Travelers Cas. & Sur. Co. of Am. v. Perlman
Travelers Cas. & Sur. Co. of Am. v. Perlman
Opinion of the Court
Plaintiff Travelers Casualty and Surety Company of America filed suit against Defendant Jeffrey L. Perlman, Esq., and his clients,
I. FACTUAL AND PROCEDURAL BACKGROUND
The complaint alleges the following facts, which are assumed to be true for purposes of the motion for default judgment.
However, when Perlman applied for the Policies, he knew that judgment had been entered against his clients David and Carol Gill, Jerry Mendez, and Yemarie Feliciano in two cases because he failed to file a complaint on their behalf within the time required by the court.
Additionally, Perlman filed a Supplemental Statement to his application for the 2015 Policy in which he admitted only one disciplinary complaint made against him, despite knowledge of at least one other complaint asserted against him by Mr. Abraham.
Had Perlman disclosed these facts honestly in his applications for the Policies, Travelers has asserted that it would not have issued either the 2014 or the 2015 Policy, and therefore filed this declaratory judgment action.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 55(b)(2) authorizes a court to enter default judgment against a properly served defendant who fails to file a timely responsive pleading.
III. DISCUSSION
A. Legitimate Cause of Action
Travelers seeks rescission of the 2014 and 2015 Policies, as well as a declaration that, in light of the Policies' rescission, Travelers has no obligation to defend or indemnify Perlman in connection with any underlying claim or lawsuit asserted *933against him by his clients.
Here, accepting the facts in the complaint as true, Travelers has satisfied all elements necessary for the rescission of the underlying Policies and a declaration that they are void. Perlman knowingly misrepresented, and failed to disclose, disciplinary complaints filed against him as well as errors he made in several of his client's cases on which claims against him could be made. These misrepresentations were material, and Travelers asserts that it would not have issued either the 2014 or 2015 policy had it known the true facts regarding the incidents, acts, errors, or omissions that could result in claims against Perlman.
B. The Chamberlain Factors
The Chamberlain factors support entry of default judgment in this case. First, Travelers will be prejudiced if default judgment is denied. Although all Defendants were properly served with both the summons and complaint, they have not entered appearances in this action. Therefore, "denying the motion will prejudice [Travelers] because [it] has 'no other means of vindicating his claims against' Defendant[s]."
Second, because the remaining Defendants have not filed an answer, the Court cannot conclude that they have a litigable defense,
Third, culpable conduct of Defendants led to the default. "[T]he standard for 'culpable conduct' in this Circuit is the 'willfulness' or 'bad faith' of a non-responding defendant."
IV. CONCLUSION
Based upon the unchallenged factual allegations of the complaint which establish legitimate causes of action, and the evaluation of the Chamberlain factors, this Court holds that Travelers is entitled to the requested declaratory relief. An appropriate Order follows.
Perlman's clients who are defendants in this case include Omar Sharif, Braheem Pittman, David Gill, Carol Gill, Jerry Mendez, and Yemarie Feliciano. Claims against three other clients of Perlman-Judith Spiller, Carolyn Pugh, and Johnnie Mebane-have been dismissed pursuant to stipulation whereby they agreed to be bound by any judgment for rescission of the insurance policy and any declaration that Travelers has no obligation to defend or indemnify Perlman.
See DIRECTTV, Inc. v. Pepe ,
Compl. [Doc. No. 1] ¶ 98.
Id. at ¶ 40.
Id. at ¶ 108.
Id. at ¶ 113.
Id. at ¶ 115.
Id. at ¶ 101, 111.
The only Defendants who did appear in this action have been dismissed pursuant to stipulation.
Aff. of Service for Jeffrey Perlman [Doc. No. 32]; Aff. of Service for Omar Sharif [Doc. No. 27]; Aff. of Service for Braheem Pittman [Doc. No. 6]; Aff. of Service for David Gill [Doc. No. 14]; Aff. of Service for Carol Gill [Doc. No. 15]; Aff. of Service for Jerry Mendez [Doc. No. 11]; Aff. of Service for Yemarie Feliciano [Doc. No. 12].
See Anchorage Assocs. v. V.I. Bd. of Tax Review ,
Phoenix Ins. Co. v. Small ,
Chamberlain v. Giampapa ,
In the alternative, Travelers seeks a declaration that the Policies do not provide coverage for the underlying claims based on the terms and conditions of the Policies. The Court will not address this alternative remedy sought, because the Court finds that Travelers has stated a legitimate cause of action for rescission of the Policies and a declaration that Travelers has no obligation to defend or indemnify Perlman in connection with the claims asserted against him by his clients.
Northwestern Mutual Life Insurance Co. v. Babayan,
N.Y. Life Ins. Co. v. Johnson,
Harty v. Azad Holdings, LLC, No. 14-6566,
Hill v. Williamsport Police Dep't. ,
Joe Hand Promotions, Inc. v. Yakubets ,
Hritz v. Woma Corp. ,
Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance Club, Inc. ,
Einhorn ,
Einhorn ,
Reference
- Full Case Name
- TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA v. Jeffrey L. PERLMAN
- Cited By
- 9 cases
- Status
- Published