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McElroy v. Eagle Star Group1/25/2005
m, or even to acknowledge it. After being properly served with the suit papers, Jaax then waited until twenty of the thirty days comprising Eagle Star's answer period had already elapsed before forwarding them to Eagle Star's insurance agency. Moreover, he did not follow up with counsel for McElroy to ensure that an answer or other response to the petition was timely filed by Stone Oak's insurance carrier.
While Jaax's conduct up to that point could be charitably viewed as merely negligent or imprudent, it is clear that his subsequent actions recklessly impeded the judicial process, because Jaax then received a copy of McElroy's motion for an interlocutory order of default against Eagle Star, which expressly stated that Eagle Star was "now in default" since " ore than 30 days have passed since service and no Answer has been filed." At that point, Jaax knew (or should have known) that the matter had not, in fact, been "taken care of" by Stone Oak's insurance carrier as he had previously assumed. Yet Jaax recklessly chose to rely on his insurance agent's contrary assurance that Stone Oak's insurance carrier "would in fact handle this matter." See Krider , 844 S.W.2d at 12.
But Jaax's reckless and impeditive conduct did not stop there. Incredibly, even after (1) receiving actual notice that McElroy's motion for an interlocutory order of default against Eagle Star had been granted; (2) receiving a copy of the interlocutory order itself; and (3) learning that a default judgment had subsequently been entered against Eagle Star, Jaax once again consciously chose to rely on his insurance agent's repeated but unreasonable assurance that Stone Oak's insurance carrier "would in fact handle this matter." This could well be considered evidence of Jaxx's intentional indifference to the consequences of his actions, which, as noted supra , is also a form of recklessness. Moreover, it was not until an additional two weeks had passed that Jaax, after having been informed by McElroy's counsel that Stone Oak's insurance carrier had never responded to the lawsuit and having learned that there might not actually be any insurance coverage whatsoever, finally retained counsel to represent Eagle Star -- some nine weeks after its 30-day answer period had expired. Cf. Great Southern, 887 S.W.2d at 583-84; Krugh v. Hannah , 126 S.W.3d 391, 393 (Mo. banc 2004).
Finally, as noted supra , the trial court also had substantial and undisputed evidence before it that Jaax, an experienced pro se litigant who had participated as either a plaintiff or a defendant in more than 85 cases which resulted in default judgments, knew full well that Eagle Star's failure to file a timely answer or other response to McElroy's petition in accordance with Rule 55.25(a) could result in a default judgment against Eagle Star. While a defaulting defendant's familiarity with litigation and experience in hiring attorneys for other cases does not, standing alone, support a conclusion that the defendant intentionally or recklessly impeded the judicial process, Great Southern , 887 S.W.2d at 584, in its most recent Rule 74.05(d) case, our Supreme Court held that uncontroverted evidence of other default judgments involving the same defendant "leads to the conclusion that she was well aware of the consequences of her inattention and makes her failure to file more egregious than excusable." Krugh, 126 S.W.3d at 393.
On this record, the inescapable conclusion is that the trial court most certainly did not abuse its discretion in refusing to set aside the default judgment against Eagle Star. Jaax's actions could reasonably have been viewed by the trial court as more than a series of unfortunate mishaps involving what Eagle Star's brief
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