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Kelly v. Harris

The trial court erred in ruling that the plaintiff's UM insurer was not in default for filing an untimely answer to the plaintiff's suit arising after the plaintiff and an uninsured motorist were involved in an automobile accident.

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In this civil action arising from an automobile accident, Thomas Kelly appeals the trial court’s grant of summary judgment to GEICO, his insurance carrier. On appeal, Kelly argues that the trial court erred in finding that GEICO was not in default for its untimely answer, that the notice provision of GEICO’s insurance policy was unambiguous, and that he failed to comply with the policy’s notice provision as a matter of law. For the reasons set forth infra, we conclude that the trial court erred in finding that GEICO was not in default, and thus, we vacate the trial court’s orders denying Kelly’s motion for a default judgment and granting summary judgment to GEICO and remand for further proceedings consistent with this opinion.

Viewed in the light most favorable to Kelly i.e., the nonmoving party,1 the record shows that on May 25, 2011, Kelly and Joseph Harris, an uninsured motorist, were involved in an automobile accident. Subsequently, on October 30, 2012, Kelly filed a complaint for negligence against Harris, alleging that he did not yield when turning left directly into Kelly’s path, thereby causing the collision.

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