Crum v. Canopius US Insurance Company

Filing 14

MEMORANDUM OPINION AND ORDER adopting the 13 Proposed Findings and Recommendations of the Magistrate Judge; granting the 8 Motion for default judgment on the counterclaim, with defendants having no obligation to provide coverage under the ap plicable policy; as plaintiff has not appeared for purposes of prosecuting the complaint or defending the counterclaim, directing that this action is referred anew to the magistrate judge for such further proceedings, including a hearing to show cause, that may be necessary to adjudicate the remainder of this action. Signed by Judge John T. Copenhaver, Jr. on 8/12/2015. (cc: plaintiff, pro se; counsel of record; United States Magistrate Judge) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
DAVID TIMOTHY CRUM d/b/a
NATIONAL MINE SUPPLY
Plaintiff,
v.

Civil Action No. 2:14-24861

CANOPIUS US INSURANCE INC., and
f/k/a OMEGA US INSURANCE INC.,
Defendants
MEMORANDUM OPINION AND ORDER
Pending is the defendants’ motion for default judgment
or, in the alternative, for summary judgment on their counterclaim
for declaratory judgment, filed December 1, 2014.
This action was previously referred to Dwane L.
Tinsley, United States Magistrate Judge, who has submitted his
Proposed Findings and Recommendation pursuant to the provisions
of 28 U.S.C. § 636(b)(1)(B).

The court has reviewed the

Proposed Findings and Recommendation entered by the magistrate
judge on July 2, 2015.

The magistrate judge recommends that the

defendants’ motion for default judgment be granted and their
motion for summary judgment denied as moot.
The plaintiff has not objected to the Proposed
Findings and Recommendation.

It is undisputed that on three

different occasions the plaintiff failed to produce documents
requested by defendants during the investigation of his
insurance claim.

It is further undisputed that the failure to

produce those documents materially prejudiced the defendants
during the investigation of the claim.

It is also undisputed

that the applicable policy requires the plaintiff to permit the
defendants to examine his books and records upon request when a
claim is made and to otherwise compel him to cooperate during
the investigation of the claim.

He has failed to do so.

Based upon these defaults, along with other defaults
described in the counterclaim, defendants seek a declaration on
the counterclaim that plaintiff is not entitled to coverage
under the applicable policy.
Inasmuch as plaintiff has neither answered the
counterclaim, nor responded to the motion for default judgment
thereon, it is ORDERED as follows:
1.

That the Proposed Findings and Recommendation be, and
it hereby is, adopted by the court; and

2.

That the motion for default judgment on the
counterclaim be, and hereby is, granted, with
defendants having no obligation to provide coverage
under the applicable policy.
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As the magistrate judge notes, this action was
originally instituted against Herman Williams, Saw Williams and
H and P Recycling.

There is no indication in the record that

those defendants were ever served with process or otherwise
pursued as real parties in interest.

Inasmuch as plaintiff has

not appeared for purposes of prosecuting the complaint or
defending the counterclaim, it is ORDERED that this action be,
and hereby is, referred anew to the magistrate judge for such
further proceedings, including a hearing to show cause, that may
be necessary to adjudicate the remainder of this action.
The Clerk is directed to forward copies of this
written opinion and order to the pro se plaintiff at his last
known mailing address, all counsel of record, and the United
States Magistrate Judge.
DATED:

August 12, 2015

John T. Copenhaver, Jr.
United States District Judge

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