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Caouette v. Martinez8/19/1993
he vehicle was entrusted is reckless, heedless, or incompetent. Mejia v. Erwin, 45 Wash. App. 700, 704, 726 P.2d 1032 (1986) (citing Cameron v. Downs, 32 Wash. App. 875, 650 P.2d 260 (1982)). Nowhere in the materials that Caouette submitted in support of her judgment did she set forth facts that would support a finding that Angelico Martinez negligently entrusted the pickup truck to Augustine Martinez. In
short, the trial court simply had no evidence to support a finding of negligent entrustment. It follows, therefore, that a judgment against Angelico Martinez was not justified. While Caouette asserts that she can rely on the unanswered allegations of negligent entrustment that were set forth in her complaint, we disagree. The complaint indicated simply that Caouette was struck by a pickup truck, which was:
operated by defendant AUGUSTINE MARTINEZ, and which was negligently entrusted and provided to him and owned by, or co-owned with Defendant ANGELICO MARTINEZ, who is believed to be the brother of Defendant AUGUSTINE MARTINEZ.
It would be inequitable to allow the judgment to stand on a mere allegation that there was negligent entrustment of the pickup truck, particularly where, as here, the plaintiff submitted an affidavit in support of the judgment that failed to support the allegation in the complaint. We conclude, therefore, that the trial court did not abuse its considerable discretion in holding that there was an independent ground for vacating the default order and judgment against Angelico Martinez.
Conclusion
We reverse the Superior Court's determination that the statute of limitations was not tolled during the period the defendants concealed themselves, and we remand for a hearing so that the trial court may enter findings as to the duration of the concealment and determine whether the statute of limitations had run on Caouette's claim in light of the duration of the concealment. We affirm the trial court insofar as it determined that the default judgment against Angelico Martinez should be vacated on independent grounds.
Disposition
Holding that the statute of limitation was tolled during any period in which the resident defendants were concealing their whereabouts to avoid personal service of process, and that a failure to notify a nonparty insurer of the plaintiff's intention to seek a default judgment was not grounds to vacate the judgment, but that the absence of a prima facie case against one of the defendants was grounds to vacate that portion of the default judgment, the court reverses the order vacating and dismissing the action against one of the defendants, affirms the dismissal of another defendant, and remands for a determination of the period during which the remaining defendant concealed his whereabouts.
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