Walker v. Allied Fidelity Insurance

*570GRABER, J.

Defendant Koford-Chapman Insurance, Inc., appeals from the entry of a judgment by default in favor of plaintiff. It assigns as error the trial court’s denial of its motion for relief from the order of default. We affirm.

Defendant is an insurance broker; plaintiffs complaint seeks to recover damages for an allegedly improper cancellation of liability coverage for plaintiff’s assignee. Koford, defendant’s registered agent, was served with the summons and complaint on July 2,1987, at defendant’s office in Junction City. As ORCP 7C(3)(a) requires, the summons contained this notice:

“NOTICE TO DEFENDANT:

“READ THESE PAPERS “CAREFULLY!

“You must ‘appear’ in this case or the other side will win automatically. To ‘appear’ you must file with the Court a legal paper called a ‘motion’ or ‘answer.’ The ‘motion’ or ‘answer’ must be given to the Court clerk or administrator within 30 days along with the required filing fee. It must be in proper form and have proof of service on the Plaintiffs attorney or, if the Plaintiff does not have an attorney, proof of service on the Plaintiff.
“If you have questions, you should see an attorney immediately.”

The evidence of what occurred after service comes from affidavits of several of defendant’s employes. Koford states that he decided, after receiving the papers, that defendant’s Springfield office should handle the matter. However, he waited about a month before sending the summons and complaint to Nokes, who was in charge of that office. When he did send them, he neither instructed Nokes what to do nor indicated what he had done. Nokes assumed that Koford had already sent copies to defendant’s insurance carrier. According to Koford, several weeks later he called Nokes, discovered that nothing had happened, and told Nokes to send the summons and complaint to defendant’s liability carrier. Nokes then told Corwin, a secretary at the Springfield office, to send the papers to the carrier. Several days later, she sent them to an insurance association in Portland, rather than to the carrier in New York. Only after she learned of the mistake did she *571send the papers to the proper place. By then the order of default had been entered.

The affidavits are not consistent as to the times involved, but the parties do not treat the inconsistencies as significant, to the extent that they recognize them at all. Nokes states that he received the papers from Koford some time in July and that Koford called him several weeks later, but he also states that the call was at the end of July. Corwin states that Nokes told her on July 31 to mail the papers to the carrier and that her first mailing was on August 4 or 5. Those dates are inconsistent with Koford’s statement that he waited about a month before mailing the papers to Nokes and then waited another several weeks before calling to find out what had happened. We will assume that Nokes’ and Corwin’s chronology is correct, because it better fits the documentary evidence.

Even under that version, defendant’s employes showed no concern about complying with the 30-day deadline for appearing in the action. They had enough time after they learned from Koford that he had done nothing to have called defendant’s liability carrier, in time for the carrier to avoid the default, but they did not do so. ORCP 7lB(l)(a) permits the trial court, in its discretion, to grant a defendant relief from a judgment by default if the defendant can show “mistake, inadvertence, surprise, or excusable neglect.” (Emphasis supplied.) The court may also set aside an order of default on the same grounds or, perhaps, on a showing of “good cause.”1 Rajneesh Foundation v. McGreer, 80 Or App 168, 173, 721 P2d 867 (1986), rev’d on other grounds 303 Or 139, 734 P2d 871, on reconsideration 303 Or 371, 737 P2d 593 (1987). In this case, however, the trial court could readily have found that defendant was inexcusably negligent and showed no good cause. The summons carried a clear warning of the effect of defendant’s inaction. The prayer of the complaint — and the principal amount of the judgment — is $438,564.29. The trial court could conclude that it is not excusable for a businessperson to treat a matter of such magnitude in so cavalier a fashion.

*572Defendant argues that this was only the second complaint that Koford had received in his 25 years as registered agent and that he was inexperienced in dealing with such matters. That is all the more reason for him to have read the papers with care and to have sought legal or other appropriate assistance immediately. Inexperience is not an excuse for failing to seek the help of someone who is experienced. Certainly a person with 25 years in the insurance business should know the perils of ignoring a lawsuit. The 30-day period that the legislature has provided2 was more than adequate for defendant, in the exercise of anything resembling reasonable diligence, to bring this action to the attention of its carrier and for the carrier to take the necessary steps to protect defendant’s position. ORCP 7C(2).

Defendant relies on Reitz v. Coca-Cola, 36 Or App 487, 584 P2d 791 (1978), which it says is “comparable” to this case. In Reitz, the plaintiff served the president of the defendant corporation just as the president was leaving his office accompanied by one or two other people. The president had previously talked with the plaintiffs attorney and knew what the papers were about. He handed them to the corporate controller, who was standing nearby, and told him that it was “another Tinker case” and that he should take care of it. The controller thought that the papers related to the Tinker case and placed them in that file instead of forwarding them to the corporation’s liability carrier. He had no previous experience with a summons and complaint. The trial court refused to set aside the ensuing default. We held that its action was an abuse of discretion.

The only significant similarity between Reitz and this case is that in each a corporate officer failed to transmit the summons and complaint to the carrier. In Reitz, the president gave what he believed were adequate instructions to the controller, who took what he thought was the proper action. The president knew what to do and thought that the controller would do it. He did not ignore the complaint. There was a *573failure to communicate, but not a failure to act. In this case, Koford did nothing for an undetermined period and then sent the papers to Nokes with no suggestion that he expected Nokes to do anything. Nokes, not surprisingly, did nothing until he heard from Koford, and even then Nokes did not realize the seriousness of the matter and failed to take steps to avoid the default. This case is not a story of a good faith attempt to appear that went awry but of a disregard for the seriousness of the matter.3

Many, perhaps most, defaulted defendants could probably come up with stories as good as this one. If we were to reverse the trial court’s refusal to set aside this default,4 no default will be good if the defendant attacks it within a reasonable time. As a result, the time for appearance would not be 30 days, as the legislature has provided, but 30 days plus a reasonable time to set aside the default. We believe that plaintiffs should be able to rely on the legislature’s determination of what is a reasonable time to appear and therefore affirm.5

Affirmed.

In December, 1986, the Council on Court Procedures adopted ORCP 69C, which explicitly permits the trial court to set aside an order of default for good cause shown. The change became effective after the events that led to the default order in this case and after the entry of that order.

Formerly, a defendant had only ten days to appear if served within the county where the action was commenced and 20 days if served elsewhere in the state. In 1977, the legislature changed the time to a uniform 20 days, if the defendant was served anywhere in the state. Or Laws 1977, ch 877, § 3. Two years later, the Council on Court Procedures and the legislature enacted the 30-day period when they adopted ORCP 7. Or Laws 1979, ch 284, § 9.

The dissent also relies on Hackett v. Alco Standard Corp., 71 Or App 24,691 P2d 142 (1984), rev den 298 Or 822 (1985). In that case, the responsible person failed to act on the basis of a mistaken belief that the defendant’s interests would be protected by a codefendant. Here, however, Koford’s delayed and insufficient response was not based on a “misapprehension that someone else would take care of the matter.” 97 Or App at 570. He simply kept the summons and complaint for nearly a month and then sent it on with no instructions to anyone to do anything.

For a discussion of our standard of review of motions to set aside default judgments, see Hackett v. Alco Standard Corp., supra n 3, 71 Or App at 33 n 7.

Defendant’s other arguments are without merit.