from Elmore Circuit Court (CV-13-900405)
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
and Procedural History
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
"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
"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.
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."
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
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
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
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.
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.
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.
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."
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
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
"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
Hilyer I, 176 So.3d at 812.
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.
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.
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.
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.
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. 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.
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). 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.
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
"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 ...