Following a granted interlocutory appeal, BellSouth Telecommunications, Inc., “BellSouth” appeals from the order of the State Court of Cobb County which granted Future Communications, Inc.’s, “Future’s” motion to open the default. BellSouth contends the trial court abused its discretion under OCGA § 9-11-55 b because the evidence adduced was insufficient to support a finding of providential cause, excusable neglect, or a proper case necessary to open the default. We agree and reverse. The record reveals that BellSouth filed a claim for damages against Future based on two separate incidents in which Future’s employees allegedly damaged BellSouth’s underground cables and equipment. Before filing suit, BellSouth and its counsel negotiated with Future and its insurer, Georgia Casualty Company, in an unsuccessful effort to resolve the claims without litigation. After notifying both Future and Georgia Casualty in writing of its intent to file suit if the matter was not resolved within five days, BellSouth filed its complaint on May 21, 2007, and served the complaint upon Future’s registered agent and president, John E. Marshall, on May 30, 2007.
Future failed to file a timely answer because Marshall, by his own admission, failed to forward the complaint to Georgia Casualty even though Future’s policy of insurance required it to “immediately” send copies of any legal papers pertaining to a lawsuit to Georgia Casualty. Marshall mistakenly assumed that since Georgia Casualty had been copied on correspondence between Future and BellSouth in the past, it had been provided with a courtesy copy of the complaint and would respond to it on Future’s behalf. There is no evidence, however, that Marshall or any Future employee attempted to verify that Georgia Casualty had, in fact, been provided with a copy of the complaint and was responding to it.
