944 N.E.2d 47
Ind. Ct. App.2011Background
- Love's suit seeks underinsured motorist benefits following a collision with Rogers; Omni insured Rogers, Allstate provided UIM coverage to Love.
- Allstate initially offers $25,000 to settle; Allstate advances $25,000 and pays Love's medical expenses ($74,189.59) but does not pay approximately $9,000 in dental bills.
- Pierce files UIM claim against Allstate; Allstate fails to appear before trial court; clerk enters default judgment against Allstate for $225,000 with a subsequent damages hearing scheduled.
- Dietrick becomes Allstate's appearance representative; No timely notice to Pierce before default; trial court denies motion to set aside default; Allstate appeals.
- Court concludes Pierce did not misconduct for failure to notify Dietrick; damages are unliquidated and require a hearing; proceedings are remanded for damages involvement.
- Final posture: default judgment affirmed in part; remanded for damages hearing; overall affirmed in part, reversed in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in refusing to set aside the default judgment | Love argues the court should set aside for misconduct under TR 60(B)(3) | Allstate contends Pierce's failure to notify Dietrick constitutes misconduct warranting relief | No abuse of discretion; no misconduct by Pierce established |
| Whether a hearing on damages was required for the unliquidated UIM award | Love argues damages can be determined without a further hearing | Allstate argues damages are unliquidated and require an evidentiary hearing | Damages are unliquidated; Allstate entitled to an evidentiary hearing on damages; remand for damages proceedings |
Key Cases Cited
- Smith v. Johnston, 711 N.E.2d 1259 (Ind. 1999) (misconduct requires notice to opposing counsel regardless of panel involvement)
- Whelchel v. Community Hospitals, 629 N.E.2d 900 (Ind. Ct. App. 1994) (abuse of discretion standard for Rule 60(B) reversals)
- Baxter v. State, 734 N.E.2d 642 (Ind. Ct. App. 2000) (must show meritorious defense in addition to relief from default)
- Johnston v. State Farm Mut. Auto. Ins., 667 N.E.2d 802 (Ind. Ct. App. 1996) (UIM damages are unliquidated and depend on evidence)
- Stewart v. Hicks, 395 N.E.2d 308 (Ind. Ct. App. 1979) (unliquidated damages allow a hearing after default)
- Green v. Karol, 344 N.E.2d 106 (Ind. App. 1976) (preference for merits decisions and fair opportunity to present case)
- Smith v. Johnston, 711 N.E.2d 1259 (Ind. 1999) (misconduct includes failure to communicate with counsel)