The Cincinnati Insurance Company v. Wolverine Brass, Inc. et al

Filing 57

ORDER on 56 FINAL MOTION for Entry of Default against Fanski Group, Inc. The court will dismiss the action against Fanski USA without prejudice unless within 30 days Plaintiff shows good cause for failure to complete service. The court wil l treat Plaintiff's Request for Entry of Default Judgment for Sum Certain Against Defendant Fanski Group, Inc. (Doc. 56 ) as an application to the court for a default judgment under Fed. R. Civ. P. 55(b)(2). The court will set this matter for a damages hearing consistent with Fed. R. Civ. P. 55(b)(2)(B). Signed by District Judge Geoffrey W. Crawford on 3/12/2025. (sjl)

1 ~-~, Ois i Hit: T COURT
_/.., I RICT OF VERMOt'T

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
THE CINCINNATI INSURANCE
COMPANY,
Plaintiff,
V.

FANSKI GROUP, INC. and FANSKI USA,
Defendants.

F/LEO

Case No. 5:22-cv-71

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ORDER ON MOTION FOR ENTRY OF DEFAULT UNDER RULE 55(b)(l)
(Doc. 56)
The Cincinnati Insurance Company brought this action as subrogee of its insureds,
Theodore and Maureen Steckel, against multiple defendants after an alleged issue with a water
supply line at the insureds' residence "caused water to discharge throughout the Premises."
(Doc. 1 ,r 36.) The Complaint alleges that it paid the insureds under its policy "in an amount in
excess of $296,696.90." (Id. ,r 38.) All defendants except for Fanski Group, Inc. and Fanski
USA have settled. (See Doc. 55.) The Clerk previously issued an Entry of Default against
Fanski Group, Inc. under Fed. R. Civ. P. 55(a). (Doc. 30.) 1
Now pending is Plaintiffs Motion for default judgment against Fanski Group, Inc. under
Fed. R. Civ. P. 55(b)(l). (Doc. 56.) Plaintiff seeks defaultjudgment of$119,196.90, calculated
as follows:

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There is no indication on the docket that Fanski USA was ever served. The court will
dismiss the action against Fanski USA without prejudice unless within 30 days Plaintiff shows
good cause for failure to complete service. See Fed. R. Civ. P. 4(m).

Building: $273,788.85
Personal Property: $22,908.05
Deductible: $2,500.00
TOTAL CLAIM: $299,196.90
[less]
Partial settlement: $180,000.00
DEFAULT JUDGMENT SOUGHT: $119,196.90.
(Doc. 56 at 1.) Fanski Group, Inc. has not filed any opposition or response.
"Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for
obtaining a default judgment." Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011)
(per curiam). "The first step is to obtain an entry of default." Id.; see also Fed. R. Civ. P. 55(a).
As noted above, Plaintiff previously obtained an entry of default against Fanski Group, Inc.
(Doc. 30.)
"The next step requires the plaintiff to seek a judgment by default under Rule 55(b)."
Priestley, 647 F.3d at 505. "Rule 55(b)(l) allows the clerk to enter a default judgment if the

plaintiffs claim is for a sum certain and the defendant has failed to appear." Id. "In all other
cases Rule 55(b )(2) governs. It requires a party seeking a judgment by default to apply to the
court for entry of a default judgment." Id.
The court concludes that entry of a default judgment by the clerk under Rule 55(b)(1) is
not available or appropriate in this case. The clerk may only enter judgment under that rule if
"the plaintiffs claim is for a sum certain or a sum that can be made certain by computation."
Fed. R. Civ. P. 55(b)(l). Here, the Complaint alleges that, under the insurance policy, Plaintiff
made payments to, or on behalf of, the insureds "in an amount in excess of $296,696.90."
(Doc. 1 ,-i 177.) That figure is the sum of the "building" ($273,788.85) and "personal property"
($22,908.05) numbers listed in Plaintiffs Rule 55 motion. But "a claim is not for a 'sum certain'

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merely because the demand in the complaint is for a specific dollar amount." 10 Moore's
Federal Practice - Civil § 55.20[3] (3d ed.).
Whether a claim is for a "sum certain" depends "on the nature of the claim and the
circumstances." Id. Plaintiffs causes of action against th~ Fanski Group, Inc. are third-party
subrogation claims for negligence, strict liability, and breach of implied warranty in connection
with water damage to real and personal property allegedly caused by a malfunctioning product.
(See Doc. 1, Counts XIII, XIV, and XV.) Although the sums that Plaintiff paid under its policy
are "certain," the court cannot conclude that Plaintiffs claims against Fanski Group, Inc. are
"liquidated or for a fixed and indisputable amount." 10 Moore's Federal Practice - Civil
§ 55.20[2] (3d ed.).
There is no evidence that the sums Plaintiff paid were based on a liquidated or fixed and
indisputable amount. To the contrary, an insurer's payments in situations like this are usually
based at least in part on estimates or opinions. See, e.g., Ace Grain Co. v. Am. Eagle Fire Ins.
Co. ofN Y, 11 F.R.D. 364, 365 (S.D.N.Y. 1951) (insurance adjuster's findings represented "an
opinion as to value" and claimed cargo damage under insurance policy was not for a "sum
certain"); accord Farm Fam. Mut. Ins. Co. v. Thorn Lumber Co., 501 S.E.2d 786, 791 (W. Va.
1998) (amount insurer paid under insurance contract was not a "sum certain" because the action
was based upon a negligence allegation and "[t]he amount of damages in a property damage
action usually calls for jury resolution"). The court therefore concludes that this case does not
involve the "unusual" circumstances where the amount of damages is "certain." 10 Moore's
Federal Practice - Civil§ 55.20[2] (3d ed.). For these reasons, the court concludes that
Plaintiffs motion must be treated as a motion for entry of default judgment under Fed. R. Civ. P.
55(b)(2).

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Conclusion
The court will dismiss the action against Fanski USA without prejudice unless within
30 days Plaintiff shows good cause for failure to complete service. See Fed. R. Civ. P. 4(m).
The court will treat Plaintiff's Request for Entry of Default Judgment for Sum Certain
Against Defendant Fanski Group, Inc. (Doc. 56) as an application to the court for a default
judgment under Fed. R. Civ. P. 55(b)(2). The court will set this matter for a damages hearing
consistent with Fed. R. Civ. P. 55(b)(2)(B).
Dated at Burlington, in the District of Vermont, this 12th day of March, 2025.

Isl Geoffrey W. Crawford

District Judge
United States District Court

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