Sometimes in handling a personal injury action, a default judgment is the way to go. A default judgment means that you get a judgment against the defendant. For that to happen, there must be proper service of the suit papers. Also the required response time must have expired. Finally the defendant must not have timely answered or otherwise responded to the suit papers that were served.
Personal Injury Default with Substituted Service
That most often happens in cases of substituted service. Substituted service means that you did not serve the defendant in person. Instead the person served was a substitute. That substitute may be a family member who lives at the home of the defendant. Or the substitute may be what is called a “statutory agent”. Statutory agents are the Commissioner of Motor Vehicles and/or the Secretary of State.
If a defendant has an auto crash in Virginia and is not a resident of Virginia, then the Commissioner of the Department of Motor Vehicles (DMV) is their statutory agent. If the matter does not arise out of an auto crash and the defendant cannot otherwise be found in Virginia, then the Secretary of State is their statutory agent.
There are particular means by which you accomplish service through those statutory agents.
If the substituted service is through a family member living at the home of the defendant, then there is a requirement that you mail the suit papers and the summons to the defendant at that address.
Where those circumstances exist, a default is more likely to arise. It is less likely to arise in cases where the defendant was served in person. In-person service means that the process server or the sheriff physically handed the papers to the defendant.
Service by Posting
Another form of substitute service is what is called “service by posting”. That service takes place where the process server does not find anybody at home. In that instance the process server may post the papers on the front door of that dwelling. That form of service may present problems as far as getting a default because the defendant may claim that they simply never got the papers. That is, the papers could have blown away. The papers could have been removed by some third party. The papers could have been removed by some other family member who didn’t appreciate the importance of them.
It’s probably a good idea when serving any defendant that you request in-person service as opposed to service by posting. That increases the likelihood of your default being able to stand. You should always tell the process server to photograph the service if by posting. That way you have a picture of the posting on the front door.
If service is by posting then pursuant to Va. Code § 8.01-296(b), you must give 10 days notice of that service. If you then file a Motion for Default Judgment, that motion must be served on the defendant.
Avoiding Default
If a defendant in Virginia has been properly served and more than 21 days have passed, then technically at that point the defendant is in default. The defendant can avoid the entry of a default judgment however by showing good cause for not having answered the Complaint within 21 days. “Good cause” is a loose term. It is not defined in the rule. The pertinent rule is Rule 3:19. In Berg v. Va. Employment Commission, 1980 WL143151, the Frederick County Circuit Court indicated that good cause is to be measured objectively and it must be something both substantial and compelling. There are a number of factors that a court may look at in determining good cause. Those factors include such things as prejudice to the moving party. The existence of excusable neglect may be good cause. Whether or not the so-called “ends of justice” are promoted may be a factor. Whether the defendant has a viable defense is another factor. Emrich v. Emrich, 9 Va. App. 288 (1989) There may be a host of other factors the court could consider.
Default-Do You Care About Coverage?
Even though a plaintiff may be entitled to taking a default, you need to answer the question of whether by doing so you lose insurance coverage. If insurance coverage is not your goal, then take the default. If insurance coverage is your goal, then you don’t want to endanger that coverage. That is, the insurance carrier may deny coverage if the insured (the defendant) did not provide it with the suit papers to defend the case.
In your typical personal auto policy, the insured has a duty to promptly send to the carrier “copies of any notices or legal papers received in connection with the accident or loss”. If a defendant never gets the suit papers because the service was substituted service, is that a violation of the policy? That may be something that you litigate in front of a judge.
Virginia Code § 38.2-2204.D says that if the carrier has actual notice of the papers having been served, then the failure of the insured to send the papers to the carrier does not void coverage. In that circumstance the insured must cooperate and not prejudice the insurer.
Above we talked about service through the DMV Commissioner. Under the statute allowing that, an out-of-state driver is required to keep the DMV notified of their last known address. On the police report taken at the time of the crash, the defendant’s last known address may have been provided. If the defendant has moved from that address then it may be that the defendant never gets the suit papers from the Commissioner of DMV. In that case is the coverage voided?
Personal Injury Default-No Receipt of Papers
The insured, under the personal auto policy, must tender the papers received by the insured. However if the defendant never received the papers does that constitute non-cooperation? It may if the defendant had a duty to keep the DMV informed of his address. But it also may not.
The long and short of all of this is that taking a default against a defendant may void the insurance coverage. However if the defendant has deep pockets and you don’t care about insurance coverage, then taking a default may be the right way to go.
Personal Injury Default-Proof of Damages
In a case where you’ve taken a default against one defendant but there are other defendants that are not in default, you need to be careful. If you present your damages as to the defaulting defendant, you may be stuck with that award. The non-defaulting defendant is not stuck with the award but you may be in terms of not being able to claim more against that non-defaulting defendant than what the court awarded you against the defaulting defendant. See the case of Rawlings v. Lopez, 267 Va. 4, 5 (2004)
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Call or contact us for a free consult. Also for more info on defaults see the Wikipedia pages. Also see the post on this site dealing with contract issues as insurance policies are just contracts.
