19 Fla. L. Weekly Supp. 359a
Online Reference: FLWSUPP 1905DENIInsurance — Personal injury protection — Declaratory judgments — Coverage — Default final judgment is entered finding that insurer has no duty to afford PIP, bodily injury liability or property damage coverage to insured or third party claimants and no duty to provide insured with defense to any litigation or claims relating to three accidents where insured materially breached policy by failing to cooperate with insurer during its investigation of accidents
MGA INSURANCE COMPANY, INC., Plaintiff, v. RAYDEL DENIA, an individual; GLEYDIS BRACHES, an individual; ERNESTO GUERRA-PEREZ, an individual; DAYANA PEREZ, an individual; ALEJANDRO ULABARRO, an individual; MARLENE DIEZ, an individual; BRENDA TORRES, an individual; and MAILYN MIRANDA, an individual; Defendants. Circuit Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 10-CA-004883. November 23, 2011. Honorable William P. Levens, Judge. Counsel: Chad C. Guzzo, Masten, Lyerly, Peterson & Denbo, LLC, Tampa, for Plaintiff. Raydel Denia, Gleydis Braches, Ernesto Guerra-Perez, Dayana Perez, Alejandro Ulabarro, Marlene Diez, Brenda Torres, Mailyn Miranda, pro se Defendants.
FINAL JUDGMENT IN FAVOR OF PETITIONER
THIS CAUSE, having come for consideration upon Petitioner’s Motion for Entry of Final Judgment After Default, and the Court being fully advised in the premise finds as follows:
UNDISPUTED FACTS
1. MGA INSURANCE COMPANY, INC. filed the subject action for declaratory relief on March 3, 2010.
2. Respondents, RAYDEL DENIA, GLEYDIS BRACHES, ERNESTO GUERRA-PEREZ, DAYANA PEREZ, ALEJANDRO ULABARRO, MARLENE DIEZ, BRENDA TORRES, and MAILYN MIRANDA (hereinafter “DEFAULT RESPONDENTS”), were each served with Petitioner’s Complaint for Declaratory Relief via personal service or through service by publication.
3. Each of the DEFAULT RESPONDENTS: (1) have not filed a response with the Clerk, (2) have not served a response upon the Petitioner, (3) have not made entry of appearance in this matter, and (4) have not otherwise responded to the civil action instituted against them by Petitioner.
4. Further, each of the DEFAULT RESPONDENTS have failed to undertake a defense in this matter.
ANALYSIS
5. When a party does not respond to a served Complaint and ignores a duly issued and properly served Notice of Action, a default judgment is an appropriate recourse.
6. If a party does not attempt to defend an action, a Court must enter a default judgment against the party as the default is the only avenue available to conclude the action. Donohue v. Brightman, 939 So. 2d 1162 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2661a](When no answer or Motion to Set Aside the Default has been filed, then the court must make an entry for final judgment in the Plaintiff’s favor.).
7. Accordingly, when a party is in default, the factual allegations of a complaint, seeking legal or equitable relief, are taken as true. See State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So. 2d 1069, 1072 (Fla. 4th DCA 2001) [27 Fla. L. Weekly D44a](When a default is entered, the defaulting party admits all well-pled factual allegations of the complaint.).
8. Moreover, it has been held that a claimant is bound by the terms of an insurance policy, to which he is not a party, if he is making a claim under that policy. DC Health & Rehab Center, Inc., a/a/o Hilda Bolanos v. State Farm Fire and Cas. Co., 15 Fla. L. Weekly Supp. 1199a (Fla. Miami-Dade Cty. Ct. Oct. 2, 2008)
RULING
9. Since the factual allegations of the subject Complaint for Declaratory Relief are deemed to be true, Respondent, RAYDEL DENIA, materially breached the subject insurance policy issued by MGA by failing to cooperate with MGA during its investigations of the subject April 13, 2009 (claim number: FL-236297); May 18, 2009 (claim number: FL-239563); and July 29, 2009 (claim number: FL-246761) automobile accidents and related claims.
10. RAYDEL DENIA’s material breach of the subject policy of insurance prevented MGA INSURANCE COMPANY, INC. from obtaining material information that would allow it to fully and properly assess first party and potential third-party claims for benefits in regards to each of the aforementioned automobile accidents. This has caused MGA INSURANCE COMPANY to be significantly prejudiced in its ability to assess its obligations under the subject policy of insurance in regards to each of the aforementioned automobile accidents.
11. Because RAYDEL DENIA’s materially breached the terms and conditions of the subject insurance policy in regards to each of the three aforementioned automobile accidents and related claims:
a. MGA INSURANCE COMPANY, INC. has neither the duty nor the obligation to afford bodily injury liability and property damage coverage to RAYDEL DENIA or any third party claimants, including but not limited to GLEYDIS BRACHES; ERNESTO GUERRA-PEREZ; DAYANA PEREZ; ALEJANDRO ULABARRO; MARLENE DIEZ; BRENDA TORRES; and MAILYN MIRANDA, under the subject insurance policy for any of the three accidents specified above;
b. MGA INSURANCE COMPANY, INC. has no duty or obligation to provide RAYDEL DENIA with a defense to any litigation/claims resulting from any of the three accidents specified above; and
c. MGA INSURANCE COMPANY, INC. has neither the duty nor the obligation to afford Personal Injury Protection coverage to anyone under the subject policy for any of the three accidents specified above.
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