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Default: When a Defendant Fails to Answer Your Lawsuit

Posted by Benjamin P. Melnick | Aug 25, 2020 | 0 Comments

There are many different reasons that a personal injury case might need to move into litigation. Once that happens, the case can be delayed, and it can feel like it takes a long time to get anywhere. For that reason, we often look for ways to speed the process along. One of them is moving for a Default.

A default is an order from the court finding that the defendant failed to respond in an appropriate amount of time. The process of starting a lawsuit begins with the filing of a Complaint, which outlines the basis for the dispute between the parties. The Complaint has to be served on the party against whom the Complaint is brought. That starts a clock running.

If the defendant fails to respond in a certain amount of time, he or she is in default. The specific times and procedures for this vary between Oregon and Washington. Unfortunately, asking a court to find that a party is in default does not usually get the case very far. As a practical matter, it is very easy for a defendant to successful set the default aside. But in some instances, it can be helpful.

In a typical case, after the Complaint is served, the defendant will turn the documents over to his or her insurance company. The insurance company will hire a lawyer to defend the case, including timely filing of an Answer. In probably over half of the car accident cases I handle, the Answer will deny liability—this is even true for rear-end crashes. It may also deny that my client was injured and the nature and extent of the injuries, even though the insurance company has medical records supporting the injury. For many clients, it can be frustrating, time-consuming, and burdensome to get this changed.

However, if the Answer is not filed on time, or if the defendant simply forgot to turn the documents over to the insurance company, the defendant might be in default. To get out of this, the defendant's lawyer needs to ask the court for permission. The court will usually grant this motion; sometimes it comes with a nominal amount of attorney fees to be awarded.

Other times, the court will only allow the Order of Default to be set aside in part. The defense has to show that it has a good faith defense on all or part of the case. This could result in the defense being unable to set aside the default on liability, or on some parts of the damages: for example the medical expenses or wage loss.  It is really a neat tool if all goes according to plan. If the defense cannot meet its burden and get the default set aside, there can be separate hearings that resolve the case without the usual three ring circus of discovery. But as indicated above, that does not always happen.

Regardless, it is helpful to know all the tools in the toolkit for a personal injury attorney to move the clients' cases forward. Default can be valuable in some circumstances, but it should generally be used pretty sparingly because of its overall lack of staying power.

About the Author

Benjamin P. Melnick

Ben Melnick joined the firm in 2018. He graduated from Washington State University with a Bachelor's degree in 2010, and went on to earn his Juris Doctorate from Gonzaga University School of Law. In 2016, he was named as the Clark County Bar Association's Rising Star. His practice focuses on personal injury, auto accidents, biking accidents, wrongful death, and insurance disputes. Outside work, Ben likes spend time with his wife outdoors—mostly running, hiking, and skiing—and playing soccer.

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