Cales v. Wills
569 S.E.2d 479
W. Va.
2002
Check Treatment

*1 232 Justice, suggesting the sher-

MсGRAW, dissenting: law based on evidence department dispatched approximately iffs 2002) (Filed July towing of all calls for services. The 50% majority that the evi- with the disagree I during plaintiffs evidence indicated not sufficient in this case is presented dence period, ser- four-year particular two wrecker to a genuine issue as material produce a 85% of the calls from the vices received fact. the four department while sheriffs Inc., v. 194 Precision In Williams Coil remaining towing companies 15% divided 52, 459 S.E.2d 329 Justice jury among court could them. The held “the “This Court will reverse sum- Cleckley noted easily determine defendants restrained find, reviewing after mary judgment if we tow and that competition for services... record, genuine issue material the entire substantially injured competition in restraint moving party if is not or facts exists legitimate market little busi- judgment as a matter of law. In entitled justification.” Id. 1075. at ness doubt, the course substantial cases safer Although recognize summary I deny and to the motion action is litigаtion promotes tool that as valuable added) (emphasis at tnal.” Id. judicial economy, jury it is no substitute for It was further stated that “we 329. trial, only proper and should be used any permissible inference must draw inquiry “[T]he circumstances. underlying in the most favorable facts presents must make is ‘whether the evidence opposing motion.. .as light require disagreement submis- sufficient determinations, weighing credibility it is jury to a or whether so one-sided sion evidence, drawing of legitimate infer- prevail that one must a matter of functions, jury from the facts are ences Williams, law.’” v. judge.” (quoting Anderson Lib- those of a present S.E.2d 329. The evidence here is Inc., 242, 255, 106 erty Lobby, 477 U.S. S.Ct. one-sided, therefore, respectfully I not so (1986)). 2505, 2513, Id. 91 L.Ed.2d dissent. case, I In instant believe Allstate presented sufficient evidence Wrecker put

support forth its claim. The evidence significantly

indicates Abbott’s received higher calls from percentage of Service, Emergency appears to contra- Bobby CALES, Below, Appellee, Plaintiff Department’s self-pro- dict the Sheriffs claimed, practice calling longstanding Company Fire National Union Insurance towing geographically service was whichever Pittsburgh, Pa., Appellant, Of Additionally, closer. further evidence v. City challenging the Allstate submitted WILLS, Mark Defendant Steven city contention that the alternat- St. Albans’ Below, Appellee. companies. City ed calls the two records obtained Allstate Wrecker indi- No. 30109. many cated almost twice Abbott’s received Supreme Appeals of Court of alone calls as Allstate. This evidence could Virginia. West jury appellees lead a to find that reasonable have significant control over the relevant May Submitted 2002. therefore, County, market in Kanawha 28, 2002. Decided June case should not have been dismissed Concurring Opinion of Justice summary judgment. July Albright Fields, al., F.Supp. et Barrett Dissenting Concurring Opinion (D.Kan.1996), claim was where a July Justice McGraw brought county and other sheriff department alleging conspiracy to officials business,

restrain court dis wrecker

missed a motion as a matter of

when was performing he assaulted while his police City duties as a officer for the Specifically, Hinton. Mr. Cales was assault- Wills, appellee/defendant ed Mark Steven (hereinafter below referred to as “Mr. Wills”), after he observed Mr. Wills run a stop sign and stop then executed a traffic injuries Mr. Wills’ vehicle. As result of the received, he Cales filed a lawsuit 19,1998. Mr. Wills on October carrier, *4 Subsequently, Mr. Wills’ insurance (hereinafter Dairyland Company Insurance “Dairyland”), separate referred to as a filed declaratory judgment seeking ruling action injuries whether the sustained Mr. Cales involved Mr. Wills’ vehicle such that Johnson, Ramey, Steptoe Ancil G. & they fall liability coverage would within the Charleston, Appellant, National Union provided under Mr. Wills’ automobile insur- Company. Fire Insurance policy. ance The circuit court concluded Hellems, E. Law E. Kent Office of Kent injuries that Mr. Cales’ did in fact from arise Hellems, Hinton, Jones, Benny Law G. Office operation of Mr. Wills’ vehicle. As a Jones, Benny Beckley, Appellee, G. ruling, Dairyland result of this оffered to Bobby Cales. pay policy Mr. full Cales the limit of Mr. liability coverage, equaled Wills’ DAVIS, Chief Justice. $20,000.00. Additionally, Dairyland sought a Company, Fire Union Insurance of subrogation City waiver of Hin- (hereinafter appellant/defendant below re- ton’s underinsured motorist insurance carri- “National”), appeals ferred to as from an er, National. order the Circuit Court of Summers Coun- ty denying National’s motion to set aside Although Dairyland paid to Mr. Cales the judgment. default and default The circuit limits of Mr. policy, against Wills’ the case court had awarded a and default proceeded Mr. Wills nevertheless to trial for Cales, Bobby appel- in favor of liability a determination of both and dam- (hereinafter lee/plaintiff below referred to as 24, ages. A trial bench was held on March Cales”), National, against “Mr. and 2000,1 represented. but National was not On $113,734.19, plus post-judgment amount of 14, 1999, September copy a summons and a assigned interest. National has several er- complaint against оf the filed Mr. Wills had rors to the circuit court’s of its motion denial Secretary been on judgment. to set aside the served of State on default and default reviewing After and the briefs record behalf of National. National was served ease, entry we affirm the circuit court’s of process through Secretary of State’s of- However, liability. default as to we reverse 23, However, September fice on Na- judgment awarding of the default complaint. tional failed to answer the Also damages. 14, 1999, September on Mr. Cales notified Inc., Claims, representative, National’s AIG

I. request- the lawsuit Mr. Wills and subrogation against FACTUAL AND ed a Mr. PROCEDURAL waiver Wills’ 15, HISTORY September insurer. In a letter dated 18, 1997, responded request AIG to the waiver On Mr. October Cales sustained injuries, including leg, by indicating serious fractured left that Mr. Cales could 1. Mr. Wills did not attend the trial he nor counsel. personally represented by 60(b) of the West Rules against Mr. Wills under the the claim

settle Procedure,2 appropriate. aside the default and de- terms dеemed set It is that “[a] fault well-settled calling of witnesses Prior to the pursuant motion to vacate made trial, the court specifically advised Mr. Cales P., 60(b), W. Va. R.C. is addressed to to Rule had failed that National was the sound discretion of the court complaint. Accord- to file answer ruling will not be court’s on ‍‌‌​​‌‌‌‌‌‌​‌‌​​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌‌‌‌‌​​​​‌‌​‌‌‍motion court ruled that National ingly, the circuit appeal showing called several unless there is was in default. Mr. Cales then disturbed testify Syl. pt. on the issues witnesses of such discretion.” abuse pre- damages. After the evidence was Shelton, 157 W.Va. Toler v. sented, the circuit court returned verdict (1974). Syl. pt. also See Jackson Gen. favor of Mr. Cales assessed Davis, Hosp. v. 464 S.E.2d 593 $133,734.19. circuit court the amount of The (1995) (same). Similarly, “[ajppellate review that, ruled because Wills’ insurance then propriety of a focus- policy had limits carrier tendered trial es on the issue whether the National, $20,000.00, as the underinsured mo- entering its.discretion the default abused provider, was liable to Mr. torist insurаnce Levin, judgment.” Syl. pt. Hinerman v. damages. for the balance of the Cales *5 ruling, circuit court accordance with this Gibson, Intercity Realty Syl. pt. v. also Co. judgment against imposed a default (1970) (“A W.Va. $113,734.19,plus post-judg- in the amount of judgment motion to vacate a default is ad- ment interest. dressed to the sound discretion of the court 13, 2000, September On National moved ruling will and the court’s on such motion both the default and the default set aside appeal be disturbed on unless there is a 3, 2001, May judgment. By entered order discretion.”). showing of an abuse of such circuit court denied National’s motion. appeal to this “[o]n We have also held ruling ap- now It is from this that National appellant Court bears the burden peals.- in showing proceed- that there was error ings resulting judgment in below II. complains, presumptions being all which he OF REVIEW STANDARD proceedings in favor of the correctness of the Syl. in judgment and and of the trial court.” case, In we are asked review Coiner, pt. Perdue v. ruling circuit court’s on Natiоnal’s mo tion, S.E.2d 657 With these considerations which was filed accordance Rule 60(b) (6) Virginia any justifying application; other 2. Rule of the West Rules of Civil or reason judgment. operation Procedure states: relief from the The be made within a reasonable motion shall time, inadvertence; Mistakes; neglect; excusable (2), (3) (1), and for reasons and not more cause; evidence; newly unavoidable fraud, discovered order, year judgment, than one after the or upon etc.—On motion terms as proceeding was entered or taken. A motion just, are the court relieve a or a (b) under this subdivision does not affect the party’s legal representative ment, order, judg- from a final finality judgment suspend operation. of a or proceeding following or for power This rule does not limit the of a court to (1) Mistake, inadvertence, surprise, reasons: independent entertain an action to relieve a cause; (2) neglect, excusable or unavoidable judgment, рroceeding, from a order or or by newly dili- discovered evidence which due statutory grant relief in the same action to a gence could not have been in time discovered (3) 59(b); defendant not served with a summons to move for a new trial under Rule action, judgment (whether or to set aside fraud fraud heretofore denominated intrin- nobis, extrinsic), upon the court. Writs of coram coram misrepresentation, sic or or other vobis, petitions rehearing, of review parly; judg- bills misconduct of adverse review, void; (5) judgment and bills in the nature of bill of abolished, are ment is has been satis- prior judg- released, fied, procedure obtaining discharged, and the or or judgment relief from a shall be motion as ment which it is based has been reversed vacated, prescribed independent longer equita- in these rules or otherwise or it is no judgment prospective ble that the have action. should mind, directly address the The issues we issues described above involve 55(b) Virginia Rule before us. the West Rules of Civil Procedure,3 expressly addresses de- 55(b) judgments. III. fault contains differ- procedural requirements ent for default DISCUSSION judgments awarding certain damages, sum appeal involves a default as to W. Va. R. Civ. P. Rule and those liability judgment as to and a default awarding types damages, see W. Va. damages. Coury Tsapis, In v. issue R. P. Civ. Rule For the (1983), recog 304 S.E.2d we instant proceeding, we are concerned nized the distinction between default and provisions with the differences in these two observed, Coury we they a defaulting party. relate to hold, “a default we now relates to Consequently, pause briefly identify judgment the issue of a default requirements the different notice of these after have been ascertained.” occurs two rulés. 172 W.Va. at at 10. There involving addresses actions fore, we will discuss the damages that are “sum certain or ... a separately entered in this case the de which can computation sum be made cer- liability. fault as to tain,” and instructs the court to “direct the judgment by thе clerk” in such Judgment Awarding Damages A. Default held, previously circumstances.4 We have respect With to the default syllabus point Coury Tsapis, 1 of National, awarding damages against we are S.E.2d 7 asked to determine the circuit court whether of the West Rules of entering erred when Nation- Procedure relates eases where the *6 any al had of proceedings not received notice amount sued for is a certain sum or which damages against related to the award of it. by can computation. be rendered certain argues judgment the default Upon category cases, a default in this of should to the lack be set aside due of notice. judgment the court can a only enter Cales, hand, on the other contends that liability but also to the amount due. (1) National was not entitled notice as 55(b)(1) only failed to applies make the civil Because Rule when the action; certain, damages due to the nature of the are a sum or an amount awardеd, damages requirement by calculation, was no which can be there made certain clearly of evidentiary notice National. there is no for an need 55(b) action, sought appeared party 3. Rule is in the states: has the (or, (b) appearing by party's by representative, if Judgment. Judgment may the — representative) entered served as follows: shall be with written (1) By plaintiff’s the clerk.—When the claim application judgment notice of the at least against a for a sum certain defendant is or for days prior hearing applica- on to the by computation a sum which can be made If, tion. in order to enable the court enter certain, request upon plaintiff of the court the effect, judgment carry or to it into it is neces- affidavit of amount due shall sary to take or to an account determine the entry judgment by direct the of clerk for damages amount of or to establish the truth of defendant, against amount and costs if any by averment or to make an evidence inves- the defendant defaulted for has been failure to matter, tigation may the court infant, appear incompetent per- and is not an hearings conduct such or order such refer- son, or convict. necessary. ences as it deems (2) By par- all other court.—In cases by ty judgment apply entitled to a default shall however, noted, entry It should be that the therefor; judgment by to the court but no judgment by may only such a the clerk be made infant, against an default shall be entered competent person, in- infant, defaulting party incompe- if the "an is not represent- or convict unless person, tent 55(b)(1)- W. Va. or convict.” R. Civ. P. guardian, guardian by ed in the action litem, committee, a ad of Rule For the full text conservator, curator, or oth- supra note 3. representative appeared er has therein. who parly judgment by against If the whom damages. party against the amount tered a who has defaulted hearing to ascertain prior party. to that Family fact in recognized this Farm We Co., at at Mut. Ins. hand, Rule, on the other ad we stated wherein entry judgment a default dresses by moving damages sought party if the damages where amount of is not sum judgment are for a cer- a default sum circumstances, certain. these tri “[a] Under tain, which can be or an amount rendered required hearing al court is hold order calculation, evidentiary no hear- certain damages.” amount Cleck ascertain the necessary cir- ing damages is and the on ley, importantly, supra, at 917. More may proceed to enter a “default cuit court 55(b)(2) requires party expressly notice to on all in the judgment” issues case. sought, against judgment a default is whom added). D. (Emphasis See also Franklin provided party appeared that the has Palmer, Cleckley, Louis Robin J. Davis & J. regard, “[i]f action. In this the rule states on Litigation Handbook West party against judgment by whom (2002) (discuss- action, Procedure 914 Rules Civil appeared sought is has in the stating ing (or, “[i]f the dam- appearing by representative, if sought party moving ages for a de- party’s representative) be served with shall certain, judgment a sum or an fault are for application written notice of the which can amount be rendered certain days prior hearing on such least 3 calculation, evidentiary no hearing words, on dam- application.” In other notice is re necessary trial ages is and the court quired is before there all proceed to a default enter hearing unliquidated to determine omitted)). (footnote It issues the case.” type who made some follows, therefore, no that because there is proceeding. Syl. pt. a hearing need for to determine amount Family Farm Mut. Ins. v. Thorn Co. Lum damages, no there likewise is requirement ber defaulting party. (‘Where for notice a default has been ob Virgi tained the West 55(b) stated, presently As our rule is Procedure, nia Rules of Civil a trial is nearly counterpart. identical to its federal required hearing to hold a to asсer order similarly requirement There of notice plaintiffs tain of damages the amount if the defaulting party prior of a unliquidated damages.”); claim involves judgment pursuant to Rule *7 Co., v. Hall’s Motor Transit Daniels 157 See, e.g., Rules of Procedure. Federal Civil 865, 412, 863, 205 413 W.Va. S.E.2d Specialists, Compu Mail Inc. v. Direct Eclat (“The provide purpose of this is to Rule (9th Techs., Inc., 685, terized 840 F.2d 690 party with a timely opportunity defendant Cir.1988) (acknowledging that is not notice urge against entry judg reasons of default 55(b)(1)); necessary under Rule Port-Wide ment.”). express In accordance with lan Co., Container Inc. v. Maint. Interstate 55(b)(2) guage foregoing of Rule and the (3d Cir.1971) Corp., (per 440 F.2d 1196 authorities, pursuant hold we Rule curiam) (recognizing, implicitly, that notice is 55(b)(2) Virginia of the West Rules of Civil 55(b)(1)); required by Rule Menier v. Procedure, damages sought by when the (5th States, 405 F.2d United n. plaintiff damages involve than a sum Cir.1968) 55(b)(1) (stating “[u]nder Rule by computation certain or a sum which can judgment for a can sum certain be entered certain, party who defaulting made has against а defaulted the clerk defendant appeared provided in the action must be notice”). foregoing Based hearing notice of the to determine the discussion, expressly hold that generally, we unliquidated damages amount as 55(b)(1) Virginia under Rule the West sessed. Procedure, of Civil when Rules by plaintiff sought Having requirements involve a sum certain reviewed notice 55(b)(1) (2), by computation a sum which can be made Rules we certain, judgement by may provide be en- Na- consider whether failure required tional with notice the instant case addressed issue of appearance under 55(b)(2) judgment against Rule as follows: the default it be over- appli- turned. Because our discussion party aWhere defendant files a written 55(b)(2) judice cation of Rule sub the ease stipulation extending filing for time contains material that is relevant under- answer, or in pending indicates interest standing application our examination into the litigation against by any him other written facts, instant begin to the we matter оf signed by record the court file 55(b)(2). analysis oui’ with Rule counsel, party, representa- his or his tive, party appeared” “has within the 55(b)(2). 1. Rule is While it clear that contemplation of Rule R.C.P. defaulting party is application is entitled to notice of an for hearing entitled to notice of a to determine unliquidated damages, such notice is re- Although Daniels focused on communications quired only defaulting party when the has record, generally found it is acknowl appeared in the action. Va. R. See W. Civ. edged appearance “[a]n [of a in a 55(b)(2) (stating, P. part, in relevant “[i]f the litigation] for of Rule party against judgment by whom default is only of consist letters or conversations be action, sought appeared parties.” Cleckley, supra, tween the at 916 (or, by representative, if appearing par- 55(b)(2)) omitted).7 (footnote (discussing Rule ty’s representative) shall be served writ- also, Corp. Aktienge H.F. See Livermore v. ten application notice Loeрfe, Gebruder 432 F.2d 689 sellschaft days prior hearing least 3 on such (D.C.Cir.1970) curiam) (per (concluding that added)).5 application.” (emphasis parties in letters between normal effort to argues appearance it that made as con- dispute pur was an resolve 55(b)(2), and, templated by thus, 55(b)(2)); FROF, poses of Rule Inc. v. Har given hearing should have been notice of the ris, (E.D.Pa.1988) F.Supp. (vacating damages.6 determine default due to lack of based recognized This Court has upon appearance in single form of a letter action,’ ‘appeared “[t]he pur term attorney plaintiffs from defendant’s attor poses of a default Dalminter, Edwards, ney); Inc. Jessie v. of the West Rules of Inc., (S.D.Tex.1961) (finding 27 F.R.D. 491 Procedure, quite appear different plaintiff appear defendant’s letter was an ance). purposes!)]” ance for other Colonial Ins. generally, Co. 10A Charles A. Barrett, Kane, n. Mary 542 Wright, Kay Arthur R. Miller & 872 n. 2 single In the Federal 3d Practice Procedure: Civil syllabus (1998) (“[I]n § of Daniels v. Hall’s Motor Transit аt 45 order to ensure an ‍‌‌​​‌‌‌‌‌‌​‌‌​​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌‌‌‌‌​​​​‌‌​‌‌‍opportunity defendant to defend supra satisfying text For full of Rule note oral communication as requirement Cleck- of Rule Franklin D. *8 litigants 6. We have cautioned that a Rule Palmer, Jr., ley, Litiga Robin J. Davis & Louis J. 55(b)(2) issue must be raised at the trial court Virginia tion Handbook on West Rules of Syl. Marquez, pt. level. See Hartwell v. 201 (2002). However, 75 au Procedure 915 n. the ("The W.Va. S.E.2d failure to that, "[i]n note view of the thors broad provide party against judgment a whom of de- approach adopted by Supreme the Court liberal sought application fault is with of notice the action,' phrase ‘appeared for the 55(b)(2) judgment required by as Rule of W. Family of case Farm Mut. Ins. Co. v. Thorn Va. of Civil Rules Procedure renders the subse- Lumber voidable, quent judgement default but such (1998), position it is doubtful taken judgement Accordingly, is not of void. issue (citations Intercity Realty good still is law.” Id. properly appeal lack of is notice not raised on omitted). agree We with this observation and below."). In unless it was first raised the instant language Intercity Realty case, disapprove of the properly National raised the Rule suggesting that communication not sat oral does issue below. 55(b)(2). isfy appearance requirement of Rule point The authors of this handbook out that in Gibson, Intercity Realty Co. v. disapproved of S.E.2d this Court quirement under was unneces- judgment], Rule [for default

plaintiffs application above, pursuant sary. As reflected Rule try find that has usually will there court a defendant, party who has defaulted notice to a by which appearance an been required as is when default not requiring that notice of the the effect of (footnote damages sought are a sum cer- involve given.” a default be application for meaning explained tain. This Court omitted)). authorities, we these Based syllabus point 3 of Farm “sum certain” in requirement that for hold as Family Mutual Insurance Co. follows: hearing defaulting party prior to a to a notice default, term “sum certain” under West Vir- pursuant to Rule The on Procedure, ginia Rules of Civil Procedure Rule of Civil Rules the West contemplates situation where the by defaulting an “appearance” otherwise an disputed, reasonably amount due cannot be may communication consist amount, respect ascer- is settled opposing party that demonstrates either by agreed upon parties, or tained and pending litigation, or actual an interest by operation law. A claim is not fixed litigation. communication The notice merely for a “sum certain” because the form. in written or oral be made specific amount claim is stated as dollar appearance bases on the its complaint, or affi- complaint, in a verified AIG, representative, Mr.' by sent letter davit. 15, 1999. Mr. September Cales Cales representative was contends that AIG not therefore, National; parties dispute National made The do not prior entry damages sought complaint him to the in Mr. Calеs’ were communication unliquidated and not certain. damages a sum contention However, ver Mr. contends that specifi AIG Cales merit. The letter forwarded Services, against Mr. Wills dict returned cally Claim Inc. is the stated: “AIG damages converted the to sum certain that representative of National Union authorized imposed upon National without no could be Company Pittsburgh, Insurance Fire 55(b)(1). that, tice under Consequently, must PA[.]” we conclude 55(b)(2) purposes, against date for the bench trial On the set was made National. Wills, Mr. Mr. made an oral motion for Cales liability against National. The National made Because we have found that granted motion. Mr. trial court Cales contemplated proceeded present then evidence 55(b)(2), it have National should follows liability and dam- bench trial to determine proceeding notice of the at which received ages against Mr. The trial court ren- Wills. addressed, judgment the default was assessing liability against Mr. dered a verdict was, judgеment the default provided that making a determination as to Wills as well fact, pursuant to Rule Mr. awarded damages.9 Subsequently, the trial court is- argues judgment that the default was Cales fact findings sued and conclusions written 55(b)(2), but was not entered under Rule in which of law granted pursuant to Rule against were awarded National. Cales requirement. does include notice Con- argues procedure to this that this Court re- sequently, deciding that the default before damage in a sum amount. sulted certain due aside should set Consequently, judg- of a default National, con- absence of notice must prior ment National without properly sider whether the *9 proper. 55(b)(1). entered under Rule 55(b)(1). contrast, argues argues 2. In National that fun Rule Mr. Cales requires principles process damages awarded under damental of due the default were 55(b)(1).8 Therefore, reject procedure used in Rule the notice re- this Court noted, 55(b)(1), supra previously we neither Mr. Wills nor 8. For text Rule note 3. As present were at the bеnch trial. his counsel opposition this ease to obtain a sum certain when the any determined without as to them initially sought unliquidated. 52(b)(2) damages validity. were is not what This Rule con- agree adopt We with National. To Mr. Cales templates. Consequently, we hold when 55(b)(1) interpretation involved, of Rule would thwart unliquidated damages plaintiff are a 55(b)(2). underlying purpose of Rule procedure must utilize the obtaining default damages controlling A principle of Rule Thus, against a defaulting party. plaintiff a providing is that of notice and an may damage not a award use obtained opportunity unliquidated to be heard before against a at an tortfeasor uncontested trial as damages may against a be assessed default obtaining the basis damages default ing party an appearance. who has made against defaulting a defendant under Rule 55(b)(2) goes accept any so far as to of the West Rules of Civil type informal communication Procedure.10 litigants as sufficient to an “ap constitute Thus, pearance.” In defaulting foregoing holding, accordance with the party must be given Mr. hearing damage notice of the Cales could not determine use award long damages so obtained against he or she has met the Mr. as the Wills basis for negligible making imposing an appearance. damages against burden default National point critical Consequently, because informal com under Rule as a re- litigants, munication between generally having sult of National made prevent entry will purpose not of default for the liabili ty, require defaulting will given was proceeding be entitled to notice of the unliquidated damages may damages. notice obtain default be Insofar as notice before generally given assessed. 10A was not required Charles Alan National as al., Wright et Federal Practice and Proce Rule we must reverse and set aside (“[I]t § judgment damages. dure: Civil 3d must be of default as to an appearance, remembered thаt Liability B. Default Determination of merits, attempt further defend will National next contends that the keep being not from held entry of default as to should be set defend; plead for failure to or otherwise aside view the factors established in merely special judi activates the Supply Corp., Parsons Consolidated Gas protections cial provided review in the rule.” S.E.2d In (footnote omitted)). Parsows, explained that factors Moreover, determining judg contem considered whether plates “(1) proceeding adversarial wherein a ment default should be vacated are: defaulting vigorously degree prejudice defendant chal The suffered (2) lenge damages the amount of plaintiff. plaintiff delay answering; In proceeding, presence the instant Wills and his of material issues of fact and meri (3) defenses; did during significance counsel not attend the bench trial torious of the stake; which damages degree were determined. es interests at sence, intransigence defaulting the amount of part were on the ultimately party.” Syl. pt. part. Additionally, assessed National were opinion agree The decision reached in this is consis- While we with Mr. he Cales that could tent with our decision in State ex rel. Motorists judgment directly against have obtained Na- Broadwater, Mutual Insurance Co. v. Broadwater, he tional under Instead, chose not to do so. (1994). Although proce- proceeded Mr. Cales under our default dure used in Broadwater obtain a Consequently, rule. he is bound to against a defendant underinsured motorist insur- requirements comply with the of that rule. We ance carrier was similar that of the instant beyond prepared are not to extend Broadwater case, Broadwater did not involve the spare limited in order to Mr. Cales the context judgment. primary presented The issue fulfilling procedural obligations burden of in Broadwater was whether obtaining associated with directly against could rendered the insurance carrier rather than the We tortfeasor. so held in Broadwater. *10 defenses, satisfy necessity do Parsons’ the defenses “there is Parsons See, e.g., rel. requirement. second State ex or cause to unavoidable excusable show some Am., Parsons, Local Mine Workers Union answering.” United delay in explain the 289, Waters, 299, 489 1938 v. 200 W.Va. 471, at 762. will at 256 S.E.2d We 163 W.Va. (“There (1997) is no reason fac- S.E.2d analyze separately each Parsons petitioners’ juncture that the conclude at tors. meritorious.”). are not defenses prejudice. degree initial The 1. The significance at 3. of the interests The is a determination inquiry under Parsons Parsons, third factor of stake. Under the if to Mr. Cales degree prejudice at the interests stake we must examine is vacated. National damages litigation. The default entered has failed to show that Mr. Cales contends aside, National, which we have set any prejudice from a would suffer that he $113,734.19,plus post- were the amount judgment of as to aside of the setting Obviously, potential intеrest. agree. liability. We significant at in this case are stake Mr. shown is that set All that Cales has third factor is also satis- and therefore the ting of default aside the Parsons, See, e.g., 163 W.Va. at fied. delay in liability would mean further obtain “monetary (noting that 256 S.E.2d injuries. ing compensation for his There full $35,000.00, ... damages in the amount of suggestion by no Mr. that has Cales been insignificant”). ... [are] not testimony lost. or witness would be evidence degree intransigence 4. The One, Inc., See, v. Channel e.g., Cook party. defaulting Under Parsons’s fourth (2001) (per cu factor, obligated de we are to examine the riam) (finding prejudice). no intransigence by gree respond National presence of material issues The ing complaint. This court has ob defenses. fact meritorious The second intransigence on served “that evidence of under Parsons is factor to considered part defaulting party of a should be has that material National shown whether heavily determining weighed against him in fact meritorious defenses exist. issuеs of propriety judgment.” of a default Hiner explained previously that this Court has man, 172 W.Va. at 310 S.E.2d at 849. to determine whether “there is factor seeks The this case shows National record ... a result believe that different reason process by actually served the Sec one obtained would have followed from the retary September office on of State’s Levin, 172 full trial.” Hinerman v. from a During period six month 777, 783-84, 310 S.E.2d trial of service on National date 24, 2000, failed on Mai’ch National to either presented

National two has defenses complaint, or file answer to the file it insists would result a different outcome. declaratory separate judgment action con First, National that Mr. contends Cales liability. testing intransigence find this We coverage to underinsurance See, entitled significant. e.g., Lee v. Gentle City policy of Hinton be- Club, Inc., issued men’s curiam) compensation cause he received workers’ (per (affirming injuries sus- benefits as result he by plaintiff seven months obtained Secоnd, argues filed). National that Mr. tained. complaint after motorist Cales is not entitled underinsured un- 5. The existence of excusable or injured coverage he was not because avoidable final consider- cause. Under the maintenance, ownership, result of his or use Parsons, required by defaulting ation vehicle, injuries aof motor since the were must show some excusable unavoidable after Mr. received Cales and Wills exist- delay answering explain cause to respective ed them vehicles. complaint. Mr. contends Cales no or unavoidable Although make comment on wheth- offered excusable agree. National prevail primary er National cause. We contends could two *11 complaint did not an answer ‍‌‌​​‌‌‌‌‌‌​‌‌​​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌‌‌‌‌​​​​‌‌​‌‌‍to the file be- IV. party.

cause it was not named as a argument by National has no merit. CONCLUSION 33-6-31(d) We affirm entry the circuit § court’s

Under W. Va.Code de- (1998) fault liability against as to (Repl.Vol.2000), an in National. underinsured We reverse the of default right plеad damages, surance carrier has “the file and remand ings hearing, pursuant this case for a and to take action allowable owner, to Rule of the West operator, law in the name of or Rules of or both, Procedure, ... proper underinsured motor determine the vehicle amount of explained against or in its own name.” This Court in be assessed syllabus National. point 14 of State ex rel. Allstate Ins. Karl,

Co. v. 190 W.Va. part; in part; Affirmed in Reversed language that “[t]he W. Va.Code Remanded. 6-31(d),- § that allows an uninsured or 33 - underinsured motorist carrier to answer a ALBRIGHT, Justice, concurring. complaint in primarily its own name is de signed (Filed policy enable the carrier to 2002) raise July against plaintiff defenses have separately I express write certain con- policy.” uninsured or underinsured majority’s opinion cerns either fails Therefore, National has not shown excusable to address or that are need of further See, e.g., unavoidable cause. Diehl v. Lil possible, clarificаtion. When this Court (2000) ler, 208 W.Va. (per S.E.2d 608 clearly prefers legal matters be deter- curiam) (affirming judgment where mined their merits. See McDaniel v. shown). good cause Romano, 875, 879, Weighing the Parsons factors. We time, however, At the same this prejudice have determined that no undue fully recognizes validity Court of and against would result stetting Cales supports enforceability judg- of a default liability. aside default as to We have also properly ment that is light obtained. In determined National has two defenses finality judgments, of such barring suc- merit, potential that have and that the dam- 60(b) motions, cessful Rule this Court has a ages against significant. National are How- duty requirements ensure neces- ever, findings these weighed must be sary for judgments the issuance of default intransigence, National’s which we properly applied. are significant, have determined was and Na- present tional’s utter failure to excusa- Lack “Appearance” of Defendant’s filing ble or unavoidable cause timely propеr answer. We believe that the discussing In the distinction between de- requires balance this case us to affirm judgments fault that are obtained under the trial court’s denial of provisions National’s motion to compared liability. set aside of default as to procedures those that via result of Rule Levin, 777, 782, 55(b)(2), See Hinerman v. majority singularly focuses on (“[Although presence of a “sum certain” as the crucial quite willing court is judg- requisite to review default proceeding under the former ments and to overturn provision them eases where rule. While sum certain is shown, good cause a demonstration necessary good necessary predicate cause is a distinction that determines whether a clerk overruling our a lower court’s exercise of can enter the or whether discretion.”). Thus, we find the circuit court must enter the is the issue of denying did not abuse its discretion Na- appearance by whether there has been an 60(b) pertained tional’s Rule motion as it the defendant fоr of this rule. the determination that National tailoring defaulted its discussion to the narrow issue certain,” this action. majority “sum overlooks the *12 Constituting appearance of an Oral Communication significance of the absence component a critical of a by “Appearance” the defendant an pursuant to judgment that is entered default “ap- an establishing In what constitutes 55(b)(1). Rule require- pearance” purposes for of the notice Thus, point establishing in as a new of law provisions that attaches under the of ment 55(b)(1) of “[generally, under Rule the that majority the states that Rule Procedure, Virginia Rules of Civil when West written, communication, suffices be oral damages sought by plaintiff involve a the “appearance,” provided to constitute an by computa- can certain or a sum which sum an such communication “demonstrates either certain, by tion be made pending litigation, in or actual interest the party who has may be entered litigation.” fоrmulating In notice of the this liability prior notice defaulted law, majority new the leaves unanswered party,” majority appears gloss to that the I am several related concerns. concerned distinction between default over the essential applied, practicing that when this law is 55(b)(1) judgments obtained under Rule lawyers may find themselves without (b)(2). Only appearance where no has been necessary guidance proceed. This is be- defendant, judg- can a default made cause, elevating syllabus point in to a 55(b)(1).1 ment be entered under Rule See concept being communications suffi- oral Wright, Arthur R. 10A Charles Alan Miller Kane, “appearance” Mary to constitute an Kay Federal Practice and cient & (3rd 55,2 majority properly § at 24-25 has Procedure: Civil 2683 failed to ed.1998) 55(b)(1) “applies (stating that Rule practitioner parameters instruct only parties appeared in who have never properly oral communications that can action; аpply it does not when a “appearance” purposes viewed as an for merely participate appears and then fails to the Rule 55. proceed- subsequent stage in some Other courts that have considered this is- ings”). just any sue clear that not oral have made attempting distinguish those instanc- communication will suffice to constitute an 55(b)(1) properly es that fall under Rule appearance invoking the no- required those under Rule requirement of As tice majority should have followed Group, court made clear Alliance Inc. v. distinction used the rule itself. Rule 380, Rosenfield, App.3d 685 N.E.2d Ohio only apply is labeled to to those telephone par- call “[a] limited instances when clerk is authorized appearance ties would not constitute un- judgment, to enter the default while Rule give legal call less circumstances some instances, remaining covers all the Generally, an effect.” Id. at 577. affirma- require the active involvement required act tive is that manifests inten- judge process entering circuit court id.; tion to defend the action. See accord Wright, supra generally, Miaonisburg Huntington Nat’l Motel § (noting limited instances when default Bank, 117, 163, App.3d 623 N.E.2d 88 Ohio judgment can be entered under Rule (1993) (recognizing telephone call instances, recognizing that in all other moving party purpose that indicates to clear including those which “defendant is to defend the suit is sufficient to constitute for a reason other than failure to requirements appearance trigger appear,” application pro- must 55(b)(2)). 55); generally K. ceed under Scott position previously only recog perhaps majority implic- While intended to had been accompanying itly nized Court in notes two of refer to the in refer- lack of Family our decisions. See Farm Mut. Ins. Co. v. liability, encing of a default as this is Thorn Lumber 202 W.Va. n. not accurate because the default as to (1998); S.E.2d 792 n. 9 accord Colonial Ins. may have been entered on a other than the basis Barrett, 709, n. Co. v. appearance. lack of an (2000). 872 n. Zesch, “Appearance” What un- stances where no Constitutes has been made Federal Rules der Rule by the defendant and there is a “sum cer- Procediere, Party Against Providing tain,” respectfully suggest practitioners I if Judgment Sought “Ap- is Whom practice that it far the better Default send Action, peared" Party must be notice of application Application Judg- ivith Served Notice whenever counsel has sufficient information 603, 9[a], ment, § 139 A.L.R. [b] Fed. from which serve such notice *13 however, conversations, will suffi- Not all be or defendant defendant’s counsel. Notice appearance to cient amount to an under the given who, parties should to all despite be Collins, See, e.g., Ryan v. 481 rule. S.W.2d non-filing of pleadings, the formal have none- (Ky.1972) (holding that had 88 defendant a purpose theless indicated clear to defend step “voluntarily not in main taken the the suit means of communication with the that which it might action showed or from be Thus, moving party.3 if can be sent to making that the intention of inferred he had party, opposing appeal’ prudent an it would defendant had some defense” where conver- dispatch hopefully such notice and fore- plaintiffs attorney with regarding sation unnecessary litigation that may close result pending plaintiffs merely action and counsel party from failure to the advise a of a default take instructed defendant to summonses judgment application. company). insurance foregoing, respectfully on the Based I con- an “appear- the issue of whether While majority’s cur with the decision. oral ance” results from an communication necessarily factual will be a determination conversation, on the as a

based nature MeGRAW, Justice, concurring part, in and general “appearance” rule an will result from part. in dissenting conveys communication that clear intent (Filed 2002) July lawsuit at defend the issue may implied language also be that indi- agree that intransigence While I National’s taken or cates defendant has intends justifies finding in this ease of default as to steps pending some take related action liability, majority’s I take issue with the ac- that are either beneficial the defendant reversing resulting tion in award of dam- plaintiffs detrimental to the interests. See ages. I Specifically, disagree with the ma- Seventeen, Drake, Inc. v. Heleasco point jority’s syllabus in assertion five of the (D.Del.1984). Missing F.R.D. opinion purposes Court’s of West majority’s adoption point this new Rule Civil Procedure an permitting law an oral communication to con- “appearance” by party litigation may “appearance” stitute an is the clarification nothing an consist of more than oral or writ- that the must indi- communication involve an opposing party ten communication to the part cation the defendant’s to take some demonstrating pending an in interest liti- lawsuit. action relаtive Absent gation. indication, an oral affirmative communica- unlikely admits, tion is to rise to the majority opinion readily level of As the our “appearance” necessary trigger the notice past dealing cases with this issue are in 55(b)(2). requirements of Rule Realty Gibson, In Intercity conflict. v.Co. 369, 374-76, Pointers

Practitioner (1970), rejected expressly this Court the no- oral Despite clearly tion that mere communication the fact that Rule ‍‌‌​​‌‌‌‌‌‌​‌‌​​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌‌‌‌‌​​​​‌‌​‌‌‍judgments appearance to be in in- allows taken counsel constitutes under By apply Miamisburg, appear primarily federal 3. See 623 N.E.2d at 170. courts “most fashion, ing Rule in good this the court in moving Miamis concerned faith of the “informal, burg observed that honest communi defaulting parly” and fairness to the parties to a cation between the lawsuit may Twill "[cjonsequently, take ac- courts into fostered] ... lead to the [and] resolution moving party attempted count whether disputes legal process.” resort stealth”). judgment by obtain a default Icl.; Zеsch, supra, (recognizing § see also 2[b] however, recently, in ... has an whether More defending Id. at 455. Family interest the suit.” in Farm Mutual dictum contained Likewise, Co., Rogers v. Lumber Thorn Ins. Co. v. Hartford Life (5th 167 F.3d 933 that Accident Insurance indicated 501 S.E.2d Cir.1999), not pur accept court would the action’ for ‘appeared term “[t]he that its waiver service of quite from defendant’s claim poses different (such process appearance constituted an phrase ‘ap- jurisdiction).” interpret Id. at 75 rule: “We will establishing personal broadly peared valid action’ so eviscer- at 792 n. 9. I n. requirement of Rule give divergent ate the why mean we should reason 55(b)(2).” art, particularly there Id. at 937. ings to this term resolving this policy reasons are sound impor- emphasize the These authorities adhering to the stance Court conflict keeping tance of a trial court informed of Intercity Realty. originally took pending litigation. “Efficient court status *14 courts, where we judicial the federal reliability pro- Even management and not unanimous as to are derive Rule is court records which dis- cess enhanced appearance an in this con- constitutes what actions of the procedural close the critical Inc., Taylorcraft, v. In Anderson appearance.” text. parties entry of an as the —such (W.D.Pa.1961), appearance an F.Supp. Zuelzke, Interpreting Rule 925 F.2d at 230. respect to Rule was described appearance broadly to allow an so as party “ordinarily an overt act which a as “any predicated upon communication to to its into a court submits himself comes opposing party an that either demonstrates (citation omitted). jurisdiction.” Id. pending litigation, or actual an interest in the standard, Circuit, Following this Seventh majority litigation,” notice of as the does Engineering in Tool & Inc. case, Zuelzke present inevitably in will lead to Inc., Castings, Die 925 F.2d 226 Anderson in disorganization confusion the lower (7th Cir.1991), to find “informal declined that simple acknowlеdgment par- courts. A negotiations” parties litiga- settlement ty having pending notice of received making an appearance to un- could amount anyone, most impor- tion does to not reveal 55(b)(2): court, der Rule tantly party’s what the circuit respect defending to appeared in action” intentions are with party “has [A] (‘Waiver only party Rogers, action. 167 F.3d at under Rule where any way in presentation process of service does not actually made some indicate that a defendant intends to de- to the district court submission fend.”). more evident than interpretation an is This is nowhere pending action. Such case, accepted where National’s re- with traditional and le- instant consistent sponse subrogation request to “appearance” de- a waiver of gal parlance which obviously signal to coming into not its intent defend “a court as did fined as suit, person attorney, present or by an action. either plaintiff or defendаnt.” whether Although importance recognize I Dictionary (quoting Black’s Id. at 230 Law giving opportunity defend defendant Ed.1979)) (5th (emphasis original). application judgment, for default Kids, way Country go not out of its to find Inc. v. Pro Court should In Town Inc., Trust 178 an based communications Inv. # tected Venture (E.D.Va.1998), nothing than min- indicate more de F.R.D. 453 the district litigation. As deposition from imis the Sev- that a notarized sent attention found Zuelzke, counsel, emphasized in “it is a plaintiffs suggesting enth Circuit defendant’s settlement, enough legal system to distort the disservice to the possibility meaning ‘appear- concrete term constitute “requir provide ance’ in a mechanism to That court order to reasoned judgment.” 925 save a from a default ing party make at least submission some mind, I apprise F.2d at 230. this admonition necessary court is With the district adopt approach would the Zuelzke court’s appearance in prior the action resolving this issue. a default

Therefore, respectfully I concur with Part majority opinion

III.B of respecting Na- liability,

tional’s default as to but dissent opinion,

from Part III.A of the which re- damages.

verses circuit court’s award of

National was not entitled notice under ‍‌‌​​‌‌‌‌‌‌​‌‌​​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌‌‌‌‌​​​​‌‌​‌‌‍proper because it never made a