JAMES L. SELLERS, Guardian ad Litem of NATHAN TONEY, a minor, Appellant,
LONGVIEW ORTHOPEDIC ASSOCIATES, PLLC, Respondent.
Sellers appeals the trial court's order setting aside a
default order entered against Longview Orthopedic Associates,
as guardian ad litem for a minor child, filed a lawsuit
against LOA to recover damages for alleged medical negligence
in the treatment of the child. LOA forwarded the complaint to
its insurer, who informed LOA that an attorney would be
assigned to defend LOA. But the insurer-retained attorney
failed to file a notice of appearance or an answer, and
Sellers obtained an order of default against LOA. After LOA
promptly filed a motion to set aside the default order, the
trial court found that the failure to appear or answer
resulted from defense counsel's inexcusable neglect but
that LOA was blameless. As result, the court found "good
cause" to set aside the default order under CR 55(c)(1).
that (1) when the trial court found that the insurer-retained
defense attorney's neglect in failing to answer was
inexcusable but the defendant was blameless, the trial court
had discretion whether or not to find good cause to vacate
the default order; and (2) the trial court did not abuse its
discretion under the facts of this case. Accordingly, we
affirm the trial court's order setting aside the default
order under CR 55(c)(1) and remand for further proceedings.
December 14, 2017, Sellers filed a lawsuit against LOA to
recover damages for alleged medical negligence involving a
minor child. LOA was served with the summons and complaint on
December 21. LOA forwarded the summons and complaint to its
insurer, which retained attorney Amy Forbis to represent LOA
and informed LOA that defense counsel had been assigned.
However, Forbis failed to file a notice of appearance on
behalf of LOA or an answer to the complaint.
filed a motion for default on January 16, 2018 based on
LOA's failure to file an answer within 20 days after
service of the summons and complaint. The trial court entered
an order of default on the same day.
January 21, Forbis discovered that no notice of appearance
had been filed and that the trial court had entered a default
order. The next day, she filed on behalf of LOA a motion
under CR 55(c)(1) to set aside the trial court's default
order. Forbis argued that LOA's failure to appear was due
to her mistake. In her supporting declaration, Forbis stated
that her law firm's usual practice was to file a notice
of appearance upon receipt of a case assignment. She
attributed her failure to file a notice of appearance to a
clerical error and her focus on preparing for an upcoming
trial. In a supplemental declaration, Forbis emphasized that
"[LOA] is blameless for this error, over which they had
no control." Clerk's Papers (CP) at 68-69.
trial court granted LOA's motion to set aside the default
order. The court found that LOA failed to appear or answer
within 20 days due to the inexcusable neglect of defense
counsel. But the court also found that these "failures
to answer or appear were in no way related to the conduct of
[LOA], and/or its insurer, who were both blameless in this
regard." CP at 193. In addition, the court found that
Forbis diligently moved to have the default order set aside.
Finally, the court found that Sellers would not be prejudiced
by setting aside of the default order. However, the court
awarded Sellers attorney fees and costs incurred in obtaining
the default order and resisting LOA's efforts to have the
order set aside.
granting Forbis's motion to set aside the default order,
the trial court certified under RAP 2.3(b)(4) that its order
involved a controlling question of law appropriate for
immediate review: whether this court's decision in
VanderStoep v. Guthrie, 200 Wn.App. 507, 402 P.3d
883 (2017), review denied, 189 Wn.2d 1041 (2018),
should be extended to cases where a default order is entered
against a blameless defendant because of the inexcusable
neglect of that party's counsel. A commissioner of this
court granted discretionary review.
Setting Aside Default Order
general rule is that a defendant must file an answer within
20 days after service of the summons and complaint. CR
12(a)(1). Under CR 55(a)(1), a plaintiff can move for default
if the defendant fails to answer or otherwise defend within
20 days. Defendants are entitled to notice of the motion only
if they have appeared in the action. CR 55(a)(3). Once a
default order has been entered, a plaintiff can obtain a
default judgment under certain circumstances. CR 55(b).
55(c)(1) provides that a trial court may set aside a default
order "[f]or good cause shown and upon such
terms as the court deems just." CR 55(c)(1) also states
that a court may set aside a default judgment in
accordance with CR 60(b), which addresses the vacation of
judgments. These are different standards. In re Estate of
Stevens, 94 Wn.App. 20, 30, 971 P.2d 58 (1999).
analysis for setting aside a default judgment, first
articulated in White v. Holm,73 Wn.2d 348, 352, ...