entry of a default judgment.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED Plaintiff’s Motion for Default
Judgment (Clerk’s Dkt. #19) is hereby GRANTED, and Default Judgment Is hereby entered in favor
of Plaintiff and against Defendants.

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IT IS FURTHER ORDERED Plaintiff shall recover from Defendants, jointly and severally
the principal amount of $113,686.80.
SIGNED on August 5, 2015.

ROBERT L. PITMAN
UNITED STATES DISTRICT JUDGE

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