IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

FIRST MERCURY INSURANCE 

COMPANY, 

 Plaintiff, 

 v. 

ELITE EXTERIORS, LLC and JOSE 

FELIPE POMAQUIZA, 

 Defendants. 

 No. 20-cv-01905 

 Judge John F. Kness 

 

ORDER 

 Plaintiff’s motion for default judgment [20] as to Defendant Elite Exteriors, 

LLC is granted. Final judgment is entered in favor of Plaintiff First Mercury Insurance Company and against Defendant Elite Exteriors, LLC. See accompanying Statement for details. Enter separate final judgment order. On January 7, 2021, Plaintiff 

and Defendant Pomaquiza filed a jointly signed “Notice of Dismissal” [37] explaining 

that they jointly stipulate to the dismissal of this action without prejudice. Accordingly, the case is dismissed as to Defendant Pomaquiza without prejudice in accordance with the terms of the parties’ stipulation and by operation of Rule 41(a)(1)(A)(ii) 

of the Federal Rules of Civil Procedure. See Nelson v. Napolitano, 657 F.3d 586, 587 

(7th Cir. 2011) (Rule 41(a)(1)(A) notice of dismissal “is self-executing and effective 

without further action from the court”). Civil case terminated. 

STATEMENT 

Background 

 Plaintiff First Mercury Insurance Company, an insurer, seeks a declaration 

that it has neither a duty to defend nor to indemnify Defendant Elite Exteriors, LLC 

(“Elite”) in an underlying state court action. Plaintiff filed this declaratory judgment 

action on March 20, 2020. Dkt. 1. On August 25, 2020, Plaintiff moved for entry of 

default against Elite under Rule 55(a) of the Federal Rules of Civil Procedure. Dkt. 

16. Because Elite never filed an answer or otherwise responded to the complaint, the 

Court entered a default on August 27, 2020. Dkt. 17. On September 10, 2020, Plaintiff 

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filed the present motion for default judgment. Dkt. 20. The Court ordered Plaintiff to 

serve copies of the motion for default judgment on Elite and to file proof of service, 

which Plaintiff did on October 27, 2020. Dkt. 23. 

 Shortly thereafter, on November 3, 2020, Defendant Elite appeared in this action for the first time moved to vacate the default. Dkt. 24, 25. As discussed in open 

court at the status hearing on November 24, 2020, however, Defendant Elite voluntarily withdrew that motion. Dkt. 32. The Court then set a briefing schedule on Plaintiff’s motion for default judgment. Id. 

 Rather than filing a response brief in opposition to Plaintiff’s motion for default 

judgment, Elite filed a “Memorandum to Stay Default and to Resolve Fees and Costs,” 

which it purported to submit “in conjunction with its Motion to Vacate.” Dkt. 33. By 

that point, however, Elite had already voluntarily withdrawn its motion to vacate, as 

described above. Accordingly, the Court will disregard any arguments in Elite’s memorandum that purport to support a motion to vacate, as no such motion was properly 

before the Court at the time the memorandum was filed. Plaintiff’s motion for default 

judgment is now fully briefed and ready for the Court’s review. 

Legal Standard 

 

Rule 12(a) of the Federal Rules of Civil Procedure generally requires a defendant to file an answer within 21 days after the service of the summons and complaint. 

The failure to do so may result in the defendant’s default under Rule 55(a). When 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). An entry of default must precede a 

default judgment. See Fed. R. Civ. P. 55(b). Upon the entry of default, the “well-pled 

allegations of the complaint relating to liability are taken as true. . . .” Wehrs v. Wells, 

688 F.3d 886, 892 (7th Cir. 2012) (citing United States v. Di Mucci, 879 F.2d 1488, 

1497 (7th Cir. 1989)); Fed. R. Civ. P. 8(b)(6) (“An allegation—other than one relating 

to the amount of damages—is admitted if a responsive pleading is required and the 

allegation is not denied”).1 Entry of default judgment is left to the sound discretion of 

the district court. See Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 

F.2d 1319, 1322 (7th Cir. 1983); see also C.K.S. Eng’rs, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1206 (7th Cir. 1984) (although the law favors trial on the 

                                                             1 A motion for default judgment ordinarily cannot be resolved without a hearing where 

the moving party seeks damages that are not readily susceptible of quantification through 

review of the written submissions. United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir. 

1989). In this case, however, Plaintiff does not seek damages—only a declaration of rights. 

Accordingly, the motion for default judgment can be resolved without the need to hold a hearing. 

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merits, these considerations must be balanced against the need to promote efficient 

litigation and to protect the interests of all litigants). 

Discussion 

 Defendant Elite failed to file an answer within 21 days of service of the complaint and is in default. Although Elite eventually appeared in the action, see Dkt. 

24, and filed a motion to vacate the default, see Dkt. 25, it has since voluntarily withdrawn that motion. Dkt. 32. As a result, Elite remains in default, and the Court must 

accept as true the well-pleaded allegations of Plaintiff’s complaint concerning liability. See Wehrs, 688 F.3d at 892. 

 Plaintiff alleges that, on September 3, 2019, Jose Pomaquiza, a now-dismissed 

Defendant in this action, filed a lawsuit against Elite in the Circuit Court of Cook 

County, Illinois. Dkt 1, Complaint (“Compl.”) ¶ 13. In that underlying action, Pomaquiza asserts claims for negligence and premises liability stemming from a July 2018 

workplace accident in which Pomaquiza allegedly suffered “severe and permanent 

injuries” after falling from a roof at a construction site managed by Elite. Id. ¶¶ 14, 

22. At the time of the accident, Pomaquiza was an employee of Arizaga Construction, 

Inc. (“Arizaga”). Id. ¶ 42. Plaintiff alleges that Arizaga is “the same entity” as N Castro, Inc. (“N Castro”), a subcontractor with whom Elite had entered into a subcontract 

agreement to perform work at the construction site. Id. ¶¶ 43, 46. 

 At the time of the accident, Elite held a commercial insurance policy (the “Policy”) with Plaintiff. Id. ¶ 30. The Policy included coverage for “bodily injury” that 

occurred at the “coverage territory” during the policy period. Id. ¶ 31. The Policy contained an exclusion provision, however, that stated the “bodily injury” coverage did 

not extend to “[a]ny independent contractor or subcontractor performing work directly or indirectly on behalf of [Elite]” or to any employee of any such contractor or 

subcontractor. Id. ¶ 32. The Policy further stated that this exclusion provision did not 

apply if four listed conditions were all met. Id. Plaintiff alleges that two of these conditions were not met, thus precluding the application of the exception to the exclusion 

provision. First, N Castro did not waive any right of subrogation that it may have had 

against Elite in connection with Pomaquiza’s injuries. Id. ¶ 44. Second, the relevant 

subcontract agreement did not require Elite to be named as an additional insured 

under the subcontractor’s commercial general liability coverage. Id. ¶ 45. 

 Elite made a claim seeking a defense and indemnity from Plaintiff under the 

Policy in connection for the claims asserted against it in the underlying action. Id.

¶ 34. Plaintiff denied the claim and disclaimed any obligation from defending or indemnifying Elite in that action. Id. ¶ 35. Plaintiff subsequently brought this action 

and seeks a declaration that it “owes no duty under the Policy to defend or indemnify 

Elite Exteriors with respect to the claims asserted against it in the Underlying Action.” Id. ¶ 48. 

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 To summarize, Pomaquiza was a construction worker employed by Elite’s subcontractor at the time of his injury. The Policy did not cover bodily injury to employees 

of subcontractors unless four specific conditions were met. Plaintiff argues that two 

of these conditions were not met and thus that the exclusion to the Policy’s “bodily 

injury” coverage applies. Dkt. 20 at 12. 

 Because the Court must accept these well-pleaded allegations as true, Plaintiff 

has established that is has neither a duty to defend nor indemnify Elite in the underlying state court action. Plaintiff is entitled to a declaration to that effect. Judgment 

is therefore entered in favor of Plaintiff and against Elite. A separate judgment order 

will be entered. Civil case terminated. 

SO ORDERED. 

 

Date: January 28, 2021 

 JOHN F. KNESS 

 United States District Judge 

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