Opinion
No. 54471-3-I
Filed: April 11, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 01-2-09374-4. Judgment or order under review. Date filed: 03/05/2004. Judge signing: Hon. Anita L. Farris.
Counsel for Appellant(s), Stephen Henry Jr. Good, Attorney at Law, 2929 Wetmore Ave, PO Box J, Everett, WA 98206-1577.
Counsel for Appellant(s), Joseph P. Wilson, Attorney at Law, 3014 Hoyt Ave, Everett, WA 98201-4005.
Counsel for Respondent(s), Jeffrey Twersky, Attorney at Law, 1604 Hewitt Ave Ste 301, Everett, WA 98201-3536.
A defendant informally appears in an action when he or his agent engages in activity that demonstrates an intent to defend. A claims representative from the defendants' insurance company communicated by letter and telephone with the plaintiff's attorney to discuss settlement before the complaint was filed. This communication and discussion evidenced an intent to defend and constituted an informal appearance. The trial court did not abuse its discretion in setting aside the default judgment and in denying the motion for revision.
FACTS
On November 23, 1998, Sherri Morin and Jeffrey Barth were involved in an automobile collision while they were driving on Interstate 5. Morin's insurance company was unable to locate a policy under Barth's name. In a telephone call to Barth, Morin learned that Barth's mother, Bonnie Burris, was the insured under a Farmer's Insurance Company (Farmer's) policy.
On December 16, Keith Haupt, a Farmer's claims representative, issued Morin a check for the property damage to her car. Morin told Haupt she was seeing a doctor as a result of the collision, and Haupt said he would keep in touch.
On July 9, 1999, Morin contacted Haupt to discuss settlement. Haupt said he would request Morin's medical bills and get back to her in two to three weeks. On November 2, 1999, Morin called Haupt's supervisor because she had not heard from Haupt. Haupt called her the next day and said he had not received the records from the doctor. At this time, Haupt offered Morin $1,500 and a possible review of $2,200 in medical bills. Morin did not agree to this, and Haupt said that he would need to get the medical records.
On May 16, 2001, Haupt received a letter from John Good as attorney on behalf of Morin. On June 8, Haupt received a demand letter for the amount of $15,000 from Good. Morin's medical records were attached to this letter. Haupt responded by letter dated June 22, stating that he would discuss a settlement but would need medical records. In a telephone conversation on June 29, Haupt made an offer; Good rejected it and did not make another demand.
On November 2, 2001 Good filed a complaint on Morin's behalf. On May 24, 2002, 11 months later, Good obtained a default order. On December 3, 2002 he obtained a default judgment. On December 8, 2003, Good sent a letter to Haupt demanding payment of the default judgment. On December 19, 2003, Good received a letter from an attorney hired to represent Barth and Burris. On February 6, 2004, respondents filed a motion to vacate the default judgment. The trial court granted this motion. Morin appeals the order setting aside the default judgment and the trial court's denial of Morin's motion for revision.
DISCUSSION
Morin contends the trial court abused its discretion in granting Barth's and Burris's motion to set aside the default judgment. This court reviews such a decision for abuse of discretion, evidenced by a decision that is manifestly unreasonable, based on untenable grounds, or on untenable reasons. Batterman v. Red Lion Hotels, 106 Wn. App. 54, 58, 21 P.3d 1174 (2001).
Morin argues that Barth and Burris did not appear in this action, and that the default judgment was properly granted. Under CR 55, a party seeking a default judgment must first give notice to a defendant who has `appeared in the action.' Batterman, 106 Wn. App. at 58. `Default judgments are disfavored because "[i]t is the policy of the law that controversies be determined on the merits rather than by default.' Colacurcio v. Burger, 110 Wn. App. 488, 495, 41 P.3d 506 (2002). In light of this attitude toward defaults, the courts construe appearance broadly. Batterman, 106 Wn. App. at 61. `Default judgments are normally viewed as proper only when the adversary process has been halted because of an essentially unresponsive party.' Colacurcio, 110 Wn. App. at 494. It is uncontested that there was no formal appearance in this action; the question is whether the payment of the property damage claim and the two letters and one telephone conversation between Good and Haupt regarding the insurance claim constituted an informal appearance so as to require notice to Barth and Burris before Morin could obtain a default judgment.
`Whether a party has `appeared . . . is generally a question of intention, as evidenced by acts or conduct, such as the indication of a purpose to defend or a request for affirmative action from the court, constituting a submission to the court's jurisdiction.' (Some quotation marks omitted.)' City of Des Moines v. $81,231, 87 Wn. App. 689, 696, 943 P.2d 669 (1997). Morin argues that Barth and Burris's failure to do anything during the six months between the filing of the complaint and the entry of the order shows no intent to defend the action. We disagree. In Batterman this court noted that `[a] defendant who is interested in reviewing records for the purpose of ascertaining the value of a claim is not an essentially unresponsive party.' Batterman, 106 Wn. App. at 62. Good and Haupt engaged in settlement discussions before Good filed the complaint, and Haupt requested documents so that he could review the claim. This action by Haupt evidences an intention to defend. And there is no requirement that the defendant himself signify an intent to defend; the acts showing this intent may be those of the defendant's agent. Batterman, 106 Wn. App. at 62. As the insurance claims representative, Haupt was Barth and Burris's agent.
In Batterman and in Skilcraft Fiberglass, Inc. v. Boeing Company, 72 Wn. App. 40, 863 P.2d. 573 (1993) the settlement discussions occurred before and after filing the action. However, neither decision indicates it turned on the fact that the discussions continued after the filing of the action. Whether actions sufficiently show an intent to defend is a question of fact for the trial court, and we will not substitute our judgment on this issue. The trial court did not abuse its discretion in vacating the default judgment and denying the motion for revision.
Morin also argues that the insurance company was only the agent of Burris, its insured. We will not consider theories or arguments different from those advanced at trial. Walker v. State, 121 Wn.2d 214, 218, 848 P.2d 721 (1993).
CONCLUSION
We affirm.
ELLINGTON and COLEMAN, JJ., Concur.