On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0813-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Skillman.
Plaintiff Metropolitan Group Property and Casualty Insurance Company filed suit against defendant Joseph Lopez-Soto*fn1 to recover $37,962.59 it paid to its insured Randy Browning in compensation for property damage caused during an accident on June 15, 2009. It is undisputed that the accident occurred when Lopez-Soto rear-ended Browning while towing a trailer.
According to the certification filed by Lopez-Soto's attorney in support of his motion to vacate a default judgment plaintiff obtained against him, he never provided the insurer with a copy of the summons and complaint nor did he forward notice of the motion to enter a default judgment. The Rule 4:50 motion to vacate the default was denied on June 24, 2011, and that decision is now appealed.
We affirm, essentially for the reasons stated by the trial judge:
On April 22, 2011 MetLife sent correspondence to Allstate requesting the prorata limits with regard to Lopez-Soto whom Allstate insures. Allstate was unaware of the litigation. Allstate now seeks to defend this matter and vacate default judgment. This is governed by [Rule] 4:50. And, here an application to vacate default judgment is used with great liberality and every ground for indulgence is tolerated to the end that a just result is reached. That's the Marder v. Realty Construction case, 84 N.J. Super. 313 [(App. Div.), aff'd, 43 N.J. 508 (1964)]. The motion, however, should never be granted unless the defendant's failure to answer or appear was excusable and the defendant has a meritorious defense. Same case.
The Court in Mancini [v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330 (1993)] held that carelessness may be excusable when attributable to an honest mistake that is compatible with due diligence or reasonable prudence. Here, the plaintiff MetLife opposes the motion because it contends that excusable neglect must be shown by the defendant, not the defendant's insurance carrier.
There is no reason provided as to why Lopez-Soto failed to respond to the summons, complaint, and default. Further, there is no meritorious defense as the brakes were inspected and nothing was found to be wrong according to the police report. Additionally, challenges to damages should have occurred prior to the entry of default judgment.
So, I agree with [p]laintiff MetLife's position. There is no excuse as to why Lopez-Soto, as opposed to Allstate, failed to answer without an excuse as to why there was a failure to answer, the motion will be denied. And, I'll sign the order.
Lopez-Soto contends that the trial judge abused his discretion in denying the motion to vacate the default. He argues that a meritorious defense exists and that he should have been given the opportunity to be heard regarding the amount of the judgment before it was entered.
An application to vacate a default judgment is "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder, supra, 84 N.J. Super. at 319. However, a default judgment will be disturbed only when the failure to answer or otherwise appear and defend was excusable under the circumstances and the defendant has a meritorious defense. Goldhaber v. Kohlenberg, 395 N.J. Super. 380, 391 (App. Div. 2007).
In this case, as the trial judge noted, no fact is even proffered constituting excusable neglect on the part of Lopez- Soto. In the absence of excusable neglect, we cannot find that the court abused its discretion. See Hous. Auth. of Town of Morristown v. Little, 135 N.J. 274, 283 (1994). An abuse of discretion occurs when "the decision [is] made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis." U.S. ex rel USDA v. Scurry, 193 N.J. 492, 504 (2008). Indeed, it would have been an abuse of discretion for the court to have granted the application to vacate the judgment in the absence of excusable neglect. See Pressler ...