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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Decatur Superior Court must reinstate a default judgment against a local apartment complex and its property manager after the Indiana Court of Appeals found there was no excusable neglect that would justify setting aside the default.
In March 2016, Matthew Joseph was cleaning a handgun in his apartment in the Tree City Village apartment complex in Greensburg when the gun accidentally discharged, traveled through the wall and struck his neighbor, Genia Wamsley. She survived but sustained significant injuries.
Wamsley’s counsel, Thomas Vick, informed the property management company, New Generation Management, Inc., of her impending litigation and asked the company to place its insurer, The Cincinnati Insurance Companies, on notice. Vick communicated with an insurance specialist, who denied Wamsley’s claim, but did not request that Vick copy her with any complaint filed regarding the claim.
Wamsley then filed a complaint against Joseph, the apartment complex and the property manager, alleging negligence, nuisance and breach of duty of care. The landlords received service of the complaint, which incorrectly stated that New Generation owned Tree City Village. New Generation President Tamera L. Brandt sent Vick a letter regarding the error, then placed the complaint in storage.
Tree City and New Generation never responded to the complaint after that, so the Decatur Superior Court entered default against them. In response, Tree City claimed the default was due to excusable error – namely, that Brandt did all she thought was required of her. They also argued the insurance company never received a copy of the complaint.
The trial court granted the landlords’ motion to aside the default, but the Indiana Court of Appeals reversed in Genia Wamsley v. Tree City Village, New Generation Management, Inc., and Matthew Joseph, 16A01-1706-CT-1355. Judge Paul Mathias wrote first in a Wednesday opinion that under Boles v. Weidner, 449 N.E.2d 288 (Ind. 1983), Vick’s failure to provide the insurance company with a copy of the complaint “would not, standing alone, justify the trial court in setting aside the default judgment.”
Further, because the landlords never sent a copy of the complaint to their insurer, placed the complaint in storage and have regularly been involved in small claims and civil collections case, Mathias said their argument that they believed they had taken all necessary action was unpersuasive.
“Landlords explain that they ‘never forwarded the Complaint to the insurer because they were unaware that the insurer was no longer being kept informed by Counsel for Wamsley,’” Mathias wrote. “While this may very well be true, it demonstrates a striking lack of attention by Landlords.”
“Therefore, while we are aware of the high level of deference accorded to trial courts in these decisions and the preference in Indiana for resolving cases on the merits, the Landlords’ inattention to the complaint and summons and their failure to consult with or discuss the suit with the Insurer may constitute neglect, but it does not constitute excusable neglect under Indiana Trial Rule 60(B)(1),” he wrote.
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