G&S recently represented a client who was sued by a tenant who broke her wrist in a slip and fall due to snow/ice in the driveway despite having been sued five years earlier by the same tenant and same attorney for the same injury, due to the same condition (snow and ice) in the same location! Our client believing that lighting could not possibly strike twice in the same location thought the papers related to the old action despite our having settled it years before. Our insured failed to report the claim and five months later the tenant obtained a default judgment against him.
Upon retention, Mr. Weitman with assistance from Associate Mark Walsh, had a steep burden to overcome to establish our insured reasonably ignored the summons and complaint. Typically, misreading or mishandling a complaint does not constitute a reasonable excuse for default. Rather, the fault must lie with the court, the plaintiff or a third party for causing the default.
Notwithstanding, after an evidentiary hearing where both the plaintiff and the defendant testified, Mr. Weitman convinced the court that the insured had a reasonable excuse for the default based on his mistaken belief the new summons and complaint related to the old lawsuit.
Mr. Weitman and Mr. Walsh also established a meritorious defense to the accident itself based on certified weather records which established that the second accident occurred during a snowstorm and before the law required the landlord to commence snow removal operations. Based on Mr. Weitman’s motion, the Court vacated the default.
Now it is the plaintiff that has the steep burden of proof–to overcome the storm in progress doctrine and if she can, prove to a jury that lighting does indeed strike twice in the same location.