Griffin v. Rutland

The trial court did not abuse its discretion in opening the defendant's default where the defendant reasonably believed that his automobile insurer was defending the plaintiff's suit.

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Appellant Wanda Griffin appeals from the trial court’s order setting aside a default judgment she obtained against Bruce Rutland, as well as the subsequent order granting summary judgment to Rutland on the basis of expiration of the two-year statute of limitation for personal injury claims. Because setting aside the judgment and opening default were within the trial court’s discretion, and because Griffin’s suit was filed well outside the applicable statute of limitation, we affirm the judgment of the trial court. The single-car collision leading to this action occurred on May 18, 1997, and the complaint was not filed until June 4, 1999. In an attempt to forestall a statute of limitation defense, Griffin contended in her complaint that Rutland had moved to Florida for three or four weeks in March 1998 with the intent of residing there, and therefore tolled the statute under OCGA § 9-3-94.1 A default judgment as to liability only was granted on July 28, 1999, and Rutland moved to set aside the judgment and open default on August 12, 1999. The trial court set aside the judgment and opened the default on May 15, 2000.

1. Rutland complied with the requirements of OCGA § 9-11-55 b with respect to opening default. He paid all court costs, announced ready for trial, offered a meritorious defense the statute of limitation in his motion and his verified answer, and offered a showing of providential cause or excusable neglect under oath. According to his affidavit, Rutland forwarded the summons and complaint to his insurance company, which referred the case to an attorney in Albany. The attorney contacted Rutland, spoke with him, and entered an appearance on his behalf. Due to a clerical error, however, the time for answering the complaint was not entered on the law firm’s docket control system or calendar.

Griffin v. Rutland

The trial court did not abuse its discretion in opening the defendant's default where the defendant reasonably believed that his automobile insurer was defending the plaintiff's suit.

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