Terry Berg v. Gregory Packard

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
TERRY BERG, No. 80119-8-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
GREGORY PACKARD, SOUTHERN
GLAZER’S WINE AND SPIRITS OF
WASHINGTON, LLC, DOES I-V, and
ROES CORPORATIONS VI-X,
inclusive,
Respondents.
LEACH, J. - Terry Berg appeals a trial court order vacating a default judgment
obtained against Gregory Packard and Southern Glazer’s Wine and Spirits, LLC
(“Packard”). Because Berg does not show that the trial court abused its discretion,
we affirm.
BACKGROUND
Terry Berg was injured when a car driven by Gregory Packard rear-ended
Berg’s vehicle. Berg’s efforts to settle his claim with Packard’s insurance company
failed. So, Berg sued Packard. He served Packard on March 8, 2019, and March
9, 2019, and filed the lawsuit on April 5, 2019. After Packard did not respond within
the allotted time, on April 18, 2019, Berg obtained an order of default against
Packard.
Citations and pincites are based on the Westlaw online version of the cited material.
No. 80119-8/2
The same day, he filed a motion he called an ex parte motion of default
requesting a default judgment. He supported this motion, with his attorney’s
declaration and Berg’s declaration, to which medical bills were attached. He did
not provide any declaration from a healthcare provider. A court commissioner
entered an order stating, “Please supplement the request for non-economic
damages with further evidence (i.e. jury verdicts) and resubmit the submission
through Ex Parte via the Clerk, including a copy of this Order.” In response, Berg
filed a supplemental ex parte motion for default judgment to which he attached
reports of settlements/jury verdicts in similar cases.
The court entered the default judgment against Packard with these findings
on April 19, 2019:
1. Defendants Gregory Packard and Southern Glazer’s Wine and Spirit of
Washington, LLC (collectively “Defendants”) were properly served with the
Complaint and Summons in this matter.
2. Defendants have not entered an appearance in this matter.
3. Defendants are jointly and severally liable for the accident complained of
in Plaintiff’s Complaint (the “Accident”).
4. Plaintiff carries no fault in the Accident.
5. Plaintiff was severely injured in the Accident.
6. Plaintiff’s economic damages caused by the Accident equal $63,773.33.
7. Plaintiff’s non-economic damages caused by the Accident equal
$250,000.00.
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Berg notified Packard of the default judgment. Packard filed a motion to
vacate the default judgment on May 1, 2019. After Berg requested oral argument
in opposition, the court informed the parties that Packard needed to re-note the
motion. Packard filed a second motion to vacate the default judgment and noted
it to be heard without oral argument. The court granted Packard’s second motion
without oral argument and vacated the default judgment. Berg appeals.
STANDARD OF REVIEW
We review a trial court’s decision to vacate a default judgment for abuse of
discretion. 1 A trial court abuses its discretion when its decision is manifestly
unreasonable, or based on untenable grounds, or exercised for untenable
reasons. 2
ANALYSIS
Berg claims the trial court abused its discretion when it granted Packard’s
motion to vacate, because Packard failed to meet his burden of proof as a matter
of law. Generally, Washington courts do not favor default judgments based on an
overriding policy that prefers the resolution of disputes on the merits. 3 We assess
the trial court’s decision in light of a case’s particular facts and circumstances. We
1 Yeck v. Dep’t of Labor & Indus., 27 Wash. 2d 92, 95, 176 P.2d 359 (1947).
2 Mayer v. Sto Indus., Inc., 156 Wash. 2d 677, 684, 132 P.3d 115 (2006).
3 Little v. King, 160 Wash. 2d 696, 703, 161 P.3d 345 (2007).
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No. 80119-8/4
are less likely to reverse a trial court decision that sets aside a default judgment
than a decision that does not. 4
In deciding a motion to vacate a default judgment under CR 60(b), the trial
court considers two primary and two secondary factors, which the moving party
must address: (1) that there is substantial evidence to support, at least prima facie,
a defense to the claim asserted by the opposing party; (2) that the moving party’s
failure to timely appear and answer was due to mistake, inadvertence, surprise, or
excusable neglect; (3) that the moving party acted with due diligence after notice
of the default judgment; and (4) that the opposing party will not suffer substantial
hardship if the default judgment is vacated. 5
A trial court may vacate a default judgment “if there [is] not substantial
evidence to support the award of damages.” 6
Packard met the two secondary factors. He responded quickly after
receiving notice of the default judgment, and Berg has not shown that vacating the
judgment would cause any hardship.
This leaves the two primary factors, (1) whether Packard has identified
evidence to support at least a prima facie defense, and (2) whether Packard’s
failure to appear was due to excusable neglect or was not willful.
4 Showalter v. Wild Oats, 124 Wash. App. 506, 510-11, 101 P.3d 867 (2004).
5 Little, 160 Wash. 2d at 703-04 (citing White v. Holm, 73 Wash. 2d 348, 352, 438 P.2d
581 (1968); Showalter, 124 Wash. App. at 511; Johnson v. Cash Store, 116 Wash. App.
833, 841, 68 P.3d 1099 (2003).
6 Shepard Ambulance, Inc. v. Helsell, Fetterman, Martin, Todd & Hokanson, 95
Wash. App. 231, 242, 974 P.2d 1275 (1999).
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No. 80119-8/5
Prima Facie Defense
Berg first claims that because Packard failed to offer evidence, that the
amounts in the default judgment were excessive or unreasonable, he did not
present a prima facie defense.
The trial court examines the evidence and reasonable inferences in the light
most favorable to the moving party to determine whether there is substantial
evidence of a prima facie defense. 7
Packard asserts he demonstrated a defense because Berg did not provide
any evidence, other than medical bills and his own declaration, to show that the
medical costs were reasonable and necessary.
A plaintiff in a negligence case may recover only the reasonable value of
medical services received and not the total of all bills paid. 8 The plaintiff must
prove that medical costs were reasonable and necessary and cannot rely solely
on medical records and bills to do this. 9 In other words, medical records and bills
are relevant to prove past medical expenses only if supported by additional
evidence that the treatment and the bills were both necessary and reasonable.
First, Berg’s medical records may indicate that he had pre-existing medical
conditions related to the treatment described in the medical bills he submitted with
his motion for default judgment. Jackie Jensen Erler, Packard’s attorney, reviewed
7 Pfaff v. State Farm Mut. Auto. Ins. Co., 103 Wash. App. 829, 834, 14 P.3d 837
(2000).
8 Torgeson v. Hanford, 79 Wash. 56, 58-59, 139 P. 648 (1914).
9 Nelson v. Fairfield, 40 Wash. 2d 496, 501, 244 P.2d 244 (1952); Carr v. Martin, 35
Wash. 2d 753, 761, 215 P.2d 411 (1950); Trudeau v. Snohomish Auto Freight Co.,
1 Wash. 2d 574, 585-86, 96 P.2d 599 (1939); Torgeson, 79 Wash. at 58-59.
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the medical records and found that Berg had carpal tunnel symptoms before the
accident. She also stated that his records demonstrate long-standing degenerative
changes throughout the spine, a history of a lumbar disc fusion two years before
the accident, and a history of prior headaches.
Second, Berg acknowledges he failed to provide the evidence needed to
prove his treatment was reasonable or necessary. So, the record does not support
that part of the default judgment awarding treatment costs. So, Packard identified
substantial evidence of a prima facie defense.
Appearance
Berg next claims that Packard provided no explanation for his failure to
answer the complaint. He is correct.
“If a ‘strong or virtually conclusive defense’ is demonstrated, the court will
spend little time inquiring into the reasons for the failure to appear and answer,
provided the moving party timely moved to vacate and the failure to appear was
not willful.” 10 But when the moving party’s evidence supports no more than a prima
facie defense, the reasons for the failure to timely appear will be scrutinized with
greater care. 11
Here, while Packard did not respond to the lawsuit within 20 days of being
served, Packard asserts he did not receive notice that Berg filed the lawsuit, and
that Berg “almost immediately obtained a default judgment thereafter.” This does
not explain his failure to respond. So, this factor weighs against vacating the
10 Johnson, 116 Wash. App. at 841 (quoting White, 73 Wash. 2d at 352).
11 Johnson, 116 Wash. App. at 842; White, 73 Wash. 2d at 352-53.
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default judgment. Berg cites no authority for his apparent position that this single
factor controls a trial court’s decision.
Equity
Berg next claims that it was not equitable to vacate the default because
Packard presented no evidence supporting his contention that Berg’s total
damages were unreasonable or unnecessary. But, because Packard proved that
Berg’s medical expense damages were unsupported by the requisite evidence and
raised issues about pre-existing conditions applicable to both his economic and
noneconomic damages, Packard satisfied his burden of establishing a prima facie
defense to Berg’s damage claim.
Oral Argument
Finally, Berg claims the trial court should have been required to conduct oral
argument. He cites no persuasive authority to support this claim.
Attorney Fees
Packard requests attorney fees claiming Berg’s appeal is frivolous. We
disagree. Berg had a good faith argument in advancing his concerns about the
validity of the default judgment.
CONCLUSION
We affirm. The trial court did not abuse its discretion in its consideration of
the factors to weigh when determining whether to vacate a default judgment.
WE CONCUR:
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