Hilyer v. Fortier
Citation | 227 So.3d 13 |
Decision Date | 06 January 2017 |
Docket Number | 1140991. |
Parties | Adam Dan HILYER v. Betti FORTIER, individually and as mother and next friend of M.M., a minor |
Court | Supreme Court of Alabama |
John W. Dodson and Robert A. Arnwine, Jr., of Dodson Gregory, LLP, Birmingham, for appellant.
Julia A. Beasley of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee.
Adam Dan Hilyer appeals from the order of the Elmore Circuit Court ("the circuit court"), following this Court's remand of the case, denying Hilyer's motion filed pursuant to Rule 55(c), Ala. R. Civ. P., to set aside the default judgment entered against him and in favor of Betti Fortier, individually and as mother and next friend of M.M., a minor. For the reasons explained below, we reverse and remand.
This case has previously been before this Court. See Hilyer v. Fortier, 176 So.3d 809 (Ala. 2015) (" Hilyer I"). The following facts from Hilyer I are pertinent to our review:
The affidavits Hilyer attached to his Rule 55(c) motion to set aside the default judgment contain facts pertinent to our review in the present case. In Hilyer's affidavit, Hilyer stated that he backed the tractor-trailer rig into his driveway at least twice a week for six years before the accident. He stated that his general practice in backing the tractor-trailer rig into the driveway was to drive past his driveway, stop, turn on the four-way flashers, make sure that the road was clear, and back into his driveway. According to Hilyer, the stretch of road in front of his house was never very busy, and, on most occasions, he stated, he did not see any vehicles while backing the tractor-trailer rig into his driveway.
Additionally, according to Hilyer's affidavit, on the night of the accident, Hilyer followed his general practice of backing into his driveway. Hilyer stated that he stopped after passing his driveway and turned on the four-way flashers. He further stated that he looked in all directions and, not seeing any vehicles approaching, began backing into his driveway.
Hilyer also stated that, at some point, he saw a minivan coming toward his tractor-trailer rig. According to Hilyer, the driver of the minivan should have seen his tractor-trailer rig. Hilyer stated that there was a streetlight behind his tractor-trailer rig, that the four-way flashers were on, and that there was reflective tape running along the length of the side of the trailer. According to Hilyer, he flashed his lights to get the driver's attention but the minivan crashed into the tractor-trailer rig. Hilyer stated that the minivan appeared to be going well over the 35 m.p.h. speed limit.
According to Hilyer, he notified his insurance agent at Ledkins Insurance Agency ("Ledkins") of the accident on July 30, 2013, the day after the accident. Hilyer stated that, based on that conversation, it was his understanding that his insurance company was investigating the accident and would defend him if a lawsuit was filed against him.
In the affidavit filed by Hilyer's neighbor, Wyman Earl Jackson, Jackson stated that on the night of the accident the headlights on the tractor-trailer rig were on. Jackson further stated that the hazard lights began flashing once Hilyer began backing the rig into his driveway. According to Jackson, he saw the minivan approach, and it appeared to Jackson that the minivan was going faster than the 35 m.p.h. speed limit. Jackson stated that, as the minivan approached, Hilyer flashed the headlights on the tractor-trailer rig and honked the horn. Jackson further stated that there were reflectors on the trailer.
In Roberto Lozano's affidavit, Lozano, a claims adjuster for Alteris Insurance Services, stated that Sparta Insurance ("Sparta") had issued Hilyer a commercial automobile policy that was in effect on the day of the accident. Lozano stated that, on July 30, 2013, Ledkins reported a claim arising out of the accident involving Hilyer and that, as a result, Lozano established a claim number for Hilyer's claim. Lozano further stated that, on August 2, 2013, he hired Crawford & Company, a property and casualty company, to investigate the accident.
Lozano stated that he intended to assign responsibility for Hilyer's claim to another Alteris adjuster and that, thinking he had done so, he did not monitor Hilyer's claim. Lozano stated that, because of his belief that he had assigned the case to another Alteris adjuster, he did not read or respond to any further correspondence he received from Fortier's counsel. According to Lozano, when the default judgment against Hilyer was brought to his attention, he realized that he had not assigned the claim to another adjuster as he had thought he had done. He stated that he then retained counsel and that "had [he] realized sooner a complaint had been filed, [he] would have immediately retained counsel to defend Hilyer."
The letters from Fortier's counsel Hilyer attached to his Rule 55(c) motion also include facts pertinent to our review of the ruling before us. One letter, a letter from Fortier's counsel to Lozano dated August 8, 2013, indicates that counsel was representing Fortier with reference to the accident and requested, among other things, that future correspondence be sent to her. It is undisputed that Lozano read this letter, but the letter does not mention an intent to file a lawsuit against Hilyer. Another letter from Fortier's counsel to Lozano, dated October 31, 2013, references a complaint filed against Hilyer in the circuit court. A third letter from Fortier's counsel to Lozano, dated January 2, 2014, advises Lozano, among other things, that an answer had not yet been filed on Hilyer's behalf. On January 28, 2014, the circuit court entered the default judgment.
On March 7, 2014, the same day Hilyer filed his motion to set aside the default judgment, Hilyer filed his answer to Fortier's complaint and asserted affirmative defenses.
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