Siebert Oxidermo, Inc. v. Shields
| Decision Date | 18 January 1982 |
| Docket Number | No. 3-580A137,3-580A137 |
| Citation | 430 N.E.2d 401 |
| Parties | SIEBERT OXIDERMO, INC., Defendant-Appellant, v. Hershell David SHIELDS, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
The appellee, Shields, brought suit against Siebert Oxidermo, Inc. (the manufacturer) for personal injuries which allegedly resulted from Shield's exposure to the fumes given off from a paint manufactured by Siebert Oxidermo, Inc.
Summons was duly served. When the manufacturer failed to appear by the return date Shields moved for and secured a default. Upon Shields' request the court proceeded to hear evidence on damages and entered final judgment.
A few days later counsel employed by the manufacturer's insurance carrier discovered that a default judgment had been entered and promptly filed a TR 60(B)(1) motion to set the judgment aside. The trial court denied relief. It adhered to that position through the manufacturer's subsequent motion to reconsider and additional motions to set aside the judgment.
On appeal we originally affirmed by a memorandum decision. The basis for that ruling was, essentially, that the party contacted by the manufacturer to handle the matter was clearly the agent of the manufacturer. 1 Since no excuse, explanation or reason was given as to why the agent failed to forward the complaint and summons to the insurance carrier, the court could properly have concluded that no right to relief under TR 60(B) had been established.
In its petition for rehearing the manufacturer alleges, inter alia, that we failed to give a statement in writing deciding two substantial issues presented by it on appeal.
It first asserts that the trial court erred in failing to reconsider an apparent conflict of interest arising from the fact that the attorney who originally represented it in filing the motion to set aside the default judgment was employed by its insurance carrier under the defense clause contained in the policy. The total argument is that because the carrier would be relieved of liability (because it had not been timely notified of the suit) if the judgment were not set aside, we should believe that the carrier and the attorney somehow failed to present the manufacturer's case for relief from the judgment.
We consider the argument impertinent, if not scandalous. Without considering the respected reputation of the attorney involved, we point out that on a daily basis defense attorneys employed by insurance carriers on behalf of policyholders are called upon to deal with matters in litigation where the interests of the policyholder and the carrier do not fully coincide. Under such circumstances the attorney's duty is, of course, to the insured whom he has been employed to represent. In response the defense bar has exhibited no inability to fully comply with both the letter and spirit of Canon 5 of the Code of Professional Responsibility. If it were otherwise we suspect the desirability of requiring carriers to supply defense counsel would have long since disappeared as a term of the policy.
In the instant case we note that when the error leading to the default judgment was uncovered the appellant could have secured private counsel. It was apparently quite content with the attorney employed by the carrier. 2 Moreover, after the attorney withdrew, the manufacturer filed its motion to reconsider and its additional motions for relief which were considered by the court on the merits. We thus agree with the manufacturer's own assertion in its brief that its subsequent motion(s) corrected any deficiency which may have existed in the original.
Appellant also attacks the hearing on damages which resulted in judgment for $760,000, the amount prayed for in the complaint.
It first argues that it was entitled to notice of the hearing on damages even though, at the time, it had not appeared in the action. We disagree. Trial Rule 55(B) in pertinent part states:
"If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearing or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required." (Emphasis added)
Where the default is occasioned by a party's failure to appear, no notice to that party of an application for default is necessary. TR 55(B); Protective Ins. Co. v. Steuber (1977), Ind.App., 370 N.E.2d 406.
Under the language of the rule, where the damages prayed for in the complaint are certain and liquidated, no hearing may be necessary if the pleadings and exhibits establish the amount to be recovered. See Stewart v. Hicks (1979), Ind.App., 395 N.E.2d 308. Normal practice, however, usually includes, in the case of a defaulting defendant, placing plaintiff or its witness on the stand or furnishing the court an affidavit whereby the amount of the debt owing is made to appear. Such an ex parte hearing satisfies the...
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Leibowitz v. Moore
...long held that while a defendant's default admits liability, it does not admit the amount of damages. Siebert Oxidermo, Inc. v. Shields (on rehearing) (1981), Ind.App., 430 N.E.2d 401. What amount constitutes a reasonable attorney fee is a question of fact to be determined under the circums......
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...Judge Garrard alluded to the well established principles that a default admits liability but not damages, Siebert Oxidermo, Inc. v. Shields, (1981) Ind.App., 430 N.E.2d 401 (on rehearing) (transfer pending); and that what constitutes a reasonable attorney fee is a question of fact to be det......
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