Opinion
Civil Action CV-19-413
06-06-2020
KAREN LADEWIG, Plaintiff v. SOUTHWEST AIRLINES, CO., et al Defendants
For Defendant Southwest Airlines: Phillip E. Johnson, Esq. For Plaintiff: David Kreisler, Esq.
For Defendant Southwest Airlines: Phillip E. Johnson, Esq.
For Plaintiff: David Kreisler, Esq.
ORDER AND DECISION
Harold L. Stewart, II Justice, Superior Court
Before the Court is Defendant Southwest Airlines, Co.'s (Southwest) Motion to Vacate Default and for Leave to File Answer filed May 7, 2020. Plaintiff Karen Ladewig (Ladwig) filed her objection to the motion on May 26, 2020, and Southwest filed its reply on June 5, 2020. Hearing was held June 29, 2020. For the reasons set forth below, the motion is granted.
1. Facts
Ladewig alleges that on March 29, 2018 while a passenger on a Southwest flight she was assaulted by another passenger, and that attendants on the flight were aware of the other passenger's behavior and failed to prevent the assault. On October 11, 2019 Ladewig filed with the court a five count complaint alleging negligence and negligent infliction of emotional distress against Southwest, assault and battery and intentional infliction of emotional distress against "John Doe", the passenger who allegedly assaulted her, and a count for punitive damages against both Southwest and John Doe. Southwest was served with the complaint on December 23, 2019.
No answer being filed, on March 27, 2020 Ladewig filed with the court a request for default. Default was entered by the court against Southwest on April 23, 2020. Upon receiving notice of the default, Southwest filed its Motion to Vacate Default on May 7, 2020, Southwest's motion is supported by the Affidavit of Sherry Ortiz (Ortiz Affidavit ¶__), who works as the claims division manager of United States Aircraft Insurance Group (USAIG), Southwest's insurer for Ladewig's claim. In the affidavit Ortiz avers that on April 19, 2018 Ladewig had given notice to Southwest of her claim, and on July 10, 2018 Ladewig submitted a settlement demand letter alleging she was sexually assaulted and that Southwest failed to protect her. (Ortiz Affidavit ¶¶ 4, 5) Ortiz further avers that Southwest and USAIG conducted an investigation which indicated there had been an obnoxious passenger on the flight, but the investigation did not support that a sexual assault had occurred. (Ortiz Affidavit ¶¶ 6, 8) In addition, Ortiz avers that there was a record that Ladewig's husband had called Southwest to report his wife had witnessed another passenger using vulgar language, but the husband stated the other passenger never touched his wife. (Ortiz Affidavit ¶ 7). Based on its investigation, USAIG denied Ladewig's claim. (Ortiz Affidavit ¶ 8).
On October 18, 2018 Ladewig's counsel sent USAIG a courtesy copy of the complaint. (Ortiz Affidavit ¶ 9). On March 6, 2019 Ladewig submitted to USAIG a reduced demand which USAIG again denied. (Ortiz Affidavit ¶ 9) In late October 2019 Ladewig sent USAIG a copy of a complaint signed by Ladewig's new counsel. (Ortiz Affidavit ¶ 11) USAIG verified the compliant had been filed with the court but service had not yet been made. (Id.) At around the same time the claim had been transferred to Ortiz for handling who also confirmed service of the complaint had not been made on Southwest. (Ortiz Affidavit ¶ 12)
On December 23, 2019 service of the complaint was made on CSC, Southwest's process agent in Maine, and notification of that service was emailed by Southwest to Ortiz on December 27, 2019. (Ortiz Affidavit ¶¶ 13, 14) Ortiz avers the email with notification of service evaded her attention due to her working from home over the holidays, having additional unusual burdens of covering for claims managers who were on vacation, and working overtime on her own cases which required constant travel to attend various proceedings in several different geographic regions. (Ortiz Affidavit ¶ 16) Ortiz asserts that during her professional career as a practicing lawyer and as a claims manager she has never missed a deadline or failed to take prompt action upon notification of service. (Ortiz Affidavit ¶ 15)
2. Standard of Review
Per M. R. Civ. P. 55(c), for good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside m accordance with Rule 60(b). Thomas v. Thompson, 653 A.2d 417, 419 (Me. 1995). The proponent of a motion pursuant to M.R. Civ. P. 55(c) must show both a good excuse for untimeliness in pleading and also the existence of a meritorious defense. Id. Although the rule does not define good cause, the Law Court has provided some guidance that that while establishing good cause to set aside a default judgment requires a reasonable excuse for the default, establishing good cause to set aside an entry of default is less stringent Zigna v. Sullivan, 2005 Me. Super. LEXIS 119, citing Theriault v. Gauthier, 634 A.2d 1255, 1256-57 (Me. 1993) There is strong preference for deciding cases on the merits, and consistent with this preference, motions to set aside a default have been granted in cases when no gross neglect was involved in the late filing, the nondefaulting party will not be substantially prejudiced by reopening the case, and a meritorious defense exists. Thomas v. Thompson, 653 A.2d at 420.
3. Discussion
a. Good Cause
Upon being served, Southwest immediately forwarded the complaint to USAIG to be answered. (See Thomas v. Thompson, 653 A.2d at 420-the conscientiousness of the insured in seeking a timely response can mitigate the impact of this principle in a default situation.) But the email with the notification of service simply evaded Ortiz's attention. The court is satisfied by Ortiz's explanation that she missed the notification due to the timing of the holidays and the demands of work and hectic travel schedule. There is no evidence of gross neglect.
Southwest's answer was due January 13, 2020. There being no answer filed, Ladewig made her request for an entry of default, which was entered on April 23, 2020, Southwest became aware of the default on April 27, 2020, and immediately initiated action including the filing of this motion under consideration. Although the motion was filed approximately four (4) months after the deadline to file an answer, the court can discern no prejudice to Ladewig by setting aside the default and allowing a late answer. In the overall lifespan of a typical personal injury lawsuit, and considering suit was filed in this case approximately 21 months after the alleged incident, a four month delay does not substantially prejudice Ladewig's access to justice. In addition, the court takes note of the fact that a significant portion of the delay occurred when most court functions and many businesses operations (including many law firm operations) were impacted, if not shut down, by the COVID-19 pandemic.
As previously discussed, the courts have a strong preference for deciding cases on the merits. There being no evidence of gross neglect, and the court not finding substantial prejudice to Ladewig if the default is set aside, on the averments present by Ortiz, Southwest has met its burden of showing a good excuse for not timely filing a response.
b. Meritorious Defense
For the purpose of this motion, the court accepts the averments made by Ortiz in her affidavit that Southwest and USAIG conducted an investigation and could not identify evidence that supported Ladewigs allegations that she was assaulted during her flight. In addition, their investigation did have record of Ladewig's husband calling to report an incident, but his stating the other passenger never touched his wife. All of the evidence collected by Southwest and USAIG led to the denial of the claim. Although the evidence may indeed parse out differently through discovery and at trial, based on the information presented Southwest has met its burden of showing the existence of a meritorious defense, that defense being that Ladewig was not assaulted on the plane as she alleges in her complaint.
The entry shall be:
1. Defendant Southwest Airlines, Co.'s Motion to Vacate Default and for Leave to File Answer is granted; the default is vacated and set aside, and Defendant's answer shall be accepted for filing.
2. The clerk is to issue a new Standard Scheduling Order per M.R.Civ.P. 16(a) dated the date of this order.
3. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).