Wright v. Brown

HALL, Justice:

The Traveler’s Insurance Company, hereinafter referred to as “Travelers” appeals a default judgment entered in favor of plaintiff, hereinafter referred to as “Wright,” and against defendant, hereinafter referred to as “Brown.”

Wright’s action was for personal injuries sustained while pushing a stalled vehicle and being struck from the rear by a vehicle driven by Brown, an uninsured motorist. The driver of the stalled vehicle, Claudia West, was insured by Travelers and Wright was insured by Automobile Insurance Company of Hartford, hereinafter referred to as “Aetna.” Wright sued Aetna (her own insurer) and it in turn joined Brown and Travelers as third-party defendants, alleging Travelers had the primary coverage.

Both Travelers and Aetna moved for summary judgment, relying upon Christensen v. Peterson¹ and it was granted. Wright then amended her complaint so as to proceed solely against Brown who was then a member of the U.S. Air Force, serving outside the State of Utah. Consequently, he was served pursuant to the non-resident motorist statute² which prompted a special appearance by counsel to challenge the court’s jurisdiction. The motion failed and after notice to Travelers and Aetna, default judgment was taken although one day prior thereto a further motion was filed to stay proceedings based on the provisions of the Soldiers’ and Sailors’ Civil Relief Act. This prompted the filing of a motion to set aside the default judgment which was also denied.

Garnishments were issued and served upon Travelers and Aetna seeking payment of the default judgment and they answered denying liability. Thereafter, Travelers filed this appeal.

It is obvious from the foregoing that Travelers is no longer a party to the action before us having been dismissed out on its own motion. It is a party to the garnishment proceeding only, and since that matter has not yet been determined, it is not a final judgment from which an appeal may be taken.³ As a consequence, Travelers has no standing to take this appeal.

Wright and Brown are the only parties left in the action which resulted in a judgment by default. Neither has seen fit to take an appeal therefrom, hence the matter appears to be res judicata.

In response to Travelers plaint of no opportunity to contest liability and damages, and, if in fact the time is nigh to alter the course of the law as set forth in Christensen v. Peterson and Kesler v. Tate,⁴ we necessarily must await a time when jurisdiction is properly conferred upon us by a valid appeal.

The appeal is dismissed and costs awarded to Wright.

MAUGHAN and WILKINS, JJ., concur.

1 . 25 Utah 2d 411, 483 P.2d 447 (1971), which holds that a plaintiff may not join its own insurer as a party defendant with an uninsured motorist tort-feasor. See also, Kesler v. Tate, 28 Utah 2d 355, 502 P.2d 565 (1972), holding an insurer cannot intervene as a defendant in an action by its insured against an uninsured motorist tort-feasor.

2 . U.C.A.1953, 41-12-8.

3 . Rule 72(a), U.R.C.P.

4 . Supra, note 1.