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Hilyer v. Fortier

Supreme Court of Alabama

January 6, 2017

Adam Dan Hilyer
v.
Betti Fortier, individually and as mother and next friend of M.M., a minor

         Appeal from Elmore Circuit Court (CV-13-900405)

          PARKER, Justice.

         Adam Dan Hilyer appeals from the order of the Elmore Circuit Court ("the circuit court"), following this Court's remand of the case, denying Hilyer's motion filed pursuant to Rule 55(c), Ala. R. Civ. P., to set aside the default judgment entered against him and in favor of Betti Fortier, individually and as mother and next friend of M.M., a minor. For the reasons explained below, we reverse and remand.

         Facts and Procedural History

         This case has previously been before this Court. See Hilyer v. Fortier, 176 So.3d 809 (Ala. 2015)("Hilyer I"). The following facts from Hilyer I are pertinent to our review:

"On the evening of July 29, 2013, Hilyer was backing a tractor-trailer rig used to transport logs into his private driveway on Kennedy Avenue. At the time, Hilyer was blocking both lanes of traffic on Kennedy Avenue. M.M., a minor, was driving Fortier's van and was traveling westbound on Kennedy Avenue. B.D., M.M.'s brother; R.W., M.M.'s fiancé; and B.H., a friend of B.D.'s, were also in the vehicle with M.M. M.M.'s vehicle collided with Hilyer's trailer, and M.M. sustained injuries.
"On October 30, 2013, Fortier, individually and as the mother and next friend of M.M., sued Hilyer, asserting claims of negligence and wantonness. In her complaint, Fortier alleged that, at the time of the accident, it was dark and that Hilyer's tractor-trailer was blocking both lanes of travel on Kennedy Avenue, which caused M.M.'s vehicle to collide with the trailer. Fortier alleged:
"1. That Hilyer negligently and wantonly blocked both lanes of travel on Kennedy Avenue in the dark while attempting to back the tractor-trailer rig into his private driveway;
"2. That Hilyer negligently and wantonly failed to give adequate warnings to motorists approaching on Kennedy Avenue that the tractor-trailer rig was blocking both lanes of travel on Kennedy Avenue;
"3. That Hilyer negligently and wantonly failed to have adequate and/or proper lighting on the truck and/or the trailer.
"4. That Hilyer negligently and wantonly violated certain provisions of the Alabama Rules of the Road.
"A summons and a copy of the complaint were served on Hilyer by certified mail on November 6, 2013. On January 27, 2014, Fortier filed a motion for a default judgment against Hilyer and requested a hearing on damages.
"On January 28, 2014, the trial court entered an order granting Fortier's motion for a default judgment and stating: 'Damages to be proven by affidavit and proposed judgment in 15 days.' Subsequently, Fortier submitted a 'proposed judgment, ' in which she requested that the trial court enter a judgment against Hilyer in the amount of $550, 000 and 'to find that the proposed settlement of the claim of the minor, M.M. is just, fair, reasonable, in keeping with the evidence, and is in the minor's best interest.' In support of her request, Fortier attached an affidavit from her counsel regarding the injuries sustained by M.M. and the expenses that had been incurred as a result of those injuries.
"On February 12, 2014, the trial court entered a judgment against Hilyer in the amount of $550, 000 and found 'that the proposed settlement of the claim of the minor, M.M. is just, fair, reasonable, in keeping with the evidence, and is in the minor's best interest.'
"On March 7, 2014, Hilyer filed a motion to set aside the default judgment pursuant to Rule 55(c), Ala. R. Civ. P.[1] In his motion, Hilyer addressed the requirements for setting aside a default judgment set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988). He also attached to his motion his affidavit; an affidavit from his neighbor, Wyman Earl Jackson, who witnessed the accident; an affidavit from Roberto Lozano, a claims manager for Alteris Insurance Services ('Alteris'), which was the third-party administrator for Hilyer's commercial-insurance policy; letters Fortier's counsel had sent to Lozano; an affidavit from Christopher Wyatt, an employee of Crawford & Company, which Alteris had hired to investigate the accident; copies of letters Wyatt had sent to Fortier's counsel; and a copy of a letter Fortier's counsel had sent to Wyatt after the default judgment had been entered."

         The affidavits Hilyer attached to his Rule 55(c) motion to set aside the default judgment contain facts pertinent to our review in the present case. In Hilyer's affidavit, Hilyer stated that he backed the tractor-trailer rig into his driveway at least twice a week for six years before the accident. He stated that his general practice in backing the tractor-trailer rig into the driveway was to drive past his driveway, stop, turn on the four-way flashers, make sure that the road was clear, and back into his driveway. According to Hilyer, the stretch of road in front of his house was never very busy, and, on most occasions, he stated, he did not see any vehicles while backing the tractor-trailer rig into his driveway.

         Additionally, according to Hilyer's affidavit, on the night of the accident, Hilyer followed his general practice of backing into his driveway. Hilyer stated that he stopped after passing his driveway and turned on the four-way flashers. He further stated that he looked in all directions and, not seeing any vehicles approaching, began backing into his driveway.

         Hilyer also stated that, at some point, he saw a minivan coming toward his tractor-trailer rig. According to Hilyer, the driver of the minivan should have seen his tractor-trailer rig. Hilyer stated that there was a streetlight behind his tractor-trailer rig, that the four-way flashers were on, and that there was reflective tape running along the length of the side of the trailer. According to Hilyer, he flashed his lights to get the driver's attention but the minivan crashed into the tractor-trailer rig. Hilyer stated that the minivan appeared to be going well over the 35 m.p.h. speed limit.

         According to Hilyer, he notified his insurance agent at Ledkins Insurance Agency ("Ledkins") of the accident on July 30, 2013, the day after the accident. Hilyer stated that, based on that conversation, it was his understanding that his insurance company was investigating the accident and would defend him if a lawsuit was filed against him.

         In the affidavit filed by Hilyer's neighbor, Wyman Earl Jackson, Jackson stated that on the night of the accident the headlights on the tractor-trailer rig were on. Jackson further stated that the hazard lights began flashing once Hilyer began backing the rig into his driveway. According to Jackson, he saw the minivan approach, and it appeared to Jackson that the minivan was going faster than the 35 m.p.h. speed limit. Jackson stated that, as the minivan approached, Hilyer flashed the headlights on the tractor-trailer rig and honked the horn. Jackson further stated that there were reflectors on the trailer.

         In Roberto Lozano's affidavit, Lozano, a claims adjuster for Alteris Insurance Services, stated that Sparta Insurance ("Sparta") had issued Hilyer a commercial automobile policy that was in effect on the day of the accident. Lozano stated that, on July 30, 2013, Ledkins reported a claim arising out of the accident involving Hilyer and that, as a result, Lozano established a claim number for Hilyer's claim. Lozano further stated that, on August 2, 2013, he hired Crawford & Company, a property and casualty company, to investigate the accident.

         Lozano stated that he intended to assign responsibility for Hilyer's claim to another Alteris adjuster and that, thinking he had done so, he did not monitor Hilyer's claim. Lozano stated that, because of his belief that he had assigned the case to another Alteris adjuster, he did not read or respond to any further correspondence he received from Fortier's counsel. According to Lozano, when the default judgment against Hilyer was brought to his attention, he realized that he had not assigned the claim to another adjuster as he had thought he had done. He stated that he then retained counsel and that "had [he] realized sooner a complaint had been filed, [he] would have immediately retained counsel to defend Hilyer."

         The letters from Fortier's counsel Hilyer attached to his Rule 55(c) motion also include facts pertinent to our review of the ruling before us. One letter, a letter from Fortier's counsel to Lozano dated August 8, 2013, indicates that counsel was representing Fortier with reference to the accident and requested, among other things, that future correspondence be sent to her. It is undisputed that Lozano read this letter, but the letter does not mention an intent to file a lawsuit against Hilyer. Another letter from Fortier's counsel to Lozano, dated October 31, 2013, references a complaint filed against Hilyer in the circuit court. A third letter from Fortier's counsel to Lozano, dated January 2, 2014, advises Lozano, among other things, that an answer had not yet been filed on Hilyer's behalf. On January 28, 2014, the circuit court entered the default judgment.

         On March 7, 2014, the same day Hilyer filed his motion to set aside the default judgment, Hilyer filed his answer to Fortier's complaint and asserted affirmative defenses.

"The trial court subsequently entered an order setting a hearing on Hilyer's motion to set aside the default judgment.
"On April 11, 2014, Fortier filed her opposition to Hilyer's motion to set aside. In support of her opposition, Fortier attached her affidavit; affidavits from M.M., B.D., and R.W.; an affidavit from Marc McHenry, an investigator with Fortier's counsel's law firm; copies of correspondence from Fortier's counsel; an affidavit from Fortier's counsel; and an affidavit from Shannon Rattan, the secretary for Fortier's counsel."

Hilyer I, 176 So.3d at 812.

         The affidavits Fortier attached to her motion opposing Hilyer's Rule 55(c) motion contain facts pertinent to our review in the present case. In M.M.'s affidavit, M.M. stated that she had slowed to 20 m.p.h. before the accident. She stated that she never heard a horn or saw any lights, flashers, or reflectors before the accident. In B.D.'s affidavit, B.D. stated that there were no lights on the tractor or the trailer on the night of the accident. B.D. stated that there was no warning that the tractor-trailer rig was blocking the lane in which they were traveling. In R.W.'s affidavit, R.W. stated that the reflectors on the trailer were "dirty." R.W. also stated that, while waiting to leave the scene of the accident, he ran his hand along the side of the trailer. According to R.W., when he ran his hand along the side of the trailer, he felt dirt, rust, and chipped paint.

         In Marc McHenry's affidavit, McHenry, an investigator for Fortier's counsel's law firm, stated that he spoke with Lozano on August 7, 2013. According to McHenry, he asked Lozano if he could inspect the tractor and the trailer as soon as possible. McHenry stated that Lozano told him that he, Lozano, had authority to allow McHenry to see the tractor and trailer but that McHenry needed to communicate with Christopher Wyatt, the investigator hired by Crawford & Company to investigate the accident. McHenry stated that he contacted Wyatt, who, in turn, stated that he would continue to try to make contact with Hilyer to coordinate McHenry's inspection of the tractor-trailer rig. McHenry stated that he spoke to Hilyer about accessing the tractor-trailer rig; however, Hilyer apparently directed McHenry to Wyatt.

         McHenry stated that, during a conversation he had with Wyatt on September 18, 2013, Wyatt stated that he had already inspected and photographed the tractor and trailer. According to McHenry, Wyatt also told him that the tractor was repaired two days after the accident. McHenry stated that he sent an e-mail to Wyatt requesting copies of the photographs of the tractor, the trailer, and the parts that were removed but that he never received a response.

         Finally, in her affidavit, Fortier's counsel stated that she telephoned Lozano to see if an answer would be filed on Hilyer's behalf. Fortier's counsel stated that Lozano did not answer the call and that she left him a voicemail. It is unclear as to when Fortier's counsel made the telephone call, and Fortier's counsel does not describe the contents of the voicemail.

"On April 16, 2014, the trial court entered an order stating that the hearing on the motion to set aside had been held and that the issue remained under advisement. The record does not include a transcript of the hearing.
"On May 13, 2014, Hilyer filed a supplement to his motion to set aside the default judgment, in which he submitted an affidavit from Scott Kramer, a member of the Coosada Volunteer Fire Department ('the CVFD'), who was the on-scene supervisor for the accident."

Hilyer I, 176 So.3d at 812.

         Scott Kramer stated that he drove a fire engine from the station to the scene of the accident; that he was traveling north on Kennedy Avenue and approached the accident scene from the south; that, in the area just south of the accident, Kennedy Avenue curves from west to north; that, when he entered the curve, he could see across his right to the area where the curve ended; that he could see the lights of Hilyer's tractor-trailer rig and the lights of a police vehicle at the accident scene; that he could clearly see the running lights and headlights of the tractor-trailer rig; that the hazard lights on the tractor-trailer rig were flashing; and that the tractor-trailer rig and the police vehicle were approximately one-quarter of a mile away when he first saw them. He further stated that, when he arrived at the scene, M.M.'s vehicle was on fire; that the tractor-trailer rig was parked in the road and its running lights were on; that he looked at the running lights to maneuver the fire engine between the police vehicle and the tractor-trailer rig; that he did not see anything that night to explain why M.M. would not have seen the tractor-trailer rig; and that anyone traveling the 35 m.p.h. speed limit would have had ample time to avoid a collision. Finally, Kramer stated that he lived in Coosada; that he was familiar with traffic on Kennedy Avenue; that Kennedy Avenue was not a heavily traveled road; that he had previously seen Hilyer backing his tractor-trailer rig into his driveway; and that it never took Hilyer very long to get his tractor-trailer rig out of the road.

"On May 21, 2014, Fortier filed a reply to Hilyer's supplement to his motion to set aside the default judgment and a motion to strike Kramer's affidavit.[2] Hilyer's motion to set aside the default judgment was denied by operation of law on June 5, 2014. Hilyer appealed."

Hilyer I, 176 So.3d at 812.

         On appeal in Hilyer I, this Court considered whether Hilyer's Rule 55(c) motion had properly alleged the three factors set out in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988).[3] 176 So.3d at 814. We held both that Hilyer's Rule 55(c) motion met the threshold showing of each of the three Kirtland factors and that those factors were not considered in the denial by operation of law of Hilyer's Rule 55(c) motion. 176 So.3d at 820-21. Therefore, we reversed the denial of Hilyer's Rule 55(c) motion and remanded the case with instructions for the circuit court to consider the three Kirtland factors in determining whether to grant or to deny Hilyer's Rule 55(c) motion. 176 So.3d at 820-21. We noted:

"'"[O]ur mandate in this case 'is not to be construed to mean that the trial court must set aside the default judgment, [but] only that the trial court must apply the Kirtland factors in deciding whether to set aside the default judgment.'" Richardson v. Integrity Bible Church, Inc., 897 So.2d 345, 349 (Ala. Civ. App. 2004) I oting White v. Westmoreland, 680 So.2d 348, 349 (Ala. Civ. App. 1996).' [D.B. v. D.G., ] 141 So.3d [1066, ] 1072 [(Ala. Civ. App. 2013)]."

176 So.3d at 821.

         On May 27, 2015, the circuit court held a hearing on Hilyer's Rule 55(c) motion. No new evidence was offered. Following the hearing, the circuit court entered the following order:

"This case coming on before this Court upon the remand from the appellate court for this Court to consider the Kirtland factors in whether the default judgment that is entered in this cause should be set aside. The parties appearing and submitting only evidence through pleading and no new evidence being presented on the date of this hearing through testimony. Only argument being presented, this Court finds as follows:
"This Court hearing the argument and reviewing the pleadings as to the 1. Meritorious defense of the Defendant, 2. The plaintiff unfair prejudice and 3. [W]hether the default was a product of the Defendant's own conduct, with the idea that all three factors must be shown for the Kirtland analysis to be applied.
"Parties stating through counsel that Agent Lazono [sic] received the correspondence from [Fortier], received phone calls and text messages along with letters that he placed in the claim file but mistakenly thought he had assigned the claim to another. Agent Lazono [sic] failed to respond to letters asking if he was going to respond. [Fortier] making direct contact with the adjuster for the carrier but was unable to get the carrier to arrange for [Fortier] to review the vehicle of [Hilyer], even though the same was in [Hilyer's] possession. Lazono [sic] knew the suit was pending.
"This Court finds that Lazono [sic], the employee of the carrier, exhibited 'intentional non-responsiveness.'
"Upon review of the Kirtland factors, this Court finds that the default judgment entered herein should remain. Motion to set aside is denied. DONE this ...

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