Auto Accident Injury Victim’s Default Judgment Set Aside
Our law firm was not involved in the personal injury lawsuit described in this article.
A woman injured in a motor vehicle accident served the Washington Secretary of State because she was unable to locate the other driver to effect personal service. The trial court entered a default judgment. The court awarded $12,000 in general damages, $9,163.15 for past medical damages, $1,890.72 for property damage, $28,600 for future medical damages, $23,346.13 for past lost wages and future earning capacity, and $1,244.91 for statutory costs, for a total of $76,244.91.
The other driver’s insurance company, Farmers Insurance Company, was notified of the default judgment and promptly located their insured and filed a motion to vacate the default judgment.
The court vacated the default judgment finding that the defendant acted diligently in pursuing the motion to vacate, that the failure to appear was reasonable, and that she established substantial evidence of a prima facie defense to damages.
The plaintiff appealed.
The Washington Court of Appeals noted that the trial court’s decision to vacate a judgment should be guided by equitable principles and that default judgments are disfavored.
A party moving to set aside a default judgment must show (1) That there is substantial evidence extant to support, at least prima facie, a defense to the claim asserted by the opposing party; (2) that the moving party’s failure to timely appear in the action, and answer the opponent’s claim, was occasioned by mistake, inadvertence, surprise or excusable neglect; (3) that the moving party acted with due diligence after notice of entry of the default judgment; and (4) that no substantial hardship will result to the opposing party.
The first two factors are weighed more heavily than the second two.
The moving party must submit affidavits in support of his or her defense; mere allegations and conclusory statements are insufficient. For the purposes of the motion facts are viewed in the light most favorable to the party moving to vacate the default judgment.
The at-fault driver admitted liability for the collision, but contested the amount of damages awarded in the default judgment. The injured party claimed she was slammed into at about 20 m.p.h. The at-fault driver claimed she was only travelling about 5 m.p.h. and that some of the damage to the injured party’s vehicle was pre-existing damage. The injured party’s doctors concluded that her injuries were likely caused as a result of the collision, but perhaps their conclusions would differ if they thought that Ms. Scherza was hit at 5 or 6 miles per hour, instead of 20 to 30 miles per hour.
The second prong of the White test is whether the defendant’s failure to timely appear was due to mistake, surprise, inadvertence, or excusable neglect.
The lawsuit was not commenced until two years after the collision. The at-fault driver had moved only a month prior and had remained in the Spokane area. Her attorney was able to find her by doing a criminal check.
Under Washington case law the fact that a person merely moves before a lawsuit is filed alone is no basis to assert that that person left to avoid service. Also, the at fault driver reported the accident to her insurance the day after it happened and moved only a month before service was attempted on her two years later.
The Court of Appeals reasoned that it does not appear that the she was attempting to avoid service of the lawsuit and her failure to respond was not purposeful and falls under the category of excusable neglect.
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