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Nevada General Insurance Co. v. Anaya

United States District Court, D. New Mexico

June 21, 2018

NEVADA GENERAL INSURANCE CO., Plaintiff,
v.
ARTHUR ANAYA, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO, SENIOR UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Nevada General's Motion for Default Judgment Against the Defendant Abelino Romero and Motion to Dismiss [Doc. 70] and Nevada General's Amended Notice that it will not Seek Another Motion for Default Judgment Against Defendants Arthur Anaya, Kevin Baca, Denise Hinkle, Nancy Hissa, Theodore Hissa, Ashley Ramirez, and Daniel Romero [Doc. 77].

         Having considered Nevada General's Motion and Notice and the relevant law, and otherwise being fully advised in the premises, the Court GRANTS the Motion and orders default judgment against Defendants Arthur Anaya, Kevin Baca, Denise Hinkle, Nancy Hissa, Theodore Hissa, Ashley Ramirez, Daniel Romero, and Abelino Romero.

         I. BACKGROUND

         Plaintiff Nevada General Insurance Company (“Nevada General”) is a foreign insurance company with citizenship in the State of Nevada licensed to do business in the State of New Mexico. [Doc. 7; Doc. 57] Defendants Arthur Anaya, Kevin Baca, Denise Hinkle, Nancy Hissa, Theodore Hissa, Ashley Ramirez, Daniel Romero (the Group Defendants) and Abelino Romero (Romero)[1] are citizens of the State of New Mexico. [Doc. 57]

         Nevada General brought a declaratory judgment action pursuant to 28 U.S.C. Section 2201 for the purpose of determining whether it has a duty to defend or indemnify Romero for damages arising out of the “Incident, ” a five-car collision involving Romero's 2000 Chevrolet Malibu. At issue is Nevada General policy number 0295010, which Nevada General issued to Romero for and in consideration of the payment of an insurance premium, which provided coverage on the 2000 Chevrolet Malibu that Abelino Romero's brother, Daniel Romero, was driving at the time of the Incident.

         Specifically, Nevada General requests the following declarations:

that The Policy is rescinded as a result of Defendant Abelino Romero's material misrepresentations, and therefore coverage is not available under The Policy for The Incident[;]
that Defendant Abelino Romero has breached The Policy terms due to his failure to cooperate, and therefore coverage is not available under The Policy for The Incident[;]
that The Incident is not an accident as defined by the Policy and therefore Liability Coverage is not available under The Policy for The Incident[;]
that Defendant Daniel Romero is not an insured person as defined by the Policy and therefore Liability Coverage is not available under The Policy for The Incident[;]
that Defendant Daniel Romero's conduct at the time of the Incident was intentional or expected to result in damage, and therefore coverage is excluded under The Policy for The Incident[;]
that Defendant Daniel Romero was committing a crime at the time of the Incident, and therefore coverage is excluded under The Policy for The Incident[;]
that coverage for punitive or exemplary damage is excluded under The Policy for The Incident[;]
that coverage for uninsured motorist coverage for occupants of the 2000 Chevrolet Malibu is specifically excluded under The Policy for The Incident[;]
that Defendant Daniel Romero is not an insured person pursuant to New Mexico law and therefore Coverage is not available under The Policy for The Incident[;]
In the Alternative, . . . that should any Defendant in this matter be eligible to present a claim for uninsured/undersinsured motorist coverage said claim would be precluded or offset in the event the liability policy limits have been exhausted.

[Doc. 7, ¶¶ 75-84]

         The First Amended Complaint was filed on March 10, 2015. [Doc. 7] Defendants Kevin Baca, Denise Hinkle, Nancy Hissa, and Theodore Hissa, were served on March 17, 2015. [Doc. 13-16] Defendant Daniel Romero was served on March 25, 2015, and Ashley Ramirez and Arthur Anaya were served on June 15, 2015. [Doc. 18, 22-23] When they failed to answer the First Amended Complaint, the Clerk entered default against the Group Defendants. [Doc. 46] See Fed. R. Civ. P. 55(a) (pertaining to entry of default by the Clerk).

         The return of service indicates that Nevada General served Romero certified mail, return receipt on March 16, 2015. [Doc. 11] Romero, acting pro se, responded to the First Amended Complaint on March 31, 2015. [Doc. 17] In a handwritten document titled “Answer, ” Romero stated that he “woke up from taking a nap, later on learning that my younger brother Daniel Romero and his girlfriend Michelle Baca took [his] car without permission.” [Doc. 17] Romero went on,

I received a call from my other brother stating that he seen a car just like mine in a automobile accident at the intersection of Avenida Ce[]sar Chavez and I25 on the exit. At that time my older brother took me to that location where we learned that it was in fact my vehicle that was in a accident. Bruce S. McDonald Law Firm contacted me by mail and they called me, telling me that I needed to go in and make a statement for them. I explained to the woman from the law firm that I have [p]sychological issues that prevent me from going into places that a[ ]lot of people are around and she said she would try and set up a phone conference with me. The law firm contacted me again and I flipped out because of my PTSD and panic disorders and hung up on her. I received this letter and now I'm answering it.

[Doc. 17] The document was filed in the docket as an answer. [Doc. 17]

         On October 27, 2015, Nevada General filed a Joint Status Report and Provisional Discovery Plan [Doc. 27] in which it stated that “Abelino Romero is appearing in this action pro se; Plaintiff's counsel attempted to reach him at the last known telephone number and was informed by the person answering that it is not a number for Abelino Romero.” [Doc. 27] On February 17, 2016, Nevada General filed another status report in which it again reported that Abelino Romero could not be contacted at the last known number. [Doc. 31] In August, 2016, the Clerk's office entered defaults as the Group Defendants. [Doc. 46] A copy of the entry of default was mailed to Abelino Romero and returned as undeliverable. [Doc. 53] On September 20, 2016, this Court ordered Nevada General to demonstrate facts supporting its contention that the parties are completely diverse as necessary for this Court to exercise its jurisdiction under 28 U.S.C. § 1332. [Doc. 47] A copy of this Order was mailed to Abelino Romero by the Court and returned as undeliverable. [Doc. 48] An order entered by this Court on January 24, 2017 was also mailed to Romero and returned as undeliverable. [Doc. 57; Doc. 58] Subsequent ...


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