United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
before the Court is the Second Motion for Default Judgment
(ECF No. 49) filed on February 5, 2018 by Plaintiff, Alfa
Vision Insurance Company (“Alfa”), and the
Amended Second Motion for Default Judgment (ECF No. 53) filed
by Alfa on February 22, 2018. The motions were referred to
the undersigned on February 22 and 28, 2018, respectively,
and they are ready for report and recommendation.
filed its Complaint for Declaratory Judgment on April 26,
2017. (ECF No. 1). As the complaint improperly included
information that should have been redacted under Fed.R.Civ.P.
5.2, the Court entered an Order (ECF No. 5) striking the
complaint and directing the Plaintiff to file an amended
complaint, properly redacted in compliance with Rule 5.2.
Alfa filed its Amended Complaint for Declaratory Judgment
(ECF No. 7) on April 27, 2017.
an Alabama corporation authorized to do business in Arkansas,
alleges that it issued an Arkansas private passenger
automobile policy of insurance, Policy No. 11-03-007659951,
to its named insured, Separate Defendant Adele Amaya-Mata
(“Mata”), with a policy period of July 7, 2016
through January 7, 2017, insuring a 1994 Honda Accord LX, VIN
No. J8CD5636RCO94816. (ECF No. 7, ¶ 12). Alfa alleges
that on September 3, 2016 Mata's son, Separate Defendant
German Mora (“Mora”), who was then a minor and
has since reached the age of majority, and who was then a
resident of Mata's household, was involved in a motor
vehicle accident while driving the insured vehicle.
(Id., ¶ 13). Mora, it is alleged, did not have
a valid, in force, operator's license or permit at the
time of the motor vehicle accident. (Id., ¶
14). The motor vehicle accident occurred when Mora, who was
fleeing from an Arkansas State Police Trooper on Midland
Boulevard in Fort Smith, Sebastian County, Arkansas, at a
high rate of speed, lost control of the insured vehicle and
crashed into multiple other vehicles, as well as a home.
(Id., ¶ 15). As a result of the motor vehicle
accident, damage was caused to the insured vehicle, as well
as to motor vehicles owned by Separate Defendant Federico
Alvarado (“Alvarado”), Separate Defendant
Valentino Uribe (“Uribe”), and Separate Defendant
Christian Moya (“Moya”). (Id., ¶
was also done to a home owned by Separate Defendant Claudia
Salinas (“Salinas”) located at 4239 Wirsing
Avenue, Fort Smith, Arkansas. (Id., ¶ 17).
Salinas and G. A., a minor, were injured when the insured
vehicle collided into the vehicles of Alvarado, Uribe and
Moya, causing them to impact Salinas' home, resulting in
interior damage to the home, including the room in which
Salinas and G. A. were sleeping. (Id., ¶ 18).
Separate Defendant O. M. and Separate Defendant Yair Garza,
deceased, were passengers in the insured vehicle at the time
of the accident, and they suffered injuries and underwent
medical treatment, resulting in medical bills being incurred.
(Id., ¶¶ 19, 20).
on exclusionary language contained in the subject policy of
insurance, Alfa contends there is no coverage under its
policy of insurance issued to Mata for any bodily injury or
property damage proximately caused by the motor vehicle
accident. (Id., ¶ 21). More specifically, Alfa
contends that Mora was not listed as a driver or operator on
Mata's application for the policy (Id., ¶
23), and that Mora was operating the insured vehicle at the
time of the accident without a valid, in force,
operator's license or permit and, per the terms of the
policy, he had no reasonable belief of entitlement to do so
(Id., ¶ 24).
to A.C.A. §§ 16-111-101, et. seq., and
Fed.R.Civ.P. 57, Alfa seeks a declaratory judgment that there
is no coverage under its policy of insurance for any bodily
injury or property damage sustained by any party arising out
of the September 3, 2016 motor vehicle accident, and Alfa
further seeks a declaratory judgment that there is no duty on
its part to provide a defense and/or indemnity to any party,
including but not limited to, Mora and/or Mata, in the event
any civil suit is filed against them. (Id., ¶
Service of process was obtained on the Defendants as follows:
Mata was served on May 9, 2017. (ECF No. 9).
Separate Defendant Castrulo Robles was served on May 9, 2017.
(ECF No's. 10, 11).
Moya was served on May 9, 2017. (ECF No. 12).
Salinas was served on May 9, 2017. (ECF No's. ...