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Norton v. Brown12/16/1999
As amended June 13, 2000. Order to publish granted.
JEFFREY M. NORTON, A MARRIED PERSON, RESPONDENT,
v.
LOYAL W. BROWN AND JANE DOE BROWN, HUSBAND AND WIFE, APPELLANTS.
Source of Appeal: Appeal from Superior Court of Yakima County Docket No: 97-2-00923-4 Judgment or order under review Date filed: 10/02/1998 Judge signing: Hon. Robert N. Hackett Jr.
Counsel: Counsel for Appellant(s) Peter J. Johnson 700 Lincoln Bldg 818 W Riverside Spokane, WA 99201 David K. Daggett 700 Lincoln Bldg 818 W Riverside Spokane, WA 99201 Counsel for Respondent(s) Rodney K. Nelson Abeyta & Nelson 1102 W. Yakima Ave. Yakima, WA 98902 John S. Kapuza 1102 W Yakima Ave Yakima, WA 98902-3029
Judges: Authored by John A. Schultheis Concurring: Dennis J. Sweeney Stephen M. Brown
The opinion of the court was delivered by: Schultheis, C.J.
Panel Three
PUBLISHED OPINION
Dec. 16, 1999
Loyal Brown appeals the trial court's denial of his motion to reconsider its decision not to vacate a default judgment for over $77,000 in favor of Jeffrey Norton, the plaintiff in a personal injury action. Mr. Brown contends the trial court made several incorrect rulings, which in effect denied his constitutional right to due process of law. Further, he claims the trial court abused its discretion when it refused to vacate the default judgment based on excusable mistake and confusion and/or because the monetary judgment was excessive. We reverse and remand for trial.
On August 11, 1995, Mr. Brown and Mr. Norton were involved in a motor vehicle accident in Yakima County, Washington. The parties agree the accident occurred when Mr. Brown's vehicle struck Mr. Norton's vehicle after Mr. Brown fell asleep at the wheel. Mr. Norton was injured when his vehicle left the roadway and flipped over on its side. The parties dispute the extent and cause and/or exacerbation of Mr. Norton's injuries.
Allstate Insurance Company insured Mr. Brown at the time of the accident. He timely informed Allstate about the accident and at some point Allstate began settlement negotiations with Mr. Norton's legal counsel regarding his claim for personal injuries resulting from the accident.
When the parties did not reach an agreed settlement, Mr. Norton's counsel prepared a summons and complaint for personal injuries. On April 17, 1997, counsel for Mr. Norton sent a courtesy copy of the pleadings to Brett Follett, the Allstate adjuster handling Mr. Brown's claim, with a letter informing him that the papers were "out for service" on Mr. Brown. The pleadings were filed the next day in Yakima County Superior Court and Mr. Brown was served on April 21. Mr. Brown did not ever notify Allstate about the summons and complaint because he thought his insurer was already handling the claim on his behalf.
When no notice of appearance or answer from Mr. Brown was received within the 20 days allowed by law, counsel for Mr. Norton requested and was granted an order of default on May 16. Following a hearing on the default action, the court entered a default judgment against Mr. Brown on June 17, 1997, in the amount of $77, 294.11 plus interest. A few hours prior to the default judgment being filed, a notice of appearance was filed on behalf of Mr. Brown, although counsel for Mr. Norton did not receive it until after returning from court with the order of default.
Counsel for Mr. Norton chose not to inform Mr. Brown that a default judgment had just been entered. In fact, although Mr
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