 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Meier v. McCord8/8/2001
hat they "(1) acted with excusable neglect and (2) had a meritorious defense." Smith v. Hermsen, 1997 SD 138, , 572 NW2d 835, 838 (citing Hrachovec v. Kaarup, 516 NW2d 309, 311 (SD 1994); Clarke v. Clarke, 423 NW2d 818, 820-21 (SD 1988)).
[ .] Parties who suffer a default judgment may seek relief under SDCL 15-6-60(b)(1), which permits relief from a final judgment for excusable neglect. In this context, we have stated that excusable neglect must be "of a nature that would cause a reasonably prudent person under similar circumstances to act similarly." Peterson v. La Croix, 420 NW2d 18, 19-20 (SD 1988). Although defining excusable neglect is elusive and difficult, we must interpret it liberally to ensure that cases are decided on the merits. Smith, 1997 SD 138, , 572 NW2d 835, 838 (citations omitted).
[ .] When considering cases involving SDCL 15-6-60(b), we must remember its purpose is "'to preserve the delicate balance between the sanctity of final judgments and the incessant command of a court's conscience that justice be done in light of all the facts.'" Hrachovec, 516 NW2d at 311 (citations omitted). " lementary fairness demands of courts a tolerant exercise of discretion in evaluating excusable neglect." Roso, 1997 SD 82, , 566 NW2d at 141 (citing City of Lemmon v. U.S. Fidelity & Guar., 293 NW2d 433, 437 (SD 1980)).
[ .] Western National argues it made an appearance as defined in Roso and that its failure to file an answer was excusable neglect. It points to the contacts between Schwartz and Meier's attorney and his office personnel as constituting an appearance entitling them to notice of intent to take default judgment prior to the date of the default judgment. It also contends that Meier's failure to notify it that he had filed his summons and complaint against McCord with the clerk of courts is the reason it failed to answer. Meier hid this from the company until he had obtained a default judgment. We agree.
[ .] First, in Roso, we pointed out that "earnest negotiations" occurred evidenced by the active communication between the parties. Roso, 1997 SD 82, , 566 NW2d at 141. Similarly, active communication flowed between Meier's attorney and Western National including correspondence and telephone conversations. These informal contacts between Meier's attorney and Company began July 23, 1999, when it received a copy of the summons and complaint, and continued through September 15, 1999. As Roso instructs, we must treat these informal contacts with "'a degree of common-sense flexibility.'" 1997 SD 82, , 566 NW2d at 140 (citations omitted). We find that the informal contacts that occurred here constitute an appearance under SDCL 15-6-55(b) and entitled Western National to notice of Meier's intent to take a default judgment in this case.
[ .] Second, since Western National did not file a responsive pleading it must show (1) it acted with excusable neglect and (2) it has a meritorious defense in order to obtain relief from the final judgment. Smith, 1997 SD 138, , 572 NW2d at 838. The company argues it did not answer because it was unaware that Meier had filed his summons and complaint with the clerk of courts. Although Schwartz testified that he understood, " here may be a potential underinsured motorist claim," after he consented to Meier's settlement with McCord, Meier did not inform the company that he had filed the summons and complaint. Meier filed the lawsuit just two days after the last contact with Western National. Considering that Western National was not a named party to the suit, Meier should have notified the company that he filed his lawsuit because "cases should ordinarily be decided on the merits." Roso, 1997 SD 82, , 566 NW2
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.
|
|