From Casetext: Smarter Legal Research

Scrase v. Bantle

Michigan Court of Appeals
Aug 13, 1980
297 N.W.2d 693 (Mich. Ct. App. 1980)


Docket No. 45564.

Decided August 13, 1980. Leave to appeal applied for.

Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich Rosen (by Steven G. Silverman), for plaintiff.

Harvey, Kruse Westen, P.C. (by Mark D. Shorys), for defendant on appeal.

Before: D.E. HOLBROOK, JR., P.J., and R.M. MAHER and CYNAR, JJ.

Plaintiff sued defendants in a wrongful death action arising out of an automobile accident in the State of Florida, in which plaintiff's decedent was killed. Defendants appeal as of right from a default judgment entered against them.

In granting default judgment against defendants the trial court relied upon Kiefer v The Great Atlantic Pacific Tea Co, Inc, 80 Mich. App. 590; 264 N.W.2d 71 (1978). An examination of the record and briefs indicates that Kiefer, supra, was properly applied to the facts in this case and that the trial court did not abuse its discretion by granting default judgment.


This matter was first noticed for trial on July 27, 1978, with a settlement conference scheduled one week prior to the trial date on July 20, 1978. The schedule of cases for trials and settlements set for Thursday, July 20, 1978, had the following notice printed at the bottom of the schedule:

"By the direction of the Honorable George R. Deneweth, the Plaintiff personally and a representative of the Defendant with authority to settle MUST be present at the scheduled settlement conference."

The parties appeared in court, with a representative of defendant's insurance carrier being present. The case was not settled, and trial commenced on July 27, 1978, but resulted in a mistrial.

The matter was then noticed for trial on November 8, 1978. The parties appeared, and, prior to trial commencing, plaintiff brought on a motion in limine which was argued and granted. Judge Deneweth then ordered the parties to appear one week later on November 14, 1978, for trial, but, because of a death in plaintiff's counsel's family, an adjournment was granted. Judge Deneweth, on his own motion, directed that the matter be placed on the mediation docket. The mediation conference took place on January 29, 1979, and plaintiff received an award of $130,000. Defendants accepted the mediation award. However, plaintiff rejected it.

Defense counsel was advised that a mandatory settlement conference was scheduled for May 4, 1979, while trial was noticed for May 10, 1979. The settlement conference did not take place on May 4, 1979. The court informed the parties that a settlement conference, rather than trial, would be conducted on May 10, 1979. On May 10, 1979, defense counsel and a representative from the Insurance Company of North America were present to discuss a settlement. While plaintiff's counsel appeared, plaintiff was not present. Plaintiff's demand on May 10, 1979, was $145,000. The trial judge indicated to defendants that if they could not secure authority to settle for $145,000 by the following day, trial would commence at 8:30 a.m. on May 11, 1979.

On the morning of May 11, 1979, the defendants increased their offer to $135,000, which was rejected. At Judge Deneweth's request, James Schloegel, insurance claims supervisor, called and advised the judge that a review committee in Philadelphia, Pennsylvania, had to be contacted to secure additional authority to settle the claim for a greater amount. Judge Deneweth ordered the committee to appear in court the same day. Schloegel advised the judge that he lacked authority to compel the committee to come to Michigan from Philadelphia. The judge indicated that he was following the doctrine laid down in Kiefer v The Great Atlantic Pacific Tea Co, Inc, 80 Mich. App. 590; 264 N.W.2d 71 (1978), and entered the default of the defendants for failure to have present, in accordance with the court's blanket order, a representative of the defendant with authority to settle.

After proofs on damages were taken, the trial court found damages totalling $163,464 and interest totalling $28,558.50 and entered a judgment to that effect on May 23, 1979. The motion to set aside the default judgment was denied.

In Kiefer, plaintiff brought suit against A P for injuries sustained in a parking lot shared by A P with other business establishments. Pursuant to Wayne County Court Rule 13.1, as then in effect, the case was noticed for settlement conference. At the conference, plaintiff settled with all defendants except A P. A P was represented by the conference by an attorney with authority to settle for $7,500. When plaintiff rejected the A P settlement offer, the trial court ordered A P's attorney to make the insurance adjuster responsible for the claim available to continue the settlement negotiations. The insurance adjuster failed to appear when notified and the trial court entered a default against the defendant. The Kiefer Court concluded:

For the language of the local court rule as in effect on the date the settlement conference was held in Kiefer, see Kiefer, supra, 592 n 1. Wayne County Court Rule 13.1 now provides:
"A mandatory settlement conference must precede the trial of a civil action. It is to be held immediately before the trial is scheduled to commence. Written notice that the settlement conference is to be held must be sent to the attorneys or parties in propria persona. The notice must contain the name of the judge to whom it is assigned and the time and date of the conference.
"The attorneys who will be trying the action, the litigants, and, if the defendant has an insurance carrier, a representative of defendant's insurance carrier with authority to settle must be present at this conference. If the action is not settled at the settlement conference, trial will commence immediately following the conference unless a trial judge is unavailable. If a trial judge is unavailable, the action must be returned to the `Spin-Off' calendar."

"The trial court did not abuse its discretion in granting default here. At the time the adjuster was contacted by A P's attorney, he was but seven blocks from the location of the conference. The trial court found that the refusal to appear was a `deliberate effort' to avoid the settlement conference. Deliberate efforts to avoid mandatory proceedings will result in the harsh consequence of a default judgment." 80 Mich. App. 594 -595.

The facts and circumstances in this case are not the same as in Kiefer. Here an insurance claims representative was personally present on each and every date except on the morning of May 11, 1979, since, on that date, defendants were under the impression trial would commence. All the same, on May 11, 1979, Mr. Schloegel, the local insurance claims supervisor, was available for an immediate appearance. However, the court ordered the appearance of the claims committee from the home office in Philadelphia. On several occasions, insurance representatives were present for settlement conferences, although they were not consulted. The insurance claims representative was extended actual authority to settle the matter in the amount of $135,000. There was no "deliberate effort" to avoid the settlement conference.

It would be error to default plaintiff for not reducing the demand to settle to $140,000 or $135,000. If settlement was not possible, either side had a right to have the matter tried on the merits. Much settlement discussion took place in this matter. Each side was represented by highly recognized as well as respected counsel. Both sides were strong in their position to go to trial on the matter unless the settlement was according to their respective terms.

I respectfully maintain the defendant should not have been subjected to the harsh consequences of a default judgment under the facts in this case, and I would reverse.

Summaries of

Scrase v. Bantle

Michigan Court of Appeals
Aug 13, 1980
297 N.W.2d 693 (Mich. Ct. App. 1980)
Case details for

Scrase v. Bantle

Case Details

Full title:SCRASE v BANTLE

Court:Michigan Court of Appeals

Date published: Aug 13, 1980


297 N.W.2d 693 (Mich. Ct. App. 1980)
297 N.W.2d 693