White v. Berryman

• Decision Date: 15 May 1992
• Docket Number: No. 20088,20088
• Parties: Mary E. WHITE, Plaintiff Below, Appellee, v. Everett BERRYMAN and the West Virginia Department of Transportation, Division of Highways, a West Virginia Governmental Entity, Defendants Below, Appellants.
• Court: West Virginia Supreme Court

Page 917

418 S.E.2d 917

187 W.Va. 323

Mary E. WHITE, Plaintiff Below, Appellee, v. Everett BERRYMAN and the West Virginia Department of Transportation, Division of Highways, a West Virginia Governmental Entity, Defendants Below, Appellants.

No. 20088.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1992.

Decided May 15, 1992.

Syllabus by the Court

1. The service of process provisions of Rule 4(d)(6)(D) of the West Virginia Rules of Civil Procedure can be used on domestic public corporations, which include state agencies, that are not otherwise covered in Rule 4(d)(6)(A) through (C) of the Rules of Civil Procedure.

2. Under W.Va.Code, 31-1-15, the Secretary of State is the authorized attorney-in-fact to accept service of process on public corporations and agencies pursuant to the provisions of Rule 4(d)(6)(D) of the West Virginia Rules of Civil Procedure.

3. Service of process on a secretarial employee in a public corporation or agency is insufficient to constitute service on the public corporation or agency absent a clear showing that such individual had been delegated by the corporation or agency to accept process.

4. "When a court undertakes to analyze a Rule 60(b) motion on grounds (1), (2), (3), or (6) of the Rule, it must determine first if the motion has been filed within eight months after the judgment was entered and then determine, under all the circumstances, if it was filed within a reasonable time." Syllabus point 2, Savas v. Savas, 181 W.Va. 316, 382 S.E.2d 510 (1989).

5. "In determining whether a default judgment should be entered in the face of a Rule 6(b) motion or vacated upon a Rule 60(b) motion, the trial court should consider: (1) The degree of prejudice suffered by the plaintiff from the delay in answering; (2) the presence of material issues of fact and meritorious defenses; (3) the significance of the interests at stake; and (4) the degree of intransigence on the part of the defaulting party." Syllabus point 3, Parsons v. Consolidated Gas Supply Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979).

6. "Appellate review of the propriety of a default judgment focuses on the issue of whether the trial court abused its discretion in entering the default judgment." Syllabus point 3, Hinerman v. Levin, 172 W.Va. 777, 310 S.E.2d 843 (1983).

7. " 'A motion to vacate a default judgment is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.' Syl. pt. 3, Intercity Realty Co. v. Gibson, 154 W.Va. 369, 175 S.E.2d 452 (1970)." Syllabus point 4, Hinerman v. Levin, 172 W.Va. 777, 310 S.E.2d 843 (1983).

8. An attorney's negligence will not serve as the basis for setting aside a default judgment on grounds of "excusable neglect."

Robert P. Fitzsimmons, William E. Parsons, II, Fitzsimmons & Parsons, L.C., Joseph J. John, Louis J. John, John & John, Wheeling, for appellee.

John M. Wilson, Daniel C. Cooper, Steptoe & Johnson, Clarksburg, for appellants.

BROTHERTON, Justice:

The appellants, Everett Berryman and the West Virginia Department of Transportation, Division of Highways, appeal from a December 13, 1990, order of the Circuit Court of Brooke County denying their motion to set aside default judgments which were entered against them by that court on June 21 and July 6, 1990.

On September 19, 1989, the appellee, Mary White, was injured when her automobile was struck by a large steam roller driven by Berryman. The roller was being unloaded by a Division of Highways crew when its brakes failed. ¹ The appellee suffered a ruptured disc, which eventually required surgery.

Attorneys for the appellee initially submitted a settlement brochure to the State's insurer, CNA Insurance Company, proposing a $95,000 settlement to the appellee for the injuries she suffered in the accident. Included with the settlement brochure was a copy of the complaint which the appellee intended to file in circuit court if a settlement was not reached. There were several subsequent conversations between CNA adjusters and one of the appellee's attorneys, Joseph J. John, requesting additional claim information. However, the insurance company made no settlement offer until May 7, 1990, when CNA adjuster Nancy Moses ² responded with an offer of $3,600. The appellee considered this an inadequate offer, and filed suit in the Circuit Court of Brooke County on May 15, 1990, demanding judgment against Berryman and the West Virginia Department of Transportation, Division of Highways, in an amount in excess of $200,000 as compensatory damages.

Berryman received personal service via a Brooke County deputy sheriff, who served Berryman's wife. She, in turn, delivered the documents to Berryman on the evening of May 15, 1990. Initially, the appellee requested that the West Virginia Department of Transportation, Division of Highways, be served through the Secretary of State. However, by letter dated May 18, 1990, the Brooke County Circuit Clerk's office advised appellee's counsel that the Secretary of State was no longer authorized to accept service on behalf of state agencies. ³ Thereafter, the Sheriff of Kanawha County was directed to serve the complaint, summons, interrogatories, and requests for production of documents on Arthur L. Gleason, Jr., Supersecretary of the Department of Transportation. A deputy sheriff delivered these documents to Kim Miller, Gleason's secretary, on June 4, 1990. Ms. Miller forwarded them to the Administrative Assistant of the Department of Transportation, Phyllis Holmes, who placed them on Supersecretary Gleason's desk.

The documents were examined by Gleason on June 5, 1990. The envelope was marked "Legal Documents," and the summons was marked "ORIGINAL" in large boldface black print. The summons warned that a default judgment would be taken if no answer or other pleading was filed within thirty days.

On June 21, 1990, and July 6, 1990, default judgments for sums uncertain were entered against Berryman and the West Virginia Department of Transportation, Division of Highways, respectively. ⁴ In an affidavit, Berryman later claimed that, based upon advice he received from his attorney, Ron Tucker, who was representing him in another matter, "he believed that the documents he had received did not require a response on his part since he assumed that he would be defended by an attorney representing the State Department of Transportation." The appellants' counsel categorizes Berryman's inaction as being the result of "misunderstanding, mistake or inadequate advice." We note, however, that the appellants did not introduce either an affidavit or testimony from Ron Tucker to corroborate Berryman as to exactly what advice was offered by Tucker.

To explain its failure to respond to the summons and complaint, the Department of Transportation states that when Supersecretary Gleason first noticed the legal documents on his desk on June 5, 1990, he believed they were simply copies of a summons and complaint which had been directed to his office for informational purposes, because he did not normally receive the original pleadings when the Department of Transportation was served with process. The appellants state that on the two previous occasions when the newly formed Department of Transportation had been served with process, the originals were directed to the Department's legal division: "Consequently, Secretary Gleason mistakenly assumed that the matter was being handled by the legal department and did nothing to assure the appropriate action would be taken to defend the suit. Secretary Gleason did not notify CNA that a suit had been filed."

Unaware that a suit had been filed and that default judgments had been entered, CNA claims representative, R. Alan Mellott, ⁵ sent a letter to Mr. John on July 18, 1990, in which he inquired about the outstanding settlement offer. By letter dated July 20, 1990, and received by CNA on July 24, 1990, Mr. John informed Mr. Mellott as follows: "Please be advised that the $3,600 offer of settlement was rejected per the telephone conference with Ms. Moses and CNA was advised that we would proceed accordingly." (Emphasis added.) Mr. John did not mention the entry of the default judgment orders or the hearing on the writ of inquiry to determine damages which was scheduled for July 25, 1990.

However, Mr. Mellott contacted Mr. John once again on August 13, 1990. At this time, Mr. John told him that the appellee would settle the claim for $75,000, and he also told Mellott that default judgments had been entered in the case. According to the appellants, this was the first time a CNA representative was notified about the lawsuit and the default judgments, and they were still unaware of the pending hearing on the writ of inquiry, which had been rescheduled and was now set for August 23, 1990.

On August 16, 1990, Mr. Mellott contacted Wheeling attorney Paul T. Tucker and asked him to investigate the matter further. Mr. Tucker claims that he was able to confirm through the circuit clerk's office only that default judgment orders had been entered and that a hearing on the writ of inquiry would be scheduled. However, the appellee states that the Brooke County Courthouse file contained not only the default judgment order, but also an order scheduling the hearing on the writ of inquiry, which had originally been set for July 25, 1990, but was continued to August 23, 1990. ⁶

On August 17, 1990, Mr. Tucker contacted Mr. Mellott and advised him of the default judgment orders and "that a hearing on Writ of Inquiry would be scheduled in the matter." Mr. Mellott subsequently delivered the claim file to Tucker so that he could represent the appellants. However, according to the appellee, "no notice of appearance or any other type of notice indicating an attorney's representation was ever filed and/or served and/or mentioned until the appellants filed a ...