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THOMAS v. THOMPSON2/1/1995
Matthew Thompson appeals from the default judgment entered in the Superior Court (Oxford County, Alexander, J.) on the plaintiff's
I. Background
This action results from a motor vehicle accident in which Bonita Thomas was killed on December 30, 1991. According to Thompson's affidavit, he was travelling on Route 17 in Roxbury when his vehicle was struck in its own lane of travel by the vehicle driven by Thomas in the opposite direction.
Stephen Thomas, the personal representative of Bonita Thomas, commenced this action against Matthew Thompson by an amended complaint, properly served on Thompson in person at his home in New Jersey on June 19, 1993. Pursuant to Rule 12(a), his answer was due on or before July 9, 1993. Thompson promptly consulted his attorney after receiving service of the complaint. He sent the summons and complaint, as well as a written request that it defend the suit, to Warner Insurance Systems via certified mail. Warner received the materials on June 25, 1993.
Thompson telephoned Warner on July 6, 1993 and was told that the company could not locate the information that Thompson sent them. In response, Thompson promptly arranged for a facsimile transmission of the documents to Warner on July 7, 1993. Herbert Rankin, a claims representative for Material Damage Adjustment Corporation, received the documents on July 8, 1993. Rankin made an unsuccessful attempt to contact Thomas's attorney in Maine to discuss settlement. Meanwhile, Thomas filed a request for a default and a motion for a default judgment and a hearing on damages, with supporting affidavits. The clerk entered a default against Thompson on July 12, 1993.
Rankin finally reached counsel for plaintiff on July 14, 1993 and learned of the entry of the default. Rankin transferred the file to a litigation supervisor, who immediately sent the file to Platz & Thompson in Lewiston. The defendant's answer to Thomas's complaint was served on July 21, 1993 by mail, and entered on the docket on July 22, 1993. Thompson then filed a motion to set aside the entry of default and for leave to file a late answer with a memorandum of law and supporting affidavits. In his affidavit, Herbert Rankin states that the delay in answering the complaint was a consequence of his vacation. When he returned to work, Thompson's suit was one of over 15 new suits which needed immediate attention. Rankin had over 600 cases pending at the time. He further stated in his affidavit that defaults are routinely set aside in New Jersey, and rarely requested in the first place when the insured has acted promptly to send the summons and complaint to his insurer.
The court denied the motion to set aside the default based on Thomas' representation through counsel that he would not seek recovery from Thompson personally. A damages hearing took place on April 5, 1994. The court (Bradford, J.) entered a judgment against Thompson for $79,642 plus interest and costs. Thompson appeals.
II. The Legal Standard
"For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." M.R.Civ.P. 55(c). Considerable deference is accorded the determination of a trial court in ruling on a motion to set aside an entry of a default. Boit v. Brookstone Co., 641 A.2d 864, 865 (Me. 1994). The denial of a motion for relief from the entry of a default is reviewed only for an abuse of discretion. Vargelis v. Minieri, 620 A.2d 275, 275-76 (Me. 1993); Mockus v. Melanson, 615 A.2d 245, 247 (Me. 1992).
The proponent of a motion pursuant to M.R.Civ.P. 55(c) must show both a good excuse for untimel
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