United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. Goodwin Judge.
before the court is the plaintiff's Motion for Summary
Judgment [ECF No. 10]. The defendant has not responded. The
Motion [ECF No. 10], which the court is construing as a
motion for default judgment, is GRANTED.
March 12, 2015, an engineered material arresting system
(“EMAS”) collapsed at Yeager Airport in
Charleston, West Virginia. Pet. for Declaratory J. Ex. 1, at
¶¶ 19, 21 [ECF No. 1-1] (“Underlying
Compl.”). At the time, Theodore and Rebecca Carter
lived near Yeager Airport. “Notwithstanding the fact
that the [Carters'] home remained intact and undamaged .
. . [Yeager] Airport, [John] Wellford and Corotoman
demolished the [Carters'] home on March 13, 2015, stating
some days or weeks later that an ‘emergency'
necessitated the demolition.” Id. ¶ 48.
The Carters allege that Mr. Wellford, “was on the
[Carters'] property and ordered the demolition of the
[Carters'] home.” Id. ¶ 16. The
Carters allege that Mr. Wellford ordered that their home be
demolished either on “the mistaken belief that [Yeager]
Airport had purchased the Carters' home, ”
id. ¶ 73, or in his role as agent for Corotoman
with the intent that Corotoman purchase the property after
demolition and condemnation, id. ¶ 82.
January 30, 2017, the Carters filed an amended complaint
against the Central Regional West Virginia Airport Authority
(“Yeager Airport”), Corotoman, Inc., and John H.
Wellford, III in the Circuit Court of Kanawha County, West
Virginia. Id. ¶¶ 2-4. In the Complaint,
the Carters seek to recover damages from the demolition of
their home. See Id. ¶ 16.
March 13, 2015, the date that Mr. Wellford directed the
demolition of the Carters' home, he was insured under two
insurance policies provided by Erie Insurance Property &
Casualty Company (“Erie”): (1) an Erie ExtraCover
HomeProtector Insurance Policy, Policy No. Q26-5550008
(“HomeProtector Policy”) [ECF No. 1-2], and (2)
an Erie Personal Catastrophe Liability Insurance Policy,
Policy No. Q50-5500234 (“PCL Policy”) [ECF No.
1-3]. On or about February 22, 2017, Mr. Wellford provided
Erie notice of the underlying lawsuit through written
communication with his insurance agent. Aff. Erie Ins. Prop.
& Cas. Co. 1-2 [ECF No. 13]. Erie investigated Mr.
Wellford's claim, determined no coverage existed for the
underlying lawsuit under either policy, and issued a denial
dated April 27, 2017. Id. at 4-12.
18, 2017, Erie filed this declaratory judgment action against
Mr. Wellford pursuant to the Federal Declaratory Judgment
Act, 28 U.S.C. § 2201. Pet. Declaratory J. Erie seeks
four declarations: (1) the HomeProtector Policy does not
provide coverage for the Underlying Lawsuit, (2) Erie has no
duty to defend or indemnify Mr. Wellford under the
HomeProtector Policy in the Underlying Lawsuit, (3) the PCL
Policy does not provide coverage for the Underlying Lawsuit,
(4) Erie has no duty to defend or indemnify Mr. Wellford
under the PCL Policy in the Underlying Lawsuit. Id.
Wellford was personally served the summons on June 10, 2017.
Summons [ECF No. 4]. He has not made an appearance in this
action. On July 7, 2017, the Clerk entered default.
Clerk's Entry Default [ECF No. 7]. On December 29, 2017,
Erie filed a Motion for Summary Judgment [ECF No. 10].
the Clerk has entered default, the court's authority to
enter judgment against the defendant is properly
characterized as the power to enter default judgment. See
United Fin. Cas. Co. v. Milton Hardware, LLC, No.
3:17-2002, 2018 WL 2207130, at *1 (S.D. W.Va. May 14, 2018).
Therefore, the court will construe the motion as one for
default judgment, not summary judgment.
default is entered by the clerk, a party may move the court
for default judgment under Rule 55(b). Indeed, applying to
the court for default judgment is necessary where, as here,
the plaintiff's claim is not for a sum certain or made
certain by computation. Fed.R.Civ.P. 55(b). Upon default, all
of the well-pleaded facts alleged in the complaint as to
liability may be taken as true. See Ryan v. Homecomings
Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001) (quoting
Nishimatsu Constr. Co. v. Hous. Nat'l
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).
“Although the clear policy of the Rules is to encourage
dispositions of claims on their merits, trial judges are
vested with discretion, which must be liberally exercised, in
entering [default] judgments . . . .” United States
v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982) (citations
omitted). The court, however, must not enter default judgment
that “differ[s] in kind from, or exceed in amount, what
is demanded in the pleadings.” Fed.R.Civ.P. 54(c).
previously explained that:
[a]s a general principle, this court is wary of entering
default judgment in a suit for declaratory relief. By nature,
a declaratory judgment action is jurisdictionally unique. I
am uncomfortable with the idea of providing declaratory
relief where the merits of a case have not been fully
litigated. See Restatement 2d Judgment § 33
(stating that a court “should not make a declaration
upon default on the basis of the pleadings alone but ...