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holding defendant in default sua sponte as inherent power of the court
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CIVIL ACTION NO. 2:10-CV-0191-WCO
01-12-2012
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff, v. JEFF HASLUP and JANICE HASLUP, as survivors of STEPHANIE DIANE HART, and JONATHAN HART, Defendants.
ORDER
The captioned case is before the court for consideration of plaintiff's "Motion for Summary Judgment" [17] and the "Cross Motion for Summary Judgment" of Jeff Haslup and Janice Haslup [18].
This declaratory judgment action was filed on September 21, 2010. The court has jurisdiction pursuant to 28 U.S.C. §§ 1332 and 2201. Plaintiff is an Illinois corporation with its principal place of business in Illinois and each defendant is a resident of Georgia. Additionally, the amount in controversy exceeds $75,000.
On April 20, 2011, plaintiff filed a motion for summary judgment. On May 10, 2011, Jeff Haslup and Janice Haslup ("the Haslups") filed a cross-motion for summary judgment. The court held oral argument on the motions and subsequently took this case under consideration.
Defendant Jonathan Hart has never answered the complaint or filed any pleadings in this action.
I. Summary Judgment Standard
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The moving party may demonstrate the absence of a genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Id. at 56(c)(1)(A). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion" by identifying the evidence "which it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This initial responsibility is discharged when the movant shows that there is no dispute of material fact or that the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23. Once the moving party has met its initial burden, the nonmoving party must "go beyond the pleadings," and, utilizing its own evidentiary submissions or those already filed, demonstrate that there is a genuine dispute of material fact such that a trial is required. Id. at 324. The evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In addition to the materials cited by the parties, the court may also refer to other materials in the record. FED. R. CIV. P. 56(c)(3).
"An issue of fact is 'material' if, under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004) (citing Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997)). An issue of fact is considered "genuine" if the "record taken as a whole could lead a rational trier of fact to find for the non-moving party." Hickson Corp., 357 F.3d at 1260. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Allen, 121 F.3d at 646 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Thus, the moving party is entitled to "judgment as a matter of law" when the non-moving party fails to make a sufficient showing of an essential element of the case on which the non-moving party bears the burden of proof. Celoxtex Corp., 477 U.S. at 322.
II. Factual Summary
This action stems from a wrongful death lawsuit brought in the Superior Court of Macon County, Georgia, by the Haslups against Jonathan Hart ("Jonathan"). The complaint in that suit alleges that Jonathan negligently and accidentally shot Stephanie Hart ("Stephanie") in the head, resulting in her death. Stephanie was the estranged wife of Jonathan and the Haslups' daughter. Plaintiff insured Jonathan under a Deluxe Homeowners Insurance Policy (the "insurance policy") between the dates of June 28, 2008, and June 28, 2009.
This insurance policy covers "damages which an insured person will become legally obligated to pay because of bodily injury or property damage arising from an occurrence." (Pl.'s Mot. for Summ. J. Ex. A2 14.) Bodily injury means "physical harm to the body, including sickness or disease, and resulting death." (Id. at Ex. A1 19.) An occurrence means "an accident, including continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage." (Id. at Ex. A1 20.) The insurance policy does not cover bodily injury "intended by, or which may reasonably be expected to result from the intentional act or acts or omissions of, any insured person, which are crimes pursuant to the Georgia Criminal Code." (Id. at Ex. A2 14.) This exclusion applies "regardless of whether or not such insured person is actually charged with, or convicted of a crime" and irrespective of whether the insured person "lacks the mental capacity to appreciate the criminal nature or wrongfulness of the act or omission or to conform his or her conduct to the requirements of the law or to form the necessary intent under the law." (Id.)
When citing plaintiff's exhibits, the court has used the page numbers added by the electronic docketing system, rather than the original page numbers contained on each document.
Stephanie died from a gunshot wound on July 25, 2008, at Jonathan's former residence located at 1002 Lothridge Road, Cleveland, Georgia. Also uncontested is the fact that Jonathan was the only other person in the residence on that date and that he was holding the gun that killed Stephanie. Based on Stephanie's death, Jonathan was tried and convicted of felony murder, aggravated assault, and possession of a firearm during the commission of a felony. The primary source of evidence relied on by both parties at this stage is Jonathan's testimony from his criminal trial.
Jonathan and Stephanie were married on September 9, 2006. Their marriage included infidelity and heated arguments. In November 2007, Jonathan was arrested for obstructing a 911 telephone call placed by Stephanie. Jonathan and Stephanie had been drinking and arguing and Stephanie eventually called 911. As she did so, Jonathan pulled the phone's plug out of the wall. (Pl.'s Mot. for Summ. J. Ex. B1 14.) Jonathan was arrested and released on bond pending trial. His bond required him to: (1) avoid all contact with Stephanie; (2) avoid possessing any firearms; (3) avoid alcohol and intoxication; and (4) avoid the residence where he and Stephanie lived. (Id. at Ex. B1 19.) The bond condition preventing Jonathan from living at his residence was lifted in December with Stephanie's consent. (Id.) Jonathan later pled guilty on July 17, 2008, to the misdemeanor charge and was sentenced to 12 months of probation.
A little more than a week later, on July 25, 2008, Stephanie died. On that date, Jonathan claimed to be sick after eating lunch and left work early. (Id. at Ex. B2 5-6.) On his way home, he stopped at a gas station to get cigarettes and a 12-pack of beer. He also stopped at his mother's house and picked up a .50 caliber muzzle loader and a .40 caliber carbine. (Id. at Ex. B2 6-8.) While he was there, he also took a box of .40 caliber bullets. According to Jonathan's testimony, he had left the guns with his parents to comply with the conditions of his bond. He retrieved the guns because he planned to show them to a potential buyer the next morning.
Upon arriving home, Jonathan brought the guns to his room and examined them. He cleaned the .40 caliber gun, emptied it of old bullets, reloaded it with fresh bullets, and cocked the firing hammer. (Id. at Ex. B2 9.) He claimed that he also put the safety on, but he later clarified that it was his "understanding that the safety was on, but it was never double-checked." (Id. at Ex. B3 31.) Allegedly, he prepared the gun for firing because he was planning to test fire it before the potential buyer arrived in the morning. Once the gun was ready, he brought it to the living room and laid it on the arm of his couch.
Jonathan testified at trial that "[m]y guns are always loaded." (Pl.'s Mot. for Summ. J. Ex. B1 7.)
Next, Jonathan called Stephanie and asked her to come by and sign some of the papers needed to finalize their divorce. She arrived at his residence at approximately 5:00 pm. (Id. at Ex. B2 12.) Jonathan and Stephanie went to the living room and began filling out the paperwork. As he was filling out the papers, Jonathan was overcome with emotion and started to cry. Stephanie asked if she could have a beer and Jonathan told her she could go get one from the refrigerator.
At this point, Stephanie was sitting on the living room couch. The kitchen was located down a hallway off of the living room. To get to this hallway, Stephanie would need to walk behind the couch, in a "very narrow" pathway between the couch and a wall. (Id. at Ex. B2 15.)
Stephanie arose to go to the kitchen, beginning her journey by walking behind the couch. (Id.) As she did so, Jonathan picked up his gun and followed Stephanie behind the couch. His plan was to walk past Stephanie, into the kitchen, and then out the back door into the yard. Once outside, he would feign suicide in an attempt to gain Stephanie's sympathy and receive "comfort" from her. (Id.) Before he walked behind the couch, Jonathan was carrying the gun pointed "downward," but when he walked behind the couch, he picked the gun up, pointing the barrel into the air, to avoid brushing it against the couch. (Id. at Ex. B2 15, 18, 20.)
In the past, Jonathan caught Stephanie having sexual relations with his brother. Afterwards, Jonathan contemplated committing suicide. Stephanie found him near the door leading to the backyard, sobbing, and holding a gun underneath his chin. (Pl.'s Mot. for Summ. J. Ex. B1 7.) Stephanie embraced him and talked with him about their relationship, which comforted Jonathan. (Id. at B1 8.)
At this point, Jonathan was walking a few feet behind Stephanie. (Id. at Ex. B2 20.) He held the gun in one hand, while he looked down and covered his eyes with the other because he was crying. As he was closely following Stephanie, she abruptly stopped, as if to look at something. (Id. at Ex. B2 19.) He did not realize she had stopped walking because his head was down. (Id. at Ex. B2 21.) Jonathan "started to look up and threw [his] arms out" and hit Stephanie with the side of the gun. (Id. at Ex. B2 20.) He looked up and Stephanie "started to turn around and also look to see what just happened." (Id.) Apparently, she saw Jonathan and the gun, because he testified that "she was coming around looking at me," (Id. at Ex. B2 22), and "turning her head towards" him. (Id. at Ex. B3 34.) At this point, the gun was "pointed directly at her." (Id. at Ex. B2 24.) When Jonathan realized where the gun was he "jerked the gun back" to get it away from her "and it went off when [he] jerked it back." (Id.)
Stephanie was shot in the face and she later died. Jonathan claimed that he did not intend to kill Stephanie. (Id. at Ex. B2 34.) He could not explain how or why the gun fired and did not know whether he pulled the gun's trigger. (Id. at Ex. B3 31.)
III. Standing
The main issue in this case, according to the parties, was the extent to which the court could consider Jonathan's prior testimony and conviction from his criminal trial. The court has conducted a thorough and searching review of Georgia case law analyzing this issue. In Georgia, courts have held that a criminal conviction is not "conclusive evidence" that an insured committed an intentional act that would bar coverage under an insurance policy. Continental Cas. Co. v. Parker, 288 S.E.2d 776, 779 (Ga. Ct. App. 1982). The origins of this rule are murky, but it is apparently based on prior precedents which held that an acquittal in a criminal case was not admissible in a later civil suit. See Pierce v. Pierce, 243 S.E.2d 46, 50 (Ga. 1978) (holding that the defendant's acquittal on a child abuse charge in a criminal proceeding was not admissible in a civil proceeding); Powell v. Wiley, 54 S.E. 732, 732 (Ga. 1906) (holding that the defendant's acquittal on an assault charge in a criminal proceeding was not admissible in a civil proceeding). The rule also depends on strict application of the mutuality requirement of the collateral estoppel doctrine, a requirement that has been relaxed by a number of other jurisdictions, but not by Georgia. See Zinger v. Terrell, 985 S.W.2d 737, 740 (Ark. 1999) ("[I]n the vast majority of jurisdictions a judgment of criminal conviction may preclude a defendant from retrying the same issue of his culpability in a subsequent civil complaint."). Complicating matters further, the Georgia courts have been somewhat inconsistent in their application of this rule, appearing to implicitly apply certain exceptions. See Harden v. State Farm Fire & Cas. Co., 605 S.E.2d 37, 38 (Ga. Ct. App. 2004) (holding that evidence of insured's criminal conviction, which was obtained via an Alford guilty plea, "was sufficient to establish a prima facie case that State Farm had no duty under the terms of the policy to provide coverage or a defense [to the insured]"); Tripp v. All State Ins. Co., 584 S.E.2d 692, 694-95 (Ga. Ct. App. 2003) (granting summary judgment for insurer under intentional/criminal acts exclusion because the court "inferred" that the insured aimed a gun at the victim, despite the insured's testimony that the gun had accidentally discharged and that he did not intentionally shoot the victim).
In due course, however, the court has realized that a decision on this issue is unnecessary. Summary judgment must be entered against the Haslups because they do not have standing to contest Allstate's duty to defend or indemnify Jonathan. Alternatively, if the Haslups do have standing to contest the policy, there is an explicit policy exclusion that prevents recovery. Summary judgment is also proper against Jonathan, because by failing to respond to the complaint he has essentially admitted that he intentionally killed Stephanie. Such an intentional act clearly falls under the policy's intended acts exclusion. The court will explain each of these grounds in turn.
Initially, with respect to standing, a court may raise a party's lack of standing sua sponte at any time. "The question of standing is not subject to waiver . . . even if the parties fail to raise the issue." United States v. Hays, 515 U.S. 737, 742 (1995) (quotation marks omitted). "The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of [the jurisdictional] doctrines." Id. (insertion original and quotation marks omitted). "Before rendering a decision . . . every federal court operates under an independent obligation to ensure it is presented with the kind of concrete controversy upon which its constitutional grant of authority is based; and this obligation on the court to examine its own jurisdiction continues at each stage of the proceedings, even if no party raises the jurisdictional issue and both parties are prepared to concede it." Cuban Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1422 (11th Cir. 1995) (quotation marks omitted). The court is therefore well within its authority to raise the Haslups' lack of standing even though neither party has raised the issue.
This is a declaratory judgment action based on diversity jurisdiction. While sitting in diversity, this court must apply state substantive law. Erie R. Co. v. Tomkins, 304 U.S. 64 (1938). In this action, the Haslups contend that Stephanie was not a named insured under the policy. This means that the Haslups are seeking to enforce a contract between Allstate and Jonathan to which they are not a party. "Whether a [party] who is a third-party beneficiary has standing to sue is a question of state law." AT&T Mobility, LLC, v. Nat'l. Assn' for Stock Car Auto Racing, Inc., 494 F.3d 1356, 1360 (11th Cir. 2007). Under Georgia law, a third party has standing to enforce a contract only if it "clearly appear[s] from the contract that it was intended for his benefit [and] [t]he mere fact that a party would benefit from the performance of the agreement is not alone sufficient." Anthony v. Grange Mut. Cas. Co., 487 S.E.2d 389, 391 (Ga. Ct. App. 1997) (quotation marks omitted). Therefore, the Georgia courts have held that a third party does not have standing to contest an insurer's duty to provide coverage to its insured.
A brief summary of several Georgia cases is instructive. In Anthony, a mortgagee was barred from suing an insurer that had provided a homeowners insurance policy to the mortgagor, who was living in the insured home subject to the mortgage. The mortgagee did not have standing to enforce the insurance policy because it was a third party and could not show that the insurance policy was made for its benefit. 487 S.E.2d at 391. Somewhat similarly, in Patriot General Insurance Company v. Millis, 506 S.E.2d 145, 148 (Ga. Ct. App. 1998), the plaintiff, an insurance company that issued an insurance policy to the insured, argued that the trial court had improperly found that another insurer had no duty to provide coverage to the insured under a separate policy. In effect, the plaintiff contended that the other insurer was obligated to provide coverage to the insured and that the other insurer's obligation extinguished the plaintiff's duty to provide coverage. The Georgia Court of Appeals held that the plaintiff did not have standing to contest the trial court's ruling "with regard to [the other insurer's] duty to provide coverage to [the insured]." Id. at 148; see also Am. S. Ins. Co. v. Abbensett, 501 S.E.2d 53, 56 (Ga. Ct. App. 1998) (holding that the plaintiff "has no rights in or to the [insurance] policy, and, as such, it has no standing to contest the trial court's ruling with regard to the [policy's] coverage of [the insured]").
In this case, the Haslups are not insureds under the insurance policy. The insurance policy does not name them as insureds, nor is there any indication that the insurance policy was made for their benefit. They are thus third parties to the contract and have no standing to enforce it. Plaintiff's motion for summary judgment against the Haslups is therefore granted and their cross-motion for summary judgment against plaintiff is denied as moot.
This result is required even though the policy names Stephanie as a named insured. The Haslups have actively contended throughout this litigation that this designation is in error and that Stephanie is actually not a named insured under the policy. According to the Haslups, Stephanie "was never an owner of the property insured by the [p]olicy, had absolutely no insurable interest in the property insured . . . was not a resident of the property insured, [and] had established a separate residence in another county." (Answer ¶ 19.) Thus, she could not be a named insured under the policy. Plaintiff basically conceded this point at oral argument and also did not challenge this assertion in its motion for summary judgment. Therefore, the court will consider that the only named insured under the insurance policy is Jonathan.
Moreover, even if Stephanie should be considered a named insured under the policy, summary judgment against the Haslups is still proper. The policy expressly excludes coverage for "bodily injury to an insured person . . . whenever any benefit of this coverage would accrue directly or indirectly to an insured person." (Pl.'s Mot. for Summ. J. Ex. A2 14.) If Stephanie is considered to be a named insured under the policy, coverage for her death would be excluded. The claim in the underlying case seeks recovery for bodily injury to Stephanie, an insured person, on behalf of Stephanie's estate. If that claim is successful and Allstate is required to indemnify Jonathan, the benefits of the policy would accrue directly to Stephanie's estate, "for the benefit of [her] next of kin." O.C.G.A. § 51-4-5(a). Thus, even if Stephanie is a named insured under the policy, the Haslups' claim is barred and summary judgment against them is proper.
Pursuant to Georgia law, a wrongful death action can only be maintained by certain statutorily-designated parties. Only a surviving spouse, or, if there is no surviving spouse, the decedent's child or children may bring such an action. O.C.G.A. § 51-4-2(a). A parent also may bring a wrongful death action for the death of a child, id. § 51-4-4, provided that the child is under the age of 18. Id. § 19-7-1(c). When no person is entitled to bring a wrongful death action under either § 51-4-2 or § 51-4-4, "the administrator or executor of the decedent may bring an action for and may recover and hold the amount recovered for the benefit of the next of kin." Id. § 51-4-5(a). The underlying wrongful death action in this case is not brought by Stephanie's surviving spouse and Stephanie was over the age of 18. Thus, the wrongful death action is brought pursuant to § 51-4-5, by Stephanie's parents as the representatives of her estate.
The enforcement of the insurance policy between Allstate and Jonathan is therefore a matter solely between those two parties. There is no clear indication in the insurance contract that it was intended to benefit the Haslups. And even though the Haslups might benefit from the enforcement of the insurance contract, "[t]he mere fact that [a party] would benefit from performance of the agreement is not alone sufficient" to confer standing. Anthony, 487 S.E.2d at 391 (second insertion original and quotation marks omitted). Plaintiff's motion for summary judgment must therefore be granted against defendant Jeff Haslup and defendant Janice Haslup. Additionally, the Haslups' motion for summary judgment against Allstate must be denied as moot.
The court is left, therefore, with this declaratory judgment action between Allstate, the insurer, and Jonathan, the insured. The complaint in this case was filed on September 21, 2010. Since that date, Jonathan has not filed an answer to the complaint, made an appearance, or filed any other pleading.
Federal Rule of Civil Procedure 55(a) establishes the procedure for the entry of default. "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." FED. R. CIV. P. 55(a). Although plaintiff has never made a separate motion seeking the entry of default under Rule 55(a), it explicitly contended that Jonathan is in default. (Pl.'s Mot. for Summ. J. 12-13 and 18 (noting that because Jonathan never filed an answer he was in default and that he therefore admitted that "he committed an intentional criminal act and admitt[ed] that Allstate has no duty to provide coverage").)
A court has the power to enter default under Rule 55(a). "The fact that Rule 55(a) gives the clerk authority to enter a default is not a limitation on the power of the court to do so." Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, 10A FEDERAL PRACTICE AND PROCEDURE § 2682, at 19 (3d ed. 1998). In addition to the clerk, "a district judge also possesses the inherent power to enter a default" under Rule 55(a). City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011); Fisher v. Taylor, 1 F.R.D. 448, 448 (E.D. Tenn. 1940) (holding that "the court has power to enter an order of default and Rule 55 is not a limitation thereof"). Because plaintiff contends in its motion for summary judgment that Jonathan has failed to answer or otherwise defend, the court construes the summary judgment motion as also seeking the entry of default against Jonathan. Cf. Trustees of Local 813 I.B.T. Ins. Trust v. Chinatown Carting Corp., No. 1:06-CV-05967-NGG, 2008 WL 5111108, at *3 (E.D.N.Y. Dec. 4, 2008) (entering default under Rule 55(a) against a defendant who failed to answer or appear even though the plaintiff moved only for summary judgment); Sys. Indus., Inc. v. Han, 105 F.R.D. 72, 74 and n.1 (E.D. Pa. 1985), order vacated on other grounds by No. 84-5457, 1986 WL 10551 (E.D. Pa. Sept. 15, 1986) (entering default under Rule 55(a) even though the "plaintiff has not filed any application with the Clerk for entry of a default" but had instead filed only a motion seeking default judgment under Rule 55(b)).
The court notes that several district courts have concluded that a court can enter default under Rule 55(a) sua sponte against a litigant who has failed to answer the complaint or otherwise defend a pending action. See Singapore Tong Teik PTE Ltd. v. Coppola, No. 04-CV-3440-FB-RLM, 2007 WL 2375796, at *4 (E.D.N.Y. Aug. 17, 2007) (entering default under Rule 55(a) against the defendant even though "there is no such [motion for default by the plaintiff] pending before the Court"); Singh v. Jackson, No. 86 Civ. 2668 (MJL), 1986 WL 12514, at *1 (S.D.N.Y. Oct. 31, 1986) (entering default against the defendant even though the plaintiffs did not request the entry of default because a court has "inherent power to manage its caseload" and thus may "sua sponte enter a default judgment against a litigant who has failed to prosecute his case with reasonable diligence and who has not complied with the Court's rules of procedure"). Since plaintiff's motion for summary judgment implicitly requests the entry of default, it is unnecessary for the court to enter default sua sponte in this case. The fact that other courts have felt justified in doing so, however, confirms the propriety of the court's action. --------
Based on these authorities, the court will enter default against Jonathan under Rule 55(a). Jonathan's failure to plead or otherwise defend in this action is clearly demonstrated by the record. Jonathan was served with the complaint. A proof of service signed by the Chief Deputy of the Macon County Sheriff's Department attests that Jonathan was served at the Macon State Prison on November 9, 2010. Once he was served with the complaint, Jonathan was required to file an answer within 21 days. FED. R. CIV. P. 12(a)(1)(A)(i). He has never filed an answer in this action. Indeed, he has not made an appearance or filed a response to any motion. Based on these facts, the court determines that the record conclusively shows that Jonathan has failed to plead or otherwise defend this action. The court therefore enters default against him pursuant to Rule 55(a).
Thus, Jonathan is now in default. "A defendant, by his default, admits the plaintiff's well-pleaded allegations of fact . . ." Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009) (quotation marks omitted). The complaint alleges that Jonathan "intentionally shot his estranged wife, Stephanie Hart, in the head with a rifle, and Stephanie Hart died as a result of the gun shot." (Compl. ¶ 11.) This well-pleaded allegation is deemed admitted due to Jonathan's default. Thus, Jonathan admits that he intentionally shot Stephanie and this intentional conduct falls squarely under the intended injury exclusion contained in the insurance policy. (See Pl.'s Mot. for Summ. J. Ex. A2 14 (stating that the insurance policy does not cover bodily injury "intended by, or which may reasonably be expected to result from the intentional act or acts or omissions of, any insured person . . .").) Pursuant to this exclusion, plaintiff has no duty to defend or indemnify Jonathan for the intentional shooting of Stephanie. It is therefore clear, as a matter of law, that plaintiff is entitled to summary judgment against Jonathan and its motion seeking summary judgment is granted.
For the foregoing reasons, default under Rule 55(a) is hereby ENTERED against defendant Jonathan Hart. In light of that default, plaintiff's "Motion for Summary Judgment" [17] is hereby GRANTED. Plaintiff has no duty to defend or indemnify under the insurance policy. Additionally, the "Cross Motion for Summary Judgment" [18] of Jeff and Janice Haslup is hereby DENIED as moot. The clerk is hereby DIRECTED to close this case.
IT IS SO ORDERED, this 12th day of January, 2012.
/s/_________
WILLIAM C. O'KELLEY
Senior united States District Judge