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McElroy v. Eagle Star Group1/25/2005
Opinion Vote: AFFFIRMED.
Holliger, P.J., and Breckenridge, J., concur.
Opinion:
Appellant, Eagle Star Group, Inc. ("Eagle Star"), appeals the denial of its motion to set aside a default judgment entered by the Circuit Court of Jackson County in favor of respondent, Robin McElroy, in her personal injury action against Eagle Star. In its sole point on appeal, Eagle Star claims the motion should have been granted pursuant to Rule 74.05(d) since it stated facts establishing a meritorious defense to McElroy's lawsuit and also showed good cause for setting aside the default judgment. Finding a lack of good cause shown, we affirm.
McElroy's attorney first notified Eagle Star of McElroy's personal injury claim in a letter dated March 17, 2003, which was sent to and received by Eagle Star's registered agent, Michael Jaax. In this letter, counsel for McElroy described the nature and cause of McElroy's injuries, requested that Jaax notify Stone Oak's liability insurer of McElroy's claim, and asked that either Jaax or Stone Oak's liability insurer acknowledge her claim within fifteen days. Counsel for McElroy never received a response of any kind from Jaax or a liability insurer for Stone Oak.
McElroy filed her petition against Eagle Star on September 19, 2003, and Jaax was served on October 8, 2003. The petition alleged that McElroy was a resident of Stone Oak Apartments ("Stone Oak"), an apartment complex located at 3151 Jennings Road in Independence, Jackson County, Missouri, and that Eagle Star was "the owner and operator" of Stone Oak. According to the petition, on or about November 15, 2002, McElroy was injured when a glass globe which was located on a light fixture in her apartment fell off the fixture, striking her on the left wrist. The petition further alleged that an Eagle Star "maintenance employee" had previously changed a light bulb in that fixture but had negligently failed to secure the glass globe covering the fixture, which fell out of the fixture and struck McElroy when she subsequently attempted to replace the light bulb that had been placed there by Eagle Star's employee. The petition alleged three separate acts of negligence on the part of Stone Oak, "one or more of" which caused or contributed to cause McElroy's injuries: (1) that Stone Oak "failed to properly maintain the light fixture, to ensure that plaintiff could safely remove and replace a light bulb"; (2) that Stone Oak, "by its employee, improperly installed the lens to the light fixture so as to allow the lens to be insecure and fall on plaintiff as she attempted to change a light bulb"; and (3) that Stone Oak "allowed the light fixture to be placed in a location so that the fixture was dangerous to persons who might change the light bulb in said fixture, including plaintiff." Finally, the petition alleged that as a direct and proximate cause of Eagle Star's negligence, McElroy sustained: physical injury to her left arm and hand, including a lacerated tendon which required surgical repair; pain and suffering ; permanent and progressive disability; past and future medical expenses; and past and future wage losses.
Eagle Star failed to file an answer to McElroy's petition within thirty days of personal service of process on its registered agent, as required by Rule 55.25(a). As a result, on November 20, 2003 (which was a little less than two weeks after Eagle Star was required to have filed its answer), McElroy filed a motion requesting the entry of an interlocutory order of default under Rule 74.05(b), a copy of which was also served on Jaax by counsel for McElroy. The trial court entered an interlocutory order of default on November 25, 2003, and set an evidentiary hea
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