 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Fair v. Rodgers12/12/2003
NOT TO BE PUBLISHED
OPINION REVERSING
Melissa Fair appeals from an order of the Casey Circuit Court, denying her motion to set aside a default judgment entered in favor of Melissa Rodgers for damages arising from an automobile accident. Fair argues that it was an abuse of discretion to refuse to set aside the default judgment and the award of damages, due to lack of notice of the motion for default judgment and the hearing on damages, and the misconduct of opposing counsel in misleading her insurer regarding the status of the claim. We agree, and reverse the decision of the circuit court, and order the award of damages to be set aside.
The automobile accident in question took place on July 23, 1998. Fair's vehicle collided with the rear of Rodgers' vehicle, and Rodgers alleges that she suffered severe and permanent injury as a result. Rodgers retained counsel and on January 31, 2000, counsel contacted Fair's insurer, Go America Auto Insurance, regarding settlement of the personal injury claim. Go America had already settled the property damage claim, and was still negotiating the personal injury claim when Rodgers filed this action on February 2, 2000. It appears that Fair was served with the complaint, but she neglected to inform Go America of the filing of the complaint. It also appears that the clerk issued no civil summons, and so only the complaint was served upon Fair. The record contains a certified mail receipt for the complaint, signed by Fair. Meanwhile, Rodgers' counsel continued negotiations with Go America, and in a March 16, 2000 letter, Rodgers' counsel stated that "We are writing to you for the purpose of pre-litigation settlement discussion. . . " and, further, used the language "in the event litigation becomes necessary regarding this claim," effectively representing to the insurer that litigation had not commenced when in fact this action had been filed some six weeks prior. Fair alleges that she never received any other documents pertaining to this action. The certificates of service on the motion for default judgment and on the notice of the hearing on damages also show that these documents were sent to an incorrect address, and the record contains returned envelopes marked "not deliverable as addressed".
Default judgment was entered in favor of Rodgers. No hearing on damage was held until almost two years later, and the circuit court awarded an amount of $770,498, grossly exceeding the amount demanded from Go America, which was $25,000, Fair's policy limits. It also appears that this figure was awarded at the conclusion of a 20-minute hearing at which no witnesses other than the plaintiff testified. Rodgers gave hearsay testimony about statements her doctors had made to her, and the trial judge went on to set an impairment rating without a physician's testimony. The circuit court refused to set aside the default judgment, holding that Rodgers would be unfairly prejudiced thereby since four years had elapsed since the accident occurred and two more years had elapsed since the filing of the action. This appeal followed.
Fair argues that the failure to issue a summons with the complaint renders the service fatally defective. A review of the Civil Rules indicates that the rules indeed require that a summons be issued with the complaint, and that proof of service of same be in the record. Rodgers argues that the procedure the clerk followed was to generate only one hard copy of the summons, enclose it with the complaint, with the certified mail receipt acting as proof of service of the summons. As we are unable to determine whether a summons was issued in this fashion, we decline to decide the matter on these grounds and hold that Fair
Page 1 2 Kentucky Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|