Summary
denying defendant's motion to reargue the Court's order which had denied defendant's motion to open a default judgment because defendant "got involved too late"
Summary of this case from Mahoney v. Avantix Laboratories Inc.Opinion
C.A. No. 99C-07-031-WTQ.
Date Response due.
Decided: August 9, 2000.
Letter Opinion and Order on Defendant Jimmy's Grille's Motion for Reargument — MOTION DENIED .
Gentlemen:
This is the Court's Letter Opinion and Order on Defendant Jimmy's Grille's Motion for Reargument of the Court's Order Denying Defendant's Motion to Open a Default Judgment. For the reasons stated herein, that Motion is DENIED.
FACTS
This is a personal injury case. Mrs. Cummings sought damages stemming from a slip and fall which occurred while she was a patron at Jimmy's Grille. Jimmy's Grille was served the Complaint through its registered agent on July 14, 1999. Mr. Stoner, Plaintiffs' attorney also sent a letter directly to Jimmy's Grille on July 2, 1999 notifying it of the suit. No appearance was lodged on behalf of Jimmy's Grille. In October of 1999, Plaintiffs filed a Motion for Default Judgment against Jimmy's Grille. A courtesy notice was sent to Jimmy's Grille on October 22, 1999, alerting it of an impending Motion for Default Judgment. Dkt. No. 9. At that time, Jimmy's Grille was also sent notice of the Motion through its registered agent. On November 22, 1999, a Default Judgment was entered against Jimmy's Grille for failure to answer the Complaint.
On May 17, 2000, an arbitration hearing was held. It appears that notice of the arbitration hearing was hand delivered to Jimmy's Grille's registered agent on May 5, 2000. Additionally, a letter was sent directly to Jimmy's Grille alerting it of the arbitration, which letter was signed for. No entry of appearance was made on behalf of Jimmy's Grille at the arbitration. The arbitrator ruled against Jimmy's Grille and in favor of Mrs. Cummings in the amount of $100,000. The arbitrator made no award for loss of consortium and found on behalf of Mr. Michael A. Saro, the other Defendant. The arbitrator's award was not appealed.
Mr. Saro was sued in his capacity as the landowner of the premises.
On July 7, 2000, Jimmy's Grille filed a Motion to vacate the Default Judgment against it and to reopen the case. In that Motion, Jimmy's Grille, through its owner James Tenneffoss, claimed that it had never been personally served with a copy of the Complaint. Mr. Tenneffoss also claimed that he had forwarded all correspondence concerning the lawsuit to his insurance brokers, Callaway, Farnell Moore. Mr. Tenneffoss further argued that he never received a copy of the notice of the arbitration hearing because service was sent to Jimmy's Grille's registered agent. Mr. Tenneffoss claimed that after he received notice of the arbitrator's award, he contacted his insurance broker about the judgment and filed a prompt Motion to Vacate the Default Judgment and reopen the case.
In fact, it appears that Jimmy's Grille was also sent notice of the arbitration hearing on May 8, 2000. The notice of the arbitration hearing was received and signed for by Carol King on May 10, 2000. Dkt. No. 17, Ex.D.
In response, Plaintiffs showed evidence that correspondence concerning the lawsuit was sent directly to Jimmy's Grille on July 2, 1999, May 5, 2000, and May 17, 2000. Correspondence was also sent to Jimmy's Grille's registered agent on July 2, 1999, October 22, 1999, and May 5, 2000 (via hand delivery). Plaintiffs also provided an affidavit of Debby R. Flood, who worked for the insurance broker, Callaway, Famell Moore (currently named Farnell Gast, LLC). Ms. Flood stated that she is the employee responsible for all client insurance matters in the business. Flood Aff., Dkt. No. 17, Ex. G. She stated that from July of 1999, she was not aware of, nor was she ever provided with, a copy of the summons and Complaint. Id. She further stated that she was not provided with the Motion for Default Judgment, nor was she ever provided with a copy of the Superior Court Order granting Default Judgment. Id. She also stated that she was not aware of any litigation until recently. Id.
On July 24, 2000, the Court denied Jimmy's Grille's Motion to Vacate the Default Judgment. Jimmy's Grille filed a Motion for Reargument, claiming that "the Court did not fully consider the important issue of the broker's negligent conduct leading up to the default judgment as opposed to the diligent conduct of the [D]efendant." In this Motion, Jimmy's Grille again states that it acted in a reasonable manner by purportedly sending all correspondence concerning the suit to its insurance broker.
STANDARD OF REVIEW
"A motion for reargument is the proper device for seeking reconsideration by the Trial Court of its findings of fact, conclusions of law, or judgment. . . . The manifest purpose of all Rule 59 motions is to afford the Trial Court an opportunity to correct errors prior to appeal. . . ." Hessler, Inc. v. Farrell, Del. Supr., 260 A.2d 701, 702 (1969). See also Bochnowski v. Sheth, Del. Super., 92C-05-023, Graves, J. (June 22, 1994). A Motion for Reargument is not a device for raising new arguments or stringing out the length of time for making an argument. Murphy v. State Farm Ins. Co., Del. Super., C.A. No. 96C-02-243, Quillen, J. (July 24, 1997). It will be denied unless the Court has overlooked a controlling precedent or legal principles, or unless the Court has misapprehended the law or facts such as would affect the outcome of the decision. Interim Health Care v. Fournier, Del. Ch., C.A. No. 13003, Jacobs, V.C. (Mar. 25, 1994), Mem. Op. at 2.
DECISION
Jimmy's Grille cites Williams v. Delcollo Electric Co., Del. Super., 576 A.2d 683 (1989), for the proposition that the Default Judgment can be lifted when a Defendant-insured gives a copy of the Complaint to his agent who then negligently fails to forward the Complaint to counsel. In Williams, there was no question that the Defendant forwarded information concerning the suit to the insurance company. The insurance company had opened a file on the case but, through a series of events that were due to the excusable neglect of the insurance company, counsel never received notice of the suit until after Default Judgment was entered. The Court also noted that "[t]his is not a case where the defendant waited months before taking corrective action." Id. at 686. Ultimately, the Superior Court vacated the Default Judgment because of the insurance company's excusable neglect.
Here, unlike the case in Williams, there is no conclusive evidence other than his affidavit that Mr. Tenneffoss ever forwarded any correspondence to his insurance agent. The affidavit provided by Ms. Flood directly contradicts Mr. Tenneffoss' contentions. But, even if it can be argued that the Defendant's insurer-insured dispute should be litigated in this case, the repeated notices to Jimmy's Grille and its rgistered agent cannot be ignored. Jimmy's Grille was sent a letter on July 2, 1999 notifying it of the lawsuit. No answer to the Complaint was ever filed. Before the Default Judgment was entered, Plaintiffs noticed the Motion to Jimmy's Grille's registered agent. No one ever appeared. Prior to the arbitration, on May 5, 2000, seven months after the Default Judgment had been entered, notice was given by mail directly to Jimmy's Grille of the arbitration and was hand delivered to the registered agent. No representative of Jimmy's Grille appeared at the arbitration. It was not until after the arbitrator's order was received that Jimmy's Grille began to participate in the lawsuit.
A handwritten notation on the "Notice of Motion" for Default Judgment provided for the Court in Dkt. No. 17, Ex. B indicates that a courtesy copy was sent to Jimmy's Grille on October 22, 1999.
Jimmy's Grille waited at least seven months until after the Default Judgment was entered and until a financial judgment had been rendered against it to attempt to vacate the Default Judgment. Contrary to Jimmy's Grille's assertions, its conduct here has not been diligent. A Defendant cannot have the judgment vacated where it has simply ignored the process. See id. at 685. There has got to be an end to soft-hearted judicial tolerance. The Plaintiffs broke their back trying to keep Jimmy's Grille informed and Jimmy's Grille refused to listen. The Plaintiffs have rights, too. Jimmy's Grille waited until after a substantial judgment had been rendered against it before it became involved in the process. Jimmy's Grille got involved too late. Thus, the Jimmy's Grille's Motion for Reargument must be DENIED. IT IS SO ORDERED.
Mr. Pileggi has valiantly pulled out all the stops in attempting to get the Court to vacate the Default Judgment. The Court, however, cannot ignore Jimmy's Grille's refusal to participate in this lawsuit until a large judgment was rendered against it.