Plaintiff cites to Defendant's affidavit wherein he represents that after receiving the paperwork regarding the present lawsuit, he contacted his insurance representative about the matter. Plaintiff claims these facts are similar to those addressed in Henline, Inc. v. Martin, 348 N.E.2d 416 (Ind. Ct. App. 1976), and that, based upon that precedent, Defendant's motion to set aside must be denied. In Henline, the corporate and individual defendants were served with a summons and complaint, which Harley Henline, the president and sole shareholder of Henline, Inc., promptly delivered to his insurance agent.
The evidence was such that the trial court could properly refuse to set aside the default. In Henline, Inc. v. Martin (1976), 169 Ind. App. 260, 348 N.E.2d 416, the court affirmed the trial court's refusal to set a default judgment aside where the defendant's insurance adjuster had failed because of the press of business to act promptly upon receipt of legal documents. In so holding, the court stated:
[8] Trial Rule 60(B) provides a means for parties to seek relief from an order or judgment, including from entry of default. See Ind. Trial Rule 60(B) (providing several grounds upon which a party might seek relief); Henline, Inc. v. Martin, 169 Ind. App. 260, 348 N.E.2d 416, 419 (Ind. Ct. App. 1976) (determining that a party need not wait for default judgment but may attack entry of default by means of a Trial Rule 60(B) motion). The rule is a permissive one, giving the trial court latitude to relieve a party upon proper motion.
More significantly, under the evidence it was not compelled to do so.Id. at 340 (citing Henline, Inc. v. Martin, 169 Ind.App. 260, 268, 348 N.E.2d 416, 420-21 (1976) (affirming the trial court's refusal to set aside default judgment where the defendant's insurance adjuster had failed to act promptly upon receipt of legal documents while noting that under the same facts "another trial court might not have abused its discretion by granting defendants relief!.]")). Siebert Oxidermo also argued that the trial court abused its discretion when it denied its second and third 60(B) motions and alleged that those motions raised grounds that were unknown or unknowable on the date it filed its first 60(B) motion.
Id. at 339-40. In the Siebert Oxidermo opinion, the role of an insurance claims adjuster was analogized to the role of an attorney acting on a defendant's behalf when the court quoted Henline, Inc. v. Martin, 169 Ind. App. 260, 269, 348 N.E.2d 416, 420-21 (1976): "Considering the role of defendants' insurance company as the entity in charge of defendants' defense, it would not be unreasonable for the trial court to analogize an attorney acting on defendants' behalf so as to apply the `general rule . . . that the negligence of the attorney is the negligence of the client.
The majority of the cases addressing this question make clear that in order to merit relief from default judgment, the conduct of the party and its litigation agents — attorneys and insurers — must be explained and must meet the standard of mistake or excusable neglect. See Henline, Inc. v. Martin, 348 N.E.2d 416, 420-21 (Ind.Ct.App. 1976) ("Considering the role of defendants' insurance company as the entity in charge of defendants' defense, it would not be unreasonable for the trial court to analogize the status of the company's claims adjuster with that of an attorney acting on defendants' behalf so as to apply the `general rule . . . that the negligence of the attorney is the negligence of the client[.]'" (quoting Moe v. Koe, 330 N.E.2d 761, 765 (Ind.Ct.App. 1975));St. Arnold v. Star Expansion Indus., 521 P.2d 526, 533 (Or. 1974) (in banc) (adopting principle that insurer, by retaining control of suit brought against its insured, became agent of the insured);Stevens v. Gulf Oil Corp., 274 A.2d 163, 164 (R.I. 1971) (insurer should be treated as agent of insured for purposes of considering excusable neglect to file answer); Memorial Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 652 (Tex.Ct.App. 1992) ("When a party relies on an agent or representative to file an answer, the party must establish that the failu
"It is the necessarily ad hoc nature of resolution of T.R. 60(B)(1) cases that places the decision primarily in the hands of the trial court." Henline, Inc. v. Martin, 169 Ind. App. 260, 267, 348 N.E.2d 416, 420 (1976). In light of this limited scope of review, we consider the allegation of abuse in the instant case.
There are numerous cases that hold that the negligence of a lawyer, insurance agent, adjuster, or other handling process does not amount to excusable neglect as a matter of law, and does not require reversal by this court. Siebert Oxidermo, Inc. v. Sheilds, (1983) Ind., 446 N.E.2d 332; Blichert v. Brososky, (1982) Ind. App., 436 N.E.2d 1165; Grecco v. Campbell, (1979) Ind. App., 386 N.E.2d 960; In re Marriage of Robbins, (1976) 171 Ind. App. 509, 358 N.E.2d 153; Payne v. Doss, (1976) 170 Ind. App. 652, 354 N.E.2d 346; Henline, Inc. v. Martin, (1976) 169 Ind. App. 260, 348 N.E.2d 416; Glennar Mercury-Lincoln, Inc. v. Riley, (1975) 167 Ind. App. 144, 338 N.E.2d 670; Moe v. Koe, (1975) 165 Ind. App. 98, 330 N.E.2d 761; Cazarus v. Blevins, (1974) 159 Ind. App. 512, 308 N.E.2d 412. As implied in Henline and Grecco, where the asserted excusable neglect consists of a clerk's negligence, the trial court, in its discretion, might or might not find excusable neglect, and neither ruling of the trial court would be disturbed on appeal.
Huff v. Travelers Indemnity Co. (1977), 266 Ind. 414, 363 N.E.2d 985. Inasmuch as the rule contains no time proscription, the matter of timeliness is within the trial court's discretion. Henline, Inc. v. Martin (1976), 169 Ind. App. 260, 348 N.E.2d 416. The grant or denial of leave to amend is therefore reviewable only for an abuse of discretion and, unless prejudice is shown, it will be presumed there was no error. Selvia v. Reitmeyer (1973), 156 Ind. App. 203, 295 N.E.2d 869.
An [4, 5] entry of default is interlocutory until it determines all the rights of the parties at which time it becomes a final judgment. Carson v. Perkins (1940), 217 Ind. 543, 29 N.E.2d 772, 774; Pounds v. Pharr (1978), 176 Ind. App. 641, 376 N.E.2d 1193; Henline, Inc. v. Martin (1976), 169 Ind. App. 260, 348 N.E.2d 416; Schenkel v. Citizens State Bank (1967), 140 Ind. App. 558, 224 N.E.2d 319, 320. Clearly, where the action is for a sum certain and liquidated, the final judgment can be entered and no hearing on damages would be necessary.