Grecco v. Campbell, 3-578A104
| Decision Date | 12 March 1979 |
| Docket Number | No. 3-578A104,3-578A104 |
| Citation | 386 N.E.2d 960,179 Ind.App. 530 |
| Parties | James GRECCO, Appellant (Defendant below), v. Madaline CAMPBELL, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Timothy M. Swan, Spangler, Jennings, Spangler & Dougherty, Gary, for appellant.
Lee J. Christakis, Gary, Max Cohen, Merrillville, for appellee.
James Grecco appeals from the denial of his motion to set aside a default judgment.
We affirm.
On October 30, 1976, Grecco and Madaline Campbell were involved in an automobile accident in which Campbell was injured. In an effort to negotiate a settlement, Campbell's attorney sent several letters to Grecco and to Grecco's insurance carrier, Sentry Insurance Company. The letters were not acknowledged. On February 15, 1977, Campbell's attorney sent another letter to Sentry. That letter identified the parties, the date of the accident and Sentry's file number. Enclosed were copies of Campbell's medical bills and a statement advising Sentry that none of the prior letters had been acknowledged. The statement further advised that Campbell would file suit if the letter was not acknowledged within ten days. Sentry did not acknowledge the letter until April 12, 1977.
On March 18, 1977, Campbell filed her complaint. A summons was issued and, pursuant to Ind.Rules of Procedure, Trial Rule 4.1, 1 the summons and complaint were delivered by the sheriff to Grecco's house. On March 28, 1977, Campbell's attorney sent yet another letter to Sentry at its claims processing office in Chicago, advising them that suit had been filed and providing them with the date, court and cause number. A copy of the complaint was also enclosed.
Neither Grecco nor Sentry entered an appearance. Accordingly, on April 27, 1977, Campbell applied for and obtained an entry of default and, after submitting evidence on damages, was awarded a default judgment.
Pursuant to TR. 60 2, Grecco filed a motion to have the judgment set aside. At the hearing on that motion Grecco testified that because of marital and health problems he had been staying with relatives at the time the complaint was delivered to his house and that it was not until April 13, 1977, when he returned to the house, that he first became aware that Campbell had filed suit. Grecco further testified that he then mailed the summons and complaint to Sentry's home office in Wisconsin. The home office, in turn, forwarded the summons and complaint to its claim processing office in Chicago. The matter did not come to the attention of the claims supervisor until May 3, 1977, when he returned from a vacation. By the time the claims supervisor forwarded the summons and complaint to local counsel, the default judgment had been entered.
Grecco's first contention on appeal is that the trial court erred in failing to find that his inaction prior to the default constituted or was the result of "excusable neglect." There are no fixed rules for determining what facts and circumstances do constitute excusable neglect. That determination is, instead, one addressed to the trial court's discretion. Soft Water Utilities, Inc. v. LeFevre (1973), 261 Ind. 260, 301 N.E.2d 745. Accordingly, our scope of review is limited to the question of whether or not the trial court abused its discretion.
The fact that Grecco was having marital and health problems and thus was not aware of the lawsuit until April 13, 1977, and the fact that the claims supervisor was on vacation until May 3, 1977, are such as might have permitted the trial court to excuse the neglect. The fact that the claims supervisor took immediate action when the matter finally came to his attention is another factor which could have permitted the granting of relief. However, merely because we conclude that the trial court might not have abused its discretion by granting the motion to vacate on these facts, it does not necessarily follow that the court did abuse its discretion when it denied the motion.
The neglect, whether on the part of Grecco or Sentry, was not shown as a matter of law to have been excusable neglect. Both Grecco and Sentry were aware long before Campbell's complaint was filed that litigation was likely to ensue. Both Grecco and Sentry were aware, prior to the default, that a complaint had, in fact, been filed. The trial court's ruling that the default was not the result of excusable neglect was within the proper bounds of its discretion.
Grecco's next argument on appeal is that the judgment is void because the service of...
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