Boles v. Weidner

Decision Date07 June 1983
Docket NumberNo. 683S199,683S199
PartiesRobert S. BOLES, Plaintiff-Appellant, v. Wayne WEIDNER and W.W. Service Center, Defendant-Appellee.
CourtIndiana Supreme Court

Anthony J. Iemma, Iemma & Hughes, Elkhart, for plaintiff-appellant.

Thomas D. Blackburn, May, Oberfell, Helling, Lorber, Campiti & Konopa, South Bend, for defendant-appellee.

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Indiana Court of Appeals. The Elkhart Superior Court initially granted a default judgment against the defendants-appellees, Wayne Weidner and W.W. Service Center, but reversed itself after hearing evidence on the breakdown of communication between two insurance agencies involved in the lawsuit. The Court of Appeals, Fourth District, reversed the trial court's decision and ordered it to enter judgment for the plaintiff-appellant, Robert S. Boles. Boles v. Weidner, (1982) Ind.App., 440 N.E.2d 720.

The question presented for our review is whether the trial court correctly ruled that the breakdown in communication between the Gibson Insurance Agency, which was Weidner's independent insurance agency, and the Hartford Insurance Agency constituted mistake, surprise, or excusable neglect under Ind.R.Tr.P. 60(B)(1). We find the Court of Appeals to be in error. Accordingly, we grant transfer, vacate the Court of Appeals' opinion, and affirm the trial court's decision.

The facts as set out by the Court of Appeals are as follows:

"Robert S. Boles was involved in an automobile accident with Wayne Weidner on December 19, 1978. Prior to commencement of any suit, Weidner was advised of Bole's representation by counsel by letter on January 16, 1979. Weidner's insurer responded to such notification by letter. Correspondence between Boles' lawyer and the insurer followed.

Boles filed his complaint for damages on October 17, 1980. Weidner and W.W. Service Center, his employer, were both served with a copy of the complaint and summons. No appearance was made for either party. On December 4, 1980, Boles moved for default judgment. The motion was granted that day. On December 29, 1980, the trial judge heard evidence of Boles' damages and granted judgment against Weidner and W.W. Service Center in the sum of $65,000.00 plus costs.

Counsel for Weidner and W.W. Service Center entered an appearance on September 1, 1981, and filed a motion for relief from judgment. Weidner claimed that he had given the summons and complaint to the Gibson Insurance Agency which was to notify the Hartford Insurance Group, Weidner's insurer. A 'breakdown in communication' between the Gibson Insurance Agency and the Hartford Insurance Group resulted in Hartford not receiving notice of the suit. Weidner contended that the breakdown in communication constituted mistake, inadvertent surprise or excusable neglect which justified the setting aside of the default judgment.

After initially granting the motion without hearing any evidence, the trial judge set aside the grant of relief and heard evidence. It when granted the motion in January of 1982 making the following findings:

'[T]he amount of the judgment is large, there are material issues of fact on the issue of liability as well as damages, the breakdown in communication between the independent insurance agency (Gibson Insurance Agency) and Hartford Insurance Group constitutes mistake, inadvertent surprise or excusable neglect, and the failure of plaintiffs' counsel to exercise the common courtesy of notification to the insurance carrier (Hartford) of the existence of a suit constitutes conduct prejudicial to the entry of a default judgment and a factor which contributed to the entry of default.' " [Emphasis by Court of Appeals]

On appeal, Boles contended that the trial court's ruling was an abuse of discretion because there was no evidence to support its findings and thus its granting of the motion was contrary to law. The Court of Appeals agreed, finding that there were not sufficient facts before the trial court to justify excusable neglect and therefore held that the trial court erred in entering judgment for the appellees.

T.R. 60(B) provides in pertinent part:

"RELIEF FROM JUDGMENT OR ORDER

(B) Mistake--Excusable neglect--Newly discovered evidence--Fraud, etc. On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons:

(1) mistake, surprise, or excusable neglect;

(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59;

(3) fraud (whether heretofore denominated instrinsic (sic) or extrinsic), misrepresentation, or other misconduct of an adverse party; ...."

In a recent decision, Siebert Oxidermo, Inc. v. Shields, (1983) Ind., 446 N.E.2d 332, 340, this Court stated:

"We initially note that our standard of review in the area of default judgments is a limited one. The decision whether or not to set aside a default judgment is committed to the sound discretion of the trial court. Thus, our review is limited to determining whether there has been an abuse of discretion. Henderson v. American Optical Co. (1981), Ind.App., 418 N.E.2d 549.

... The trial court's discretion is necessarily broad in this area as any determination of excusable neglect must turn upon the unique factual background of each case. No fixed rules or standards have been established as the circumstances of no two cases are alike. Grecco v. Campbell (1979), Ind.App., 386 N.E.2d 960."

An abuse of discretion is an erroneous conclusion and judgment, one clearly against the...

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48 cases
  • McClurg v. Deaton
    • United States
    • South Carolina Court of Appeals
    • November 20, 2008
    ...and unfair advantage" which could not be tolerated. Id. Further, in reaching its decision, the McGee court referenced Boles v. Weidner, 449 N.E.2d 288, 290 (Ind.1983) and stated: While there is no general duty to inform the defendant's insurer of a lawsuit, in Boles, the supreme court concl......
  • Stone v. State
    • United States
    • Indiana Appellate Court
    • April 10, 1989
    ... ... Boles v. Weidner (1983), Ind., 449 N.E.2d 288, 290. When an act is committed to a trial court's discretion, the courts on appeal will reverse only upon a ... ...
  • Roso v. Henning, 19934
    • United States
    • South Dakota Supreme Court
    • June 4, 1997
    ...to plead formally, [Defendant] would be obliged to request a judgment by default. Sun Bank, 874 F.2d at 277. See also Boles v. Weidner, 449 N.E.2d 288, 290 (Ind.1983)(although not having a duty to do so, failure of plaintiff's counsel to exercise courtesy of notifying carrier of commencemen......
  • Kmart Corp. v. Englebright
    • United States
    • Indiana Appellate Court
    • November 19, 1999
    ...In re Marriage of Ransom, 531 N.E.2d 1171, 1172 (Ind.1988). Each case must be determined on its particular facts. Boles v. Weidner, 449 N.E.2d 288, 290 (Ind.1983). The following facts have been held to constitute excusable neglect, mistake, or (a) absence of a party's attorney through no fa......
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