Opinion
October 9, 1964.
November 10, 1964.
Practice — Default judgment — Opening — Discretion of court — Delivery of complaint to insurance agent.
In this action of trespass to recover damages for injuries resulting from a fall upon premises owned by defendant in which it appeared that in November 1962 defendant gave the summons to the insurance agent through whom he had purchased liability insurance covering the premises; that on May 31, 1963 defendant was served with a complaint whereupon he called the agent who said "There must be some mistake, forward it to me and I will take care of it at once" and defendant did so; that in July defendant learned that on June 26th plaintiff had entered a default judgment for want of an appearance for the defendant; and it further appeared that the party in possession and control of the premises on which the plaintiff was injured was not the individual defendant but a corporation and the statute of limitations barred any action against it, it was Held that the court below did not abuse its discretion in refusing to open the default judgment.
Mr. Chief Justice BELL dissented.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.
Appeal, No. 235, March T., 1964, from order of Court of Common Pleas of Washington County, Nov. T., 1963, No. 3, in case of Mary W. Murphy and Howard Murphy, her husband, v. Darrell G. Smith, also known as Darrell Smith, individually and trading as Cabana Beach Park. Order affirmed.
Petition to open judgment.
Order entered refusing to open judgment, opinion by SWEET, P. J. Plaintiff appealed.
Richard DiSalle, with him Michael E. Kusturiss, for appellant.
Stephen I. Richman, with him Greenlee, Richman, Derrico Posa, for appellees.
On November 20, 1962, Mary Murphy and her husband Howard, filed a praecipe for summons in trespass against Darrell G. Smith, individually and trading as Cabana Beach Park, the summons being served on Darrell Smith. Smith gave the summons to the insurance agent (James W. Arbore) through whom he had purchased the liability insurance covering his premises. Arbore informed Smith that he would take care of the matter. On May 31, 1963, Smith was served with a complaint in trespass; again he called Mr. Arbore, who advised him that "There must be some mistake. Forward it to me and I will take care of it once more." Smith forwarded the complaint to Arbore and heard nothing more about the matter until his attorney (Michael E. Kusturiss), while examining a title on July 9, 1963, discovered that the plaintiffs had, on June 26, 1963, filed a praecipe for judgment by default against Smith for want of filing an appearance. On July 18, 1963, Smith, through counsel filed a petition to open the default judgment. After answer containing new matter filed by the plaintiffs and a reply filed by the defendant, and hearing thereon, the court below refused to open the judgment.
The action of the court below is not to be reversed unless it abused its discretion: Lened Homes, Inc. v. Dept. of Licenses, 386 Pa. 50. A study of the record fails to reveal such abuse. The court below properly held that the failure of the insurance broker to take steps to protect the defendant, though perhaps giving rise to a cause of action by the defendant against the broker and/or the insurance carrier, could not deprive the plaintiffs of their right to judgment in reliance on the defendant's non-action. This is not the case of a defendant justifiably depending on his legal counsel to take necessary steps to protect him, but the case of a defendant relying on an insurance broker's statements that he would take care of the matter. Since the broker and/or insurance company is not hired to protect the defendant generally in the litigation and necessarily would have the desire to limit their consideration to insurance coverage only, the defendant should have taken further steps to insure protection of his rights. As between defendant and the plaintiffs the responsibility for the broker's actions must remain on the defendant, it now developing that the party in possession and control of the premises on which the wife-plaintiff fell was not the individual defendant but a corporation. If the judgment were permitted to be opened, the plaintiffs' cause of action against the corporation would be barred by the statute of limitations.
Order affirmed.
Mr. Chief Justice BELL dissents.