United States District Court, E.D. Michigan, Southern Division
JUDGMENT [#27][#28]ANDMOTIONFORMODIFICATIONOF SCHEDULING
Gershwin A. Drain United States District Court Judge
before the Court are Plaintiff's Motions for Default
Judgment and Motion to Extend the Scheduling Order. Dkt. Nos.
27, 28, 32. Plaintiff moves this Court to default Defendants
Kimberly Rogier and Joshua Vath for failing to file answers
to Plaintiff's complaint. Plaintiff and Third Party
Defendants also move this Court to Extend the Scheduling
Order by modifying the dispositive motion cutoff and trial
dates. For the reasons discussed below, this Court will grant
about August 18, 2016, Defendant Joshua Vath was driving a
Chevrolet Malibu that he rear-ended into Defendant Carolyn
Witchner's car. Dkt. No. 1, pg. 3 (Pg. ID 3). The
Chevrolet Malibu was owned by Vath's mother, Kimberly
Rogier. Id. at pg. 4 (Pg. ID 4). After the accident,
Witchner sought No-Fault benefits for the injuries that she
sustained in the accident. Id. at pg. 3 (Pg. ID 3).
Plaintiff Citizens Insurance Company of the Midwest insured
the Chevrolet Malibu under the insured Rogier. Id.
at pg. 4 (Pg. ID 4). Plaintiff's insurance policy states
that it does not provide “coverage for any insured who
has made fraudulent statements or engaged in fraudulent
conduct in obtaining or maintaining this policy or in
connection with any accident or loss for which coverage is
sought under this policy.” Id. at pg. 7 (Pg.
ID 7). Vath was never listed as an insured on the policy.
See Id. Rogier never informed Plaintiff that her
son, Vath, was the primary operator of the Chevrolet Malibu.
Id. at pg. 5 (Pg. ID 5). Rogier also did not inform
Plaintiff that the Chevrolet Malibu was not garaged at the
location stated on the insurance policy-the car was garaged
at Vath's residence and not Rogier's residence.
Id. On June 1, 2017, Plaintiff wrote Rogier that her
failures to disclose were material misrepresentations because
the issuance of the policy would have been different had
Rogier made all required disclosures. See Dkt. No.
1-9, pg. 3 (Pg. ID 130). Plaintiff stated in the letter that
it was rescinding the policy, effective June 2, 2013.
Id. Plaintiff refunded Rogier $22, 987-the amount of
Rogier's insurance policy premiums for the period of June
2, 2013 through September 9, 2016. Id.
filed the present action on September 14, 2017. Dkt. No. 1.
Plaintiff alleged that Defendant's misrepresentations
entitle it to void the insurance policy with Rogier and not
pay claims for No-Fault benefits. Id. at pg. 6 (Pg.
ID 6). Plaintiff claimed that it is entitled to a declaration
that it is not responsible for payment of past, present, and
future No-Fault benefits incurred by and/or on behalf of
Defendant Witchner. Id. at pg. 9 (Pg. ID 9).
Plaintiff also argued it is entitled to a determination that
it is not under an obligation to Defendant Vath or Rogier
should litigation arise out of the ownership/operation of the
Chevrolet Malibu. Id.
was effected on Defendant Rogier on September 19, 2017. Dkt.
No. 11. Service was effected on Defendant Vath on October 5,
2017. Dkt. No. 9. Neither party filed an answer to
Plaintiff's complaint. On December 4, 2017, Plaintiff
requested an entry of default as to Rogier and Vath. Dkt. Nos
18, 19. The clerk entered default against Rogier and Vath on
December 4, 2017. Dkt. Nos. 20, 21. On April 2, 2018,
Plaintiff filed its Motions for Default Judgment against
Rogier and Vath. Dkt. Nos. 27, 28. On May 7, 2018, Defendant
Witchner filed responses to the default motions past the
filing deadline. Dkt. Nos. 37, 38. Plaintiff filed a reply on
May 11, 2018, arguing that Witchner lacks standing to object
to the entry of default judgments against Rogier and Vath.
Dkt. No. 39 Plaintiff and Third Party Defendants Hylant
Group, Inc. and Kristin Osentoski filed a Motion for
Modification of Scheduling Order on April 13, 2018. No.
response was filed to the request to modify the scheduling
to Fed.R.Civ.P. 55(a), “[w]hen 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). A default judgment is
governed by Fed.R.Civ.P. 55(b)(2). “An entry of default
and a default judgment are distinct concepts which must be
treated separately.” Northland Ins. Co. v. Cailu
Title Corp., 204 F.R.D. 327, 330 (W.D. Mich. 2000);
see also Ramada Franchise Sys. Inc., 220 F.R.D. 303,
305 (N.D. Ohio 2004) (“Entry of a default . . . is a
prerequisite to entry of a default judgment under Rule
55(b).”). Upon entry of default, the well-pleaded
allegations of the complaint relating to a defendant's
liability are taken as true, with the exception of the
allegations as to the amount of damages. See Kelley v.
Carr, 567 F.Supp. 831, 840 (W.D. Mich. 1983).
asserts that it is entitled to default judgment against
Defendants Rogier and Vath for failure to respond to its
complaint. Plaintiff argues that Defendant Witchner does not
have standing to object to the default motions pending
against Rogier and Vath. Further, in its complaint, Plaintiff
asserts that it is entitled to relief because Rogier made
material misrepresentations on her insurance policy. Dkt. No.
1, pg. 6 (Pg. ID 6). Rogier failed to disclose that her son,
Defendant Vath, was an operator of the Chevrolet Malibu, and
failed to disclose the correct location of where the car was
garaged. Id. Defendants assert that any
non-disclosures were not material. Dkt. No. 37, pg. 12 (Pg.
Rule of Civil Procedure states that “[w]hen a party
against whom a default judgment . . . is sought has failed to
plead or otherwise defend . . . the clerk must enter the
party's default.” Fed.R.Civ.P. 55(a). In this case,
the parties against whom the default judgment is
sought-Rogier and Vath-failed to respond in this action.
Therefore, default judgment is appropriate against them.
were also entitled to void its insurance policy with Rogier.
Under Michigan law, the insurer is entitled to rescind an
insurance policy if there is a material misrepresentation
made in an application for No-Fault insurance.
Auto-Owners Ins. Co. v. Johnson, 530 N.W.2d 485, 487
(Mich. Ct. App. 1995). A misrepresentation is material if
communication of it would have “substantially
increase[ed] the chances of loss insured against so as to
bring about a rejection of the risk or the charging of an
increased premium.” Oade v. Jackson Nat'l Life
Ins. Co. of Mich., 632 N.W.2d 126, 131 (Mich. 2001).
Plaintiff brought evidence to show that the policy it issued
to Rogier would have changed if Rogier had made all the
required disclosures. In its letter sent to Rogier on June 1,
2017, Plaintiff stated that the misrepresentations made
impacted the policy that it gave to Rogier. Dkt. No. 1-9, pg.
3 (Pg. ID 130). Additionally, Plaintiff stated that it was
rescinding the policy and issued a refund to Rogier.
Id. The letter stated that ...