Boles v. Weidner, 4-482A90

• Decision Date: 14 October 1982
• Docket Number: No. 4-482A90,4-482A90
• Parties: Robert S. BOLES, Appellant (Plaintiff Below), v. Wayne WEIDNER and W. W. Service Center, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 720

440 N.E.2d 720

Robert S. BOLES, Appellant (Plaintiff Below), v. Wayne WEIDNER and W. W. Service Center, Appellees (Defendants Below).

No. 4-482A90.

Court of Appeals of Indiana Fourth District.

Oct. 14, 1982.

Anthony J. Iemma, Elkhart, for appellant.

Thomas D. Blackburn, May, Oberfell, Helling, Lorber, Campiti & Konopa, South Bend, for appellees.

YOUNG, Presiding Judge.

Plaintiff-appellant Robert S. Boles appeals from the granting of defendants-appellees Wayne Weidner's and W. W. Service Center's motion for relief from judgment under Trial Rule 60(B).

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 then 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 ours.]

Boles appeals contending that the trial court's ruling was an abuse of discretion in that there was no evidence to support its findings and thus its granting of the motion was contrary to law. Our standard of review was recently discussed in Stewart v. Hicks, (1979) Ind.App., 395 N.E.2d 308, 311:

A Trial Rule (60)(B)(1) motion to set aside a default judgment is addressed to the trial court's equitable discretion with the burden upon the movant to affirmatively demonstrate necessary and just relief. Cazarus v. Blevins (1974), 159 Ind.App. 512, 308 N.E.2d 412, 414. The movant must show a sufficient excuse for suffering a default judgment through mistake, surprise or excusable neglect. Kreczmer v. Allied Construction Company (1972), 152 Ind.App. 665, 284 N.E.2d 869, 870. There is no general rule as to what constitutes excusable neglect. Each case must be determined on its particular facts. Grecco v. Campbell (1979), Ind.App., 386 N.E.2d 960, 961; 4 W. Harvey & R. Townsend Indiana Practice Sec. 60.10, at 209...