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Swanson v. State Farm Mut. Auto. Ins.

The uninsured motorist carrier could assert its defense that the tortfeasor was never served, even though it failed to include that defense in the proposed pretrial order.

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The issue in this case is whether a consolidated pretrial order submitted by the parties but unsigned by the court, which order fails to raise a defense mentioned in the answer, precludes the defendant from pursuing the defense in a motion prior to trial. Holding that it does not, we affirm the order dismissing the case on this defense.

On the day the statute of limitation ran,1 Natalie Swanson and Norma Bresil sued Andy Johnson and a John Doe for personal injuries arising out of an auto accident, but failed to make any attempt to serve Johnson with process after the sheriff reported that he had moved and could not be found. Seeking uninsured motorist coverage, they timely served State Farm Automobile Insurance Company with process. State Farm answered, asserting all affirmative defenses that could be asserted by Johnson. Although no pretrial conference was held, the plaintiffs and State Farm later submitted a consolidated pretrial order to the court, which made no reference to the lack of service on Johnson and which the judge did not sign or enter. It was the judge’s practice to sign pretrial orders just before trial began.

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