Tort Law

The  cases below are a compilation of cases from the Virginia Supreme Court summarized by Brien Roche dealing with the topic of default judgment and the related topic of personal injury. For more information on default judgment issues see the pages on Wikipedia.

Default Judgment-Statutes

See Va. Code § 8.01-428 as to setting aside defaults.

Default Judgment-Cases

2015 Sauder v. Ferguson, 289 Va. 449, 771 S.E.2d 664.
Plaintiff’s Motion to Vacate Default Judgment in this auto accident case was properly denied.

2005 State Farm Mut. Auto. Ins. Co. v. Remley, 270 Va. 209, 618 S.E.2d 316.
After suit papers were served on defendant, he called office of plaintiff’s counsel more than once and spoke with secretary of plaintiff’s counsel who advised him that the insurance company would take care of it. On May 3, 2004, a default judgment was entered. On that same day, the defendant filed an Answer. Thereafter, the defendant filed a Motion to Compel as to outstanding discovery and finally on June 8, 2004, plaintiff’s counsel sent a letter to defense counsel informing him of the entry of a default judgment. That conduct by plaintiff’s counsel does not constitute fraud and is not a basis for setting aside the judgment. Intrinsic fraud constitutes perjury, forgery, or other incidents of the trial related to issues material to the judgment. Extrinsic fraud is conduct which prevents a fair submission of the controversy to the court. Neither type of fraud exists in this case. The default judgment was not set aside.

2004 Lifestar Response of Md., Inc. v. Vegosen, 267 Va. 720, 594 S.E.2d 589.
The plaintiff served defendant with motion for judgment but not with notice of motion for judgment. Service is defective and default judgment is set aside. Va. Code § 8.08-288 does not save this deficiency from being fatal as to the default judgment. This code section is designed to cure defects in the manner in which process is served. It cannot cure defects in the process itself.

2003 Ryland v. Manor Care, Inc., 266 Va. 503, 587 S.E.2d 515.
Default judgment had been entered in circuit court against defendant. Defendant filed separate chancery action to ask that default judgment not be enforced. Trial court granted that request on grounds that counsel who had agreed to file response did not do so due to conflict of interest, but did not advise defendant of that until three days after pleadings were due. New counsel was retained and motion for relief from default was filed. The elements of such an independent action in equity for relief from default are that the judgment ought not in good conscience be enforced, a good defense exists, fraud, accident, or mistake prevented the defendant from raising his defense, the absence of fault or negligence on the part of the defendant, and the absence of any adequate remedy at law. Those criteria were met here.

2000 Media Gen., Inc. v. Smith, 260 Va. 287, 534 S.E.2d 733.
Trial court dismissed bill of complaint filed pursuant to Va. Code § 8.01-428(D), in which defendant sought to set aside default judgment. In this case, there was fault on the part of the party bringing the action and that fault barred this claim. The court found that in an action filed under this section, the party must show that default judgment should not, in equity and good conscience, be enforced, that it has a good defense, that fraud, accident, or mistake prevented it from obtaining the benefit of its defense and that, there is an absence of fault or negligence by the defendant and that, there is an inadequate remedy at law. In this case, there was negligence in the terms of the handling of this matter on the part of the company bringing the action and therefore, the claim is properly dismissed.

1992 Charles v. Precision Tune, Inc., 243 Va. 313, 414 S.E.2d 831.
Error to set aside default judgment in absence of proof of fraud, void judgment, or proof of accord and satisfaction. Independent action may be filed to relieve one party from a judgment if: (1) judgment ought not in good conscience and equity be enforced, (2) good defense exists, (3) fraud, mistake or accident which prevented defendant from obtaining benefit of defenses, (4) absence of fault or negligence on part of defendant, and (5) no adequate remedy at law.

1990 Dennis v. Jones, 240 Va. 12, 393 S.E.2d 390.
Service through D.M.V. on defendant who is resident of Virginia. Service defective. Default judgment set aside and dismissed with prejudice due to failure to serve within one year under Rule 3:3, Sup. Ct. Rules.

1988 Jackson v. Jackson, 236 Va. 199, 372 S.E.2d 155.
Defendant may have extension of time to answer if he makes proper application and shows reasonable cause. Otherwise rules are to be applied according to their terms. In this case, civil warrant in district court removed to circuit court based on defendant’s affidavit of substantial defense. Defendant thereafter directed to file appropriate response to motion for judgment filed in circuit court. Defendant did not respond. Affidavit of substantial defense is not pleading. Default judgment upheld.

1987 Wilcox v. Lauterbach Elec. Co., 233 Va. 416, 357 S.E.2d 197.
Default judgment set aside by Supreme Court. Trial court ruled that responsive pleadings had been timely filed but additional responsive pleadings were necessary. Defendant had not ignored Court or its process, had not attempted to delay, opposed motion for default and sought to have it set aside.

1986 Basile v. American Filter Serv., 231 Va. 34, 340 S.E.2d 800.
Plaintiff properly obtained long arm service on foreign corporation and obtained default judgment. Language of Va. Code § 8.01-428 has been construed narrowly in interest of finality of judgments. Defendant in this case had no actual notice although evidence indicated that notice would have been delivered to their post office box.

1982 National Airlines v. Shea, 223 Va. 578, 292 S.E.2d 308.
Bill of complaint to enjoin enforcement of default judgment was denied by trial court on grounds that remedy at law adequate. In this case default judgment was obtained by misleading defendant into thinking continuance had been agreed upon. This was fraudulent and should be set aside.

1976 Overnite Transp. Co. v. Barnett’s, Inc., 217 Va. 222, 227 S.E.2d 695.
Where default was entered in general district court and defendant appealed to circuit court but did not file responsive pleadings within 21 days, defendant was not in default in circuit court.

1972 Federal Realty & Dev. Corp. v. N. Litterio & Co., 213 Va. 3, 189 S.E.2d 314.
Trial judge can reverse default judgment only for errors for which Supreme Court might reverse judgment. In absence of such grounds, not error to deny motion to set aside judgment.

1968 Funkhouser v. Million, 209 Va. 89, 161 S.E.2d 725.
Presentation of evidence as to how and why accident occurred was not waiver of right to default judgment. Failure to plead responsively was admission that plaintiff is entitled to recover some damages, acknowledgement of negligence and concession of no contributory negligence. Only remaining issue is amount of damages; evidence of how accident occurred is irrelevant and immaterial.

1968 St. Paul Mercury Ins. Co. v. Nationwide Mut. Ins. Co., 209 Va. 18, 161 S.E.2d 694.
While failure of defendant to appear and answer constitutes admission of all material facts pled, it does not admit legal conclusions. Trial court must consider admitted facts and determine liability if any.

1967 Chappell v. Smith, 208 Va. 272, 156 S.E.2d 572.
Where defendant is in default, he can make no defense on merits and participation is limited to cross-examination of plaintiff’s witnesses as to damages, offering evidence to mitigate damages, request and object to instructions and address the jury.

1964 Daniel v. Truck & Equip. Corp., 205 Va. 579, 139 S.E.2d 31.
Where order granting plaintiff leave to amend does not specify response time of defendant, defendant is not in default after 15 days.

1963 Levine v. Lacy, 204 Va. 297, 130 S.E.2d 443.
Defendant served on February 13. On March 9 he removed case to federal court and filed answer and counterclaim; however, as no answer was filed in state court, federal court remanded case to state court and default judgment was entered against defendant.

1960 Turner v. Burford Buick Corp., 201 Va. 693, 112 S.E.2d 911.
No abuse of discretion for allowing defendant to file answer beyond 21 days.

1957 Cooper v. Davis, 199 Va. 472, 100 S.E.2d 691.
Defendant was served in person but failed to respond until four months after service. Default judgment properly entered. Even though default judgment had been entered, defendant was permitted to argue quantum of damages.

1957 Williams v. Service, Inc., 199 Va. 326, 99 S.E.2d 648.
Filing of motion for bill of particulars is not responsive pleading. Allowance of further time in which to file responsive pleading is within sound discretion of trial court. Prejudice is factor court considered in such filing.