Park v. American Casualty Insurance

555 N.W.2d 720, 219 Mich. App. 62, 1996 Mich. App. LEXIS 297
CourtMichigan Court of Appeals
DecidedSeptember 24, 1996
DocketDocket 171787, 179930
StatusPublished
Cited by18 cases

This text of 555 N.W.2d 720 (Park v. American Casualty Insurance) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Park v. American Casualty Insurance, 555 N.W.2d 720, 219 Mich. App. 62, 1996 Mich. App. LEXIS 297 (Mich. Ct. App. 1996).

Opinions

Fitzgerald, P.J.

In Docket No. 171787, defendant appeals as of right from an order dismissing plaintiffs cause of action and ordering the case into arbitration pursuant to the language of a no-fault automobile insurance policy. In Docket No. 179930, defendant appeals as of right from an order of judgment affirming the arbitration award of $482,226.51. The appeals were consolidated.

Defendant issued a business automobile policy to plaintiffs employer, Ben Fox Trucking Company. While driving a truck owned by the company, plaintiff was allegedly struck by a hit-and-run driver. As a result of being forced off the road, plaintiff suffered severe injures. Plaintiff filed this suit to compel arbitration of his claim for uninsured motorist coverage under the policy. Defendant answered that plaintiffs loss was not subject to arbitration because “there was no contact between the [truck] and the phantom vehicle.”

Plaintiff moved for summary disposition on the ground that the terms of the insurance policy clearly required arbitration upon the request of a party where the parties disagree whether the insured is entitled to coverage for uninsured motorist protection. Defendant disagreed, arguing that summary disposition was inappropriate because there was no contact between the hit-and-run vehicle and the truck and, therefore, the uninsured motorist provision did not apply. Although the trial court denied the motion without [65]*65prejudice, an order was not entered, and plaintiffs counsel renoticed the hearing for May 24, 1993.

On April 29, 1993, the trial court entered a scheduling conference order and notice of pretrial settlement conference and trial. The court scheduled the bench trial for three days, beginning November 16, 1993.

On August 17, 1993, the court entered an order submitting the matter to arbitration upon the parties’ stipulation. The stipulation provided that “an order may be entered by this Court as the question of contact has been agreed by the parties and this matter should go to arbitration on the point of injury.” However, the order for arbitration was set aside on November 1, 1993, on the basis of the parties’ stipulation and “for the reason that the issue of contact is not agreed to at this time.” Plaintiff then filed a motion for summary disposition on November 10, 1993, and noticed the hearing for December 6, 1993.

Defense counsel did not appear on the scheduled trial date of November 16, 1993. The court entered a default against defendant at that time. Plaintiff requested that the court decide whether contact occurred and allow plaintiff to present his case based upon the proofs already submitted on the record. After reviewing the evidence before it, the court found that contact occurred.1 The court thereafter granted plaintiff’s request to submit the matter to arbitration and issued an order requiring the parties to appear on December 6, 1993.

[66]*66On November 29, 1993, defendant filed a motion to set aside the court’s order on the ground that defendant’s new counsel was not apprised of the date set for trial. Defendant sought an order to submit the issue of contact to arbitration along with the issue of injury.

At the hearing regarding the motion, the court noted that defendant’s request to submit the question of contact to the arbitrators was the relief plaintiff originally sought. After recounting defense counsel’s missed conference dates and adequate notice of the trial date, the court determined that it would be unfair to plaintiff and “not good for the administration of justice” to set aside the order. The court entered an order denying defendant’s motion to set aside the determination.

An arbitration panel heard the case. The panel decided that the worker’s compensation and social security disability payments received by plaintiff were not a permissible setoff because they were not of like kind to the noneconomic damages sought. The panel awarded plaintiff $482,226.51.

DOCKET NO. 171787

Defendant first contends that the trial court abused its discretion in refusing to set aside the default judgment. I disagree.

The question whether a default or a default judgment should be set aside is within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of that discretion. Gavulic v Boyer, 195 Mich App 20, 24; 489 NW2d 124 (1992). Except when grounded on lack of jurisdiction over the defendant, a motion to set aside a default or a default judgment generally may be granted only if [67]*67good cause is shown and an affidavit of facts showing a meritorious defense is filed. MCR 2.603(D)(1); Marposs Corp v Autocam Corp, 183 Mich App 166, 171; 454 NW2d 194 (1990). Good cause sufficient to warrant setting aside a default or a default judgment includes: (1) a substantial defect or irregularity in the proceeding on which the default was based, (2) a reasonable excuse for the failure to comply with requirements that created the default, or (3) some other reason showing that manifest injustice would result if the default or default judgment were allowed to stand. Gavulic, supra at 24-25. An attorney’s negligence is attributable to the client and normally does not constitute grounds for setting aside a default judgment. Pascoe v Sova, 209 Mich App 297, 298-299; 530 NW2d 781 (1995). However, even if there is no reasonable excuse for the failure to comply with the requirements that created the default, “[t]he showing of a meritorious defense and factual issues for trial may, under certain circumstances, fulfill the good-cause requirement by way of constituting a reason evidencing that manifest injustice would result from permitting a default to stand.” Komejan v Suburban Softball, Inc, 179 Mich App 41, 51; 445 NW2d 186 (1989).

Here, there is no reasonable excuse presented for defense counsel’s failure to appear. Substitute counsel admitted that a copy of the April 29, 1993, scheduling order that set the November 16, 1993, trial date was included with the transferred file. Counsel should have discerned the trial date from the case file when the file was received from former counsel.

Further, defendant argued only that the arbitrators should determine the question whether contact [68]*68occurred. As the court correctly pointed out, plaintiffs initial position was that the arbitrators should determine whether contact occurred. Because defendant originally requested that the court make such a determination, defendant could not then argue that the court erred in making the determination. Defendant cannot now seek reversal on the basis that the court decided an issue that defendant itself asked that the court decide. See Detroit v Larned Associates, 199 Mich App 36, 38; 501 NW2d 189 (1993). Defendant failed to show good cause to set aside the judgment.

Defendant also failed to show that it had a meritorious defense. In its motion to set aside the November 16, 1993, determinations, defendant failed to argue that contact between the truck and the phantom driver did not occur. Rather, defendant relied solely upon a showing of “good cause,” which, as indicated above, was not established.

Next, defendant contends that the trial court’s factual finding that contact occurred is clearly erroneous. By failing to show facts constituting a meritorious defense, defendant did not raise any factual issues that would warrant a trial on the merits of the question of contact. See Komejan, supra

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lansing Ice and Fuel Company v. Roy Smith
Michigan Court of Appeals, 2017
Jesse Marcus Spica v. Kevin J Schrotenboer
Michigan Court of Appeals, 2015
Michigan Commerce Bank v. Jo Ju Rimal LLC
Michigan Court of Appeals, 2014
Greenfield v. Cincinnati Insurance Co.
737 N.W.2d 112 (Supreme Court of Iowa, 2007)
Saffian v. Simmons
704 N.W.2d 722 (Michigan Court of Appeals, 2005)
Alken-Ziegler, Inc. v. Waterbury Headers Corp.
600 N.W.2d 638 (Michigan Supreme Court, 1999)
Universal Underwriters Group v. Allen (In Re Allen)
243 B.R. 683 (E.D. Michigan, 1999)
Huggins v. Bohman
578 N.W.2d 326 (Michigan Court of Appeals, 1998)
Huggins v. Mic General Insurance
228 Mich. App. 84 (Michigan Court of Appeals, 1998)
Cresap v. Waldorf (In Re Waldorf)
206 B.R. 858 (E.D. Michigan, 1997)
Park v. American Casualty Insurance
555 N.W.2d 720 (Michigan Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
555 N.W.2d 720, 219 Mich. App. 62, 1996 Mich. App. LEXIS 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/park-v-american-casualty-insurance-michctapp-1996.