Gifford v. Hartford Steam Boiler Inspection & Ins. Co., No. 46A03-0309-CV-363.

• Docket Nº: No. 46A03-0309-CV-363.
• Citation: 811 N.E.2d 853
• Case Date: July 13, 2004
• Court: Court of Appeals of Indiana

811 N.E.2d 853

Virginia GIFFORD, Appellant-Defendant,
v.
The HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY, Appellee-Defendant, and
Daniel Lee Erickson, Individually and as Father and Personal Representative of the Estate of Joan Roberta Erickson, Deceased, Appellee-Plaintiff

No. 46A03-0309-CV-363.

Court of Appeals of Indiana.

July 13, 2004.

811 N.E.2d 854

James M. MaCalka, LaPorte, IN, Attorney for Appellant

Mark A. Lienhoop, Newby, Lewis, Kaminski & Jones, LLP, LaPorte, IN, R. Dennis Withers, Robins, Kaplan, Miller & Ciresi, LLP, Atlanta, GA, Attorneys for Appellees.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Virginia Gifford (Gifford), appeals the trial court's denial of her motion to set aside default judgment pursuant to Ind. Trial Rule 60(B).

We affirm.¹

ISSUE

Gifford raises several issues on appeal, one of which we find dispositive and restate as follows: whether the trial court abused its discretion in denying her motion to set aside default judgment pursuant to T.R. 60(B).

FACTS AND PROCEDURAL HISTORY

Prior to the death of their daughter, Joan, Gifford and Daniel Erickson (Erickson) were divorced. Erickson was granted custody of Joan, from the time she was fourteen years old. In early 1993, when Joan was eighteen years old, she was employed as a press operator at American Rubber Products Corporation in LaPorte, Indiana. On March 4, 1993, she was killed as the result of a boiler explosion in her workplace.

On March 3, 1995, Erickson filed his Complaint for Wrongful Death and Jury Demand in the LaPorte Superior Court against Hartford Steam Boiler Inspection and Insurance Company (HSB), among others. Erickson also named Gifford as a defendant "as her interests may appear." (Appellant's App. p. 68). On April 19, 1995, Gifford was served by certified mail. On May 15, 1995, a document entitled "Virginia Gifford's Answer to Plaintiff Daniel Erickson's Complaint" was filed with the trial court. The name immediately beneath the signature line is "Greta Van Susteren." (Appellant's App. p. 107). Beneath Ms. Van Susteren's name is "Wendy Ehrlich, Coale & Van Susteren, 5335 Wisconsin Ave N.W., Washington, D.C. 20015." (Appellant's App. p. 107). No

811 N.E.2d 855

other pleadings were filed by Gifford in the case and no appearances were made by Gifford or anyone purporting to represent her

On May 7, 2001, the trial court began a jury trial, at which neither Gifford nor anyone purportedly representing her appeared. On the second day of trial, the trial court granted Erickson's motion for default judgment against Gifford. The jury trial ended on May 17, 2001, at which time the jury returned its verdict in favor of Erickson and against HSB. On May 8, 2002, Attorney James McCalka entered his appearance on behalf of Gifford and filed a verified motion to set aside the default judgment. Meanwhile, on September 25, 2002, Erickson's $1.4 million verdict against HSB was affirmed on appeal. Subsequently, on April 30, 2003, our supreme court denied HSB's petition to transfer the case.

On May 8, 2003, Gifford filed her "Emergency Motion to Enjoin Clerk from Dispersing Judgment Proceeds and Request for Court Determination on Distribution of Proceeds according to the Intestate Statute and Temporary Order Against Dispersment of Proceeds in the Above Cause." (Appellant's App. p. 16). On May 14, 2003, the trial court denied her motion.

On August 4, 2003, the trial court heard argument on Gifford's motion to set aside the default judgment. Subsequently, on August 8, 2003, the trial court denied Gifford's motion.

Gifford now appeals. Additional facts will be supplied as necessary.

DISCUSSION AND DECISION

Gifford argues that the trial court abused its discretion in denying her motion to set aside default judgment pursuant to T.R. 60(B). Specifically, she asserts that the filing of her answer and affirmative defense put the other parties on notice that she was asserting her right as the non-custodial parent to claim damages for loss of the love, care, and affection of her daughter. Gifford further maintains that neither she nor her attorney, Greta Van Susteren, ever received notice of the May 7, 2003 jury trial setting. In addition, neither she nor her attorney received notice that Erickson's motion for default judgment against Gifford for failing to appear for the jury trial proceedings had been granted by the trial court. Gifford argues that, as a result, her right to due process has been violated.

Conversely, Appellee-Defendant, HSB, contends that Gifford was not entitled to notice because she never entered an appearance or otherwise responded in accordance with the Indiana Rules of Trial Procedure with regard to the filing of Erickson's complaint. In particular, HSB asserts that, although an answer was filed on Gifford's behalf on May 15, 1995, it was not signed by Gifford and there is no evidence that either of the two names listed under the signature line belonged to attorneys licensed to practice law in the State of Indiana. HSB argues that, as a result, Gifford was properly defaulted by the trial court on May 8, 2001, and, thus, the trial court properly denied Gifford's subsequent motion to set aside the default judgment pursuant to T.R. 60(B). We agree with HSB.

Trial Rule 60(B) functions primarily as the avenue of redress for defendants defaulted under T.R. 55 and for plaintiffs who were dismissed pursuant to T.R. 41. King v. King, 610 N.E.2d 259, 262 (Ind.Ct.App.1993), reh'g denied, trans. denied. Under T.R. 60(B), the movant bears the burden of establishing the existence of grounds for...