Hritz v. Woma Corp.

92 F.R.D. 364, 32 Fed. R. Serv. 2d 416, 1981 U.S. Dist. LEXIS 17287
CourtDistrict Court, W.D. Pennsylvania
DecidedJuly 14, 1981
DocketCiv. A. No. 80-582
StatusPublished
Cited by5 cases

This text of 92 F.R.D. 364 (Hritz v. Woma Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hritz v. Woma Corp., 92 F.R.D. 364, 32 Fed. R. Serv. 2d 416, 1981 U.S. Dist. LEXIS 17287 (W.D. Pa. 1981).

Opinion

MEMORANDUM OPINION

BLOCH, District Judge.

The plaintiff, William Hritz, was injured May 2, 1978, when he was struck by a hose [365]*365that was part of a mine pumping machine. Plaintiff’s attorney collected the trademark, model and serial numbers from the machine and concluded it was manufactured or distributed by the defendant, Woma Corporation. Counsel notified Woma of his clients’ claim by letter dated January 17, 1979. Failing to receive a reply, counsel subsequently entered suit May 1, 1980, one day before the statute of limitations would have run on the action.

Default was entered against Woma over three months later, on August 8, 1980, Woma having failed to file an answer to plaintiffs’ complaint. Plaintiffs filed their petition for entry of default judgment against Woma and notice was mailed September 8, 1980, advising all parties that a hearing would be held October 1, 1980. Judgment was entered against Woma on December 11, 1980, for $168,691.45. Plaintiffs’ counsel called Woma on about January 19, 1981, to advise defendant that execution would be issued on the judgment. A letter subsequently confirmed the call.

The motion now before the court, a motion to set aside the default judgment, was filed January 30, 1981, almost eight months after the complaint was filed, almost five months after default was entered, and almost two months after judgment was entered.

The period of time stretching from plaintiffs’ original claim letter dated January 17, 1979, to the filing of the motion to set aside the default judgment on January 30, 1981, is a garble of inter-corporate confusion. When all the lines of communication and shuffled documents are finally traced from their beginning to end points, we are left with the inescapable conclusion that no one, to this day, knows what happened or why to the essential document in this case, the plaintiffs’ complaint. There is speculation as to likely explanations for the neglect of defendant’s case, but no certainty.

Upon receiving plaintiffs’ claim in January, 1979, defendant referred it to its insurance brokers, Smyth, Sanford & Gerard, Inc. of New York. Although it is not clear, Smyth, Sanford & Gerard then apparently mistakenly referred it to Sayre & Toso, Inc., the umbrella liability carriers for Woma, who advised Delaware Valley Insurance Agency, Inc., surplus line brokers whom we may speculate negotiated Woma’s policy with Sayre & Toso on behalf of Smyth, Sanford & Gerard, that Ambassador Insurance Company held the primary limits. In any event, Delaware subsequently notified Ambassador of the claim in February, 1979.

Ambassador immediately referred the claim to two investigative agencies, Harold J. Smith Adjusters, Inc., which was to handle the investigation at Woma corporate headquarters in New Jersey, and the Curley Adjustment Bureau, Inc., which was to handle the investigation at the site of the accident in Pennsylvania.

In November, 1979, Curley Adjustment wrote to Harold M. Edwards, claims manager in charge of the Woma file at Ambassador Insurance, stating, “We are still awaiting word from Woma Corp. as to all details concerning the sale, installation, and servicing of the pump in question.” Over two months later, Curley again complains to Edwards, “We have failed to receive a response from the Woma Corp., ... requesting they advise us all details concerning the sale, installation and servicing of the pump in question.”

Shortly thereafter, however, an investigator from Harold J. Smith apparently met with Charles Jewson, President of Woma, and advised Mr. Edwards of Ambassador Insurance by letter dated February 11, 1980, that he believed, based on his conversation with Jewson and a follow-up inquiry to Mining Progress, the other defendant in this action, that Woma did not manufacture or distribute the pump in question. Rather, he believed it was manufactured by Woma’s parent, Woma Corp. of Germany, and sold directly to a German concern, Westfalia Luenen, which in turn employed the pump in a mining system manufactured by it and distributed in the United States by Mining Progress. Mr. Edwards testified in his deposition, “I can’t answer why it took as long as February to get [this] information.”

[366]*366This piece of information then worked its painful way back up the chain of command from Ambassador to Delaware Valley Underwriting Agency on February 19, 1980, and to Smyth, Sanford & Gerard on February 28, 1980, which communicated to Delaware on May 18, 1980, that it had referred the plaintiffs’ claim to the carrier for the parent corporation.

Although the deposition of Mr. Edwards, and the copious exhibits attached thereto, provide the details set forth above as to the route travelled by plaintiffs’ letter claim of January 17, 1979, it offers nothing as to what happened to plaintiffs’ complaint of May 1, 1980. Most notably, neither Mr. Edwards’ deposition nor anything else submitted by defendant indicates that the complaint ever moved from the Woma offices. Nothing assures us that Woma simply did not choose to ignore the complaint, as it chose to ignore for several months the inquiries of Curley concerning the sale, installation and servicing of the pump in question.

Assuming Woma took some action, however, we have no way of knowing in which direction the complaint was sent. Since Woma referred the initial claim to its brokers, Smyth, Sanford & Gerard, we might assume the complaint was sent along the same path. However, Mr. Edwards seems to indicate it was more likely to have gone from Woma to Harold J. Smith, possibly because an investigator would have been in contact with Woma in connection with its investigation of the original claim. Thus, Mr. Edwards indicates a possible explanation for the lost complaint might lie with the fact that Harold J. Smith changed adjusters during the course of the investigation. Another possible explanation, Mr. Edwards postulates, might be an overworked and understaffed mail department at Ambassador, which resulted in a failure to call the complaint to his attention. But apparently the complaint has not been found to this day and so both these explanations represent no more than mere speculation. We note, however, that if the correct explanation was either that a new adjuster at Curley failed to take note of the complaint or the mail room staff at Ambassador failed to call it to Mr. Edwards attention, we would expect the complaint to have turned up, upon closer inspection, in the files of one of these concerns.

In any event, Woma must have assumed everything was being properly handled, because it felt no need to communicate with its carrier, even upon receiving notice of the hearing on the petition for entry of a default judgment, and even after receiving notice of the entry of the judgment itself. It was only after the telephone call from plaintiffs’ counsel indicating execution was imminent that Mr. Jewson felt it appropriate to contact Ambassador. The motion to set aside the. default judgment followed.

Rule 60(b) provides: “[U]pon such terms as are just, the court may relieve a party ... from a final judgment ... for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.” A motion to set aside a default judgment is to be made within a “reasonable time,” and in no event, more than a year after the entry of final judgment. The analysis-to be employed in deciding such a motion in this Circuit is well-settled.

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92 F.R.D. 364, 32 Fed. R. Serv. 2d 416, 1981 U.S. Dist. LEXIS 17287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hritz-v-woma-corp-pawd-1981.