Summary
finding defendant was unable to show "extraordinary circumstances" when all he could show was that the insurance company's claims' office failed to process the claim when he sent them the complaint
Summary of this case from Karman v. Board of AdjustmentOpinion
C.A. No. 03C-02-034 JTV
Submitted: July 25, 2003
Decided: October 22, 2003
Upon Consideration of Defendant's Motion to Vacate Default Judgment DENIED.
William D. Fletcher, Jr., Esq., Schmittinger Rodriguez, Dover, Delaware. Attorney for Plaintiff.
Charles P. Coates, III, Esq., Newark, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the defendant's motion to vacate default judgment, the plaintiffs response, and the record of the case, it appears that:
1. This is a personal injury, auto accident case. The complaint was filed on February 28, 2003. The defendant was served on March 4, 2003. He failed to plead, appear or otherwise defend within 20 days as required by the Court's rules. On March 27, 2003, the plaintiff filed a motion for default judgment, noticing it for presentation on April 11, 2003. The plaintiff mailed a copy of the motion and notice to both the defendant and a claims' representative of the defendant's insurer, Nationwide Mutual Insurance Company ("Nationwide").
2. When the motion was presented on April 11, no one appeared to defend against it and the motion was granted.
3. On May 30, 2003, the defendant, represented by counsel secured for him by Nationwide, filed a motion for relief from the default judgment under Rule 60(b). The motion explains that the defendant delivered the complaint and related papers to his insurance agent on March 20, 2003. The agent sent the papers to Nationwide's claims' office on or about the same day, but Nationwide took no steps to protect the defendant's interest in the case until learning on May 20 that default judgement had been entered.
4. It appears that the failure of Nationwide to act upon the complaint prior to May 20 was caused by neglect on the part of the responsible Nationwide employee, but not excusable neglect.
5. The defendant urges the Court to vacate the default judgment under Rule 60(b)(6), which permits the court to vacate a default judgment for any "reason justifying relief from the operation of the judgment." He contends that he has a legitimate defense on the merits and that the plaintiff will not be unduly prejudiced if the default judgment is vacated. He emphasizes to the Court the well-known principle that public policy favors the determination of actions based upon their merits.
6. The plaintiff opposes the motion. He points out that neither the defendant nor Nationwide on his behalf responded to the motion for default judgment in April even though they were both given specific notice as to when it would be presented. He also contends that the event which finally motivated Nationwide to respond to this case was the filing of motions for default judgment by the same plaintiffs counsel in two other cases in which Nationwide was the insurer for a defendant. The motions in those cases referred to the entry of default judgment in this case as part of an alleged pattern on Nationwide's part of failing to see that timely answers were filed on behalf of its insureds. But for the motions in those cases, the plaintiff contends, there is no way to tell how long it might have been before Nationwide took any action regarding the default judgment in this case.
7. Relief under Rule 60(b)(6) is an extraordinary remedy which requires a showing of "extraordinary circumstances." In considering whether "extraordinary circumstances" are shown, the court should bear in mind that Rule 60(b)(6) "vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice."
Dixon v. Delaware Olds, Inc., 405 A.2d 117 (Del. 1979); Jewell v. Division of Social Services, 401 A.2d 88 (Del. 1979).
Jewell at 90, quoting Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 OL. Ed. 266; modified, 336 U.S. 942, 69 S.Ct. 398, 95 L.Ed. 1099 (1949).
8. It does appear that the defendant may have a defense of comparative negligence. A copy of the police report is attached to the complaint. It indicates that the investigating police officer gave traffic tickets to both the plaintiff and the defendant. In addition, there is no indication that the plaintiff would suffer unfair prejudice if the judgment were vacated, apart from the seven month delay occasioned by the defendant's failure to file a timely answer.
9. However, in order to show "extraordinary circumstances" for vacating the default judgment, the defendant must show something beyond the neglect that seems to be involved here. The failure of the claims' representative to process the complaint properly into the hands of defense counsel does not constitute "extraordinary circumstances" justifying relief from the judgment in this case.
10. Therefore, the motion to vacate default judgment is denied. The inquisition at the bar has not yet been conducted. An appearance in the action now having been made, the defense will be entitled to participate in that proceeding when it occurs.
IT IS SO ORDERED.