 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
THOMAS v. THOMPSON2/1/1995
iness in pleading and Hamby v. Thomas Realty Assocs., 617 A.2d 562, 563-64 (Me. 1992) (citing Design Build of Maine v. Paul, 601 A.2d 1089, 1091 (Me. 1992)). Thomas concedes that Thompson has a meritorious defense. He argues, however, that there was no good excuse for the untimely response, and hence no good cause for setting aside the entry of a default.
III. The Court's Rulings
This case comes to us under unusual circumstances. The court denied the motion to set aside the entry of a default solely on the strength of counsel's representation that Thomas would "not seek recovery directly against individual defendant." Implicit in the court's ruling is a finding that, in the absence of such a representation, the court would have set aside the entry of the default for a good cause. The issues before us, therefore, are the correctness of the court's implicit finding that there was a good cause for setting aside the entry of a default, and of its refusal to set aside the entry of a default because of the representation of Thomas's counsel that there would be no recovery against the individual defendant Thompson.
Good Cause
There is a strong preference in our law for deciding cases on the merits. Wescott v. Allstate Ins., 397 A.2d 156 (Me. 1979); see 2 Field, McKusick & Wroth, Maine Civil Practice § 55.7 at 24-25 (2d ed. 1970). Consistent with this preference, we note that under Fed.R.Civ.P. 55(c), which is identical to M.R.Civ.P. 55(c), motions to set aside a default have been granted in cases when no gross neglect was involved in the late filing, the nondefaulting party will not be substantially prejudiced by reopening the case, and a meritorious defense exists. 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2696 at 518-19 (1983) (citing numerous federal cases).
The assessment of neglect in default cases often requires an evaluation of the conduct of both the insured and the insurer. Although we reaffirm the principle that an insured is generally held accountable for the actions of the insurer which cause an entry of a default against the insured, see, e.g., Boit v. Brookstone Co., 641 A.2d 864 (Me. 1994); Firth v. City of Rockland, 580 A.2d 694 (Me. 1990), the conscientiousness of the insured in seeking a timely response to a lawsuit can mitigate the impact of this principle in a default situation.
In this case, Thompson went to considerable lengths to assure a timely response to the cause of action against him. In addition to forwarding the summons and complaint to his insurer promptly, Thompson thereafter contacted his insurer to inquire about the case. When he was told that the company could not locate the information he sent them, he responded by arranging for a facsimile transmission of the documents to his insurer. In short, Thompson did everything that one could reasonably ask an insured to do to assure a timely response.
Although the insurer was clearly remiss in not having a system in place to monitor Rankin's files while he was on vacation, the insurer took prompt action after becoming aware of the default to file a response which, in fact, was only about two weeks late. In these circumstances, there was no gross neglect on the part of the insured or the insurer with respect to the late filing. In addition, there was no showing of prejudice to the nondefaulting party by a reopening of the case, and the meritorious defense is conceded. These factors amply support the trial court's implicit finding that there was a good cause to set aside the entry of a default.
The "Non-Recovery" Against the Defendant
Having found implicitly that there was a
Page 1 2 3 Maine Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|