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THOMAS v. THOMPSON2/1/1995
good cause to set aside the entry of a
Moreover, the representation accepted by the court purporting to protect the insured from any financial loss offers only the illusion of protection. A judgment has been entered against Thompson in the amount of $79,642, plus interest and costs. That judgment contains no restriction against recovery from Thompson personally, and there are no documents of record confirming that the personal representative of the estate of Bonita Thomas has waived the right of recovery against Thompson. There are many instances of parties to litigation repudiating the unauthorized representation of counsel. That possibility is present here. Although Thomas, having procured a judgment against Thompson, may intend to seek a settlement with Thompson's insurance company or satisfaction of the judgment through a "reach and apply" action against it, the outcome of those initiatives is uncertain and Thompson remains potentially liable for the judgment as entered.
In fashioning its order, the trial court focused only on protecting Thompson from financial loss and ignored his legitimate interest in defending himself against the claim that his negligence caused the death of Bonita Thomas. The judgment entered establishes Thompson's liability for her death despite the existence of a meritorious defense. That judgment of responsibility for another's death is no small matter. The trial court's order does nothing to protect Thompson from that stigma.
Conclusion
The court's implicit finding of a good cause to set aside the entry of a default required it to order the relief sought. Its failure to do so was an abuse of discretion.
The entry is:
Judgment vacated. Remanded for the entry of an order vacating the entry of the default and permitting the filing of defendant's answer.
All concurring.
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