Opinion
Civil Action No. 5:03-CV-034-C
May 29, 2003
ORDER
On this date the Court considered National American Insurance Company's ("Plaintiff') Motion for Default Judgment Against Larry Coronado, Sr. ("Defendant Coronado Senior") and Supporting Brief filed on May 5, 2003. Defendant Coronado Senior filed no response. After considering all the relevant arguments and evidence, this Court GRANTS Plaintiff's Motion for Default Judgment Against Larry Coronado, Sr.
DISCUSSION
Plaintiff's Original Complaint for Declaratory Judgment filed February 10, 2003, against Defendant Coronado Senior and Denise Coronado, Individually and as Next Friend of Larry Coronado, II and Adriana Coronado, Minors ("Coronado Defendants"), asked this Court to declare that Plaintiff has no duty to defend or indemnify Defendant Coronado Senior in the underlying lawsuit entitled Denise Coronado as Next Friend of Larry Coronado II and Adriana Coronado, Minors v. Osage Environmental, Inc., et al., brought in the 79th Judicial District Court in and for Jim Wells County, Texas. The Original Answer of Coronado Defendants to Plaintiff's Original Complaint for Declaratory Judgment was filed March 24, 2003.
Defendant Coronado Senior received service of process of Plaintiff's Original Complaint for Declaratory Judgment on March 3, 2003. Despite Plaintiff's acquiescence to a first extended answer date of April 10, 2003, and an agreed second extended answer date of April 30, 2003, Defendant Coronado Senior has yet to file an answer to Plaintiff's Original Complaint for Declaratory Judgment. Plaintiff now requests this Court to enter against Defendant Coronado Senior declaratory judgment by default.
Rule 55 of the Federal Rules of Civil Procedure provides that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, . . . [j]udgment by default may be entered . . . [b]y the Court." FED. R. CIV. P. 55.
Here, the record shows that Defendant Coronado Senior has failed to "plead or otherwise defend" against Plaintiff's Original Complaint for Declaratory Judgment. Additionally, Defendant Coronado Senior has failed to respond to Plaintiff's instant motion. Therefore, this Court enters a no-answer default declaratory judgment against Defendant Coronado Senior and in favor of Plaintiff declaring that Plaintiff has no duty to defend or indemnify Defendant Coronado Senior in the underlying state lawsuit noted above. See e.g., Commonwealth County Mut. Ins. Co. v. Moctezuma, 900 S.W.2d 798, 800 (Tex.App.-San Antonio 1995, dism. agr.) (entering default declaratory judgment when party failed to show up at declaratory judgment hearing); Fed. Kemper Ins. Co. v. Rauscher, No. 85-3820, 1985 U.S. Dist. LEXIS 12247, * 2 (E.D. Pa. 1985) (entering default declaratory judgment of non-liability when defendant failed to appear and defend); Cont'l Ins. Cos. v. S. Jersey Gas Co., 409 F. Supp. 1130, 1132 (D.N.J. 1976) (affirming chancery court's entry of default declaratory judgment based on defendant's failure to answer).
CONCLUSION
After considering all the relevant arguments and evidence, this Court GRANTS Plaintiff's Motion for Default Judgment Against Larry Coronado, Sr. and hereby DECLARES that Plaintiff has no obligation to defend against or to provide indemnity with respect to the claims asserted by Coronado Defendants in the underlying state lawsuit referred to above.
SO ORDERED.
DECLARATORY JUDGMENT
The Court having granted Plaintiff's Motion for Default Judgment Against Larry Coronado, Sr., enters the following Declaratory Judgment:IT IS HEREBY ORDERED, ADJUDGED, AND DECLARED that Plaintiff, NATIONAL AMERICAN INSURANCE COMPANY, has no duty to defend or indemnify Defendant, LARRY CORONADO, SR., in the underlying lawsuit entitled Denise Coronado as Next Friend of Larry Coronado II and Adriana Coronado, Minors v. Osage Environmental, Inc., et al., brought in the 79th Judicial District Court in and for Jim Wells County, Texas.