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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana Court of Appeals has reversed in a car crash case after finding a party in the suit should not have been granted a motion to set aside based on excusable neglect.
In February 2017, driver Nathan Vanoy ran a red light and struck a car driven by Brian Denny, prompting Denny to sue Vanoy.
Although he was served in September 2018, an adjuster from Vanoy’s insurer, GEICO, called Denny’s counsel about the complaint several months later. Denny, however, eventually moved for default judgment as no one had appeared for Vanoy since the phone call.
During a damages hearing, Vanoy’s counsel moved to set aside the default judgment based on excusable neglect under Indiana Trial Rule 60(B)(1), but Vanoy attached an affidavit that only alleged he had a meritorious defense against Denny rather than addressing excusable neglect.
When the Marion Superior Court ultimately granted Vanoy’s motion to set aside, Denny appealed, arguing that Vanoy failed to prove excusable neglect by affidavit, witness testimony or other evidence.
“The basis of Vanoy’s claim that excusable neglect existed is that a GEICO adjuster ‘contends she spoke to a member of counsel’s firm on March 1, 2019.’ Vanoy, however, presented no affidavit or testimony from this adjuster. With no evidence to show that the adjuster called Metzger Rosta LLP on March 1, 2019, there is nothing to support Vanoy’s claim that there was ‘a breakdown of communication,’” Judge Nancy Vaidik wrote for the appellate court.
“This then leaves evidence that Vanoy was served on September 14, 2018; that despite this service, Vanoy did not appear and defend the suit; and that GEICO did nothing to defend the suit, despite Denny’s counsel sending the complaint and related documents to GEICO. This is inattention, not excusable neglect. The trial court abused its discretion in granting Vanoy’s motion to set aside the default judgment,” it concluded.
The appellate court therefore reversed and remanded for Denny in the case of Brian Denny v. Nathan Vanoy, 19A-CT-2576.
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