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Scognamillo v. Herrick3/10/2003
CERTIFIED FOR PUBLICATION
INTRODUCTION
In this case arising out of an automobile accident, defendants and appellants Larry Herrick and White Knight Limousine Service appeal from a default judgment in favor of plaintiff and respondent Michael Scognamillo. Defendants contend that the trial court's entry of default is void because Scognamillo failed to file a statement of damages with the court, although defendants were served with the required statement. Defendants further contend that the trial court abused its discretion in denying defendants' motion for relief from default as they demonstrated excusable neglect. We reject both of these contentions.
Defendants further argue that the judgment must be reversed because a portion of the damage award was not supported by sufficient evidence, and because the trial court failed to reduce to present cash value the portion of the award representing future medical expenses and lost earnings. We agree with these contentions and we therefore reverse a portion of the judgment.
Factual and procedural background
In late March 2000, Scognamillo and Herrick were involved in a car accident, while Herrick was in the course and scope of his employment for White Knight Limousine Service, a business of which Herrick is part owner. Herrick notified Fullerton Insurance Services (Fullerton), his insurance broker, of the accident, and it notified Ward North America (Ward), the third-party administrator for United States Fidelity and Guaranty Company, which insured White Knight.
Ward's claims account manager, Sharon McGaff, set up a file on the matter on April 6, 2000. Scognamillo's insurer, State Farm, pursued a property damage subrogation claim. Ward paid Scognamillo $600 on July 24, 2000, to resolve the claim, and Ward then closed its claim file.
On March 26, 2001, Scognamillo, represented by Attorney Scott D. Dinsmore, filed a personal injury lawsuit against Herrick and White Knight. Scognamillo served Herrick and White Knight with the summons and complaint on March 30, 2001. Defendants failed to file an answer to the complaint. After receiving no response, Dinsmore mailed a request for entry of default to defendants on July 12, 2001, and the clerk entered defaults against defendants on July 16, 2001.
On August 16, 2001, defendants filed a motion to vacate the default pursuant to Code of Civil Procedure section 473, on the basis that the default was entered as a result of extrinsic mistake, inadvertence, or excusable neglect. In support of the motion, defendants filed declarations by Herrick, a claims account manager for defendants' insurance carrier, and the attorney retained by the insurance carrier to represent defendants after the default was entered.
Herrick stated in his declaration that he hand-delivered the summons and complaint to his insurance broker, Fullerton, and was told the matter would be taken care of and that he had coverage for the accident. A few weeks later, plaintiff's counsel Dinsmore called Herrick and asked if he had forwarded the summons and complaint to his insurance provider; Herrick said he had done so. Herrick called Fullerton and asked if the summons and complaint had been sent to the insurance carrier. The broker later confirmed that the summons and complaint had been sent, and assured Herrick everything would be handled. Herrick could not recall if he had any later conversations with Dinsmore regarding the summons and complaint.
In July 2001, Herrick received a copy of a request for entry of default. He called his insurance broker to make sure his interests were being protected. The broker later told Herrick that it wa
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