 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Meier v. McCord8/8/2001
Appeal from the Circuit Court of The Second Judicial Circuit Minnehaha County, South Dakota Hon. Glen A. Severson, Judge
Considered on Briefs May 21, 2001
[ .] In this appeal we hold that the release of a tortfeasor does not preclude an injured party from pursuing underinsured benefits from its insurance carrier. We also hold that the trial court abused its discretion in refusing to set aside a default judgment.
FACTS
[ .] On November 21, 1998, Anthony McCord failed to stop at a flashing red light and collided with another vehicle. Chad Meier, his passenger, was injured. It is undisputed that McCord's negligence was the sole cause of the accident. Therefore, liability was not disputed. The parties do dispute the amount of monetary damages Meier should receive.
[ .] During the summer of 1999, Meier served a summons and complaint on McCord seeking personal injury damages. However, he did not file his lawsuit with the clerk of courts at that time. McCord, through his attorney, engaged in settlement negotiations with Scott Hoy, Meier's attorney. As a result of these negotiations, McCord settled with Meier for $25,000, which equaled the policy limits of his liability policy. During this time, Hoy also notified Meier's insurance carrier, Western National Mutual Insurance Company, of Meier's lawsuit against McCord and of the $25,000 offer. Western National consented to the settlement and the release of McCord.
[ .] Hoy informed Western National that Meier would seek benefits under his underinsured motorist coverage because the $25,000 settlement with McCord did not fully compensate Meier for his damages. On August 31, 1999, Mel Schwartz, who was Western National's adjuster for this file, sent Hoy a letter stating that the company believed the settlement with McCord adequately compensated Meier for his injuries and that it would not offer additional monies from Meier's underinsured motorist benefits.
[ .] On September 7, 1999, Meier released McCord from all liability arising out of the accident. By mistake, Hoy sent the original release to Schwartz who received it on September 10, 1999 and returned it to Hoy on September 13, 1999. Hoy claims the release allowed Meier to settle with McCord while permitting Meier to pursue the underinsured motorist claim against Western National.
[ .] In addition to correspondence, Hoy's office spoke with Schwartz several times between August 31, 1999 and September 15, 1999 discussing Meier's claim for underinsured motorist benefits under his Western National policy. The parties dispute the exact content of these conversations. Hoy contends Schwartz ultimately decided, on behalf of Western National, that the company would make no offer to Meier for underinsured motorist coverage and that it would not defend the suit. Western National argues that the only communication Schwartz made to Hoy's office was that Western National denied Meier's claim for underinsured motorist benefits.
[ .] Two days after the last conversation, Meier filed the original summons and complaint against McCord with the clerk of courts. On December 3, 1999, Hoy filed Meier's motion for default judgment against McCord and mailed it to Western National. The very same day, the trial judge, without a hearing, granted default judgment in favor of Meier for $125,000. Although aware that the pleadings had been served on McCord, Western National did not receive notice of the filing of the lawsuit or the motion for default judgment until after the circuit court signed the default judgment. Western National contends it was entitled to notice of Meier's intent to take default judgment against McCord and that Me
Page 1 2 3 4 5 6 South Dakota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|