Judgment of Dismissal Overturns $1 Million Default

Judgment of Dismissal Overturns $1 Million Default

In Aguilera v. Cruz and Farley, DAR’s team of John Brydon, Edward Tugade, and Lisa Pan secured a dismissal after Plaintiff entered a default against our clients for $1.034 million in damages.

The case involved an insured who lost control of her vehicle, causing Plaintiff’s vehicle to roll over.  Rather than accept a pre-suit settlement with the insurer, Plaintiff filed suit and claimed difficulty locating and serving defendants.  After refusing the insurer’s offer to accept service if Plaintiff limited the recovery to policy limits, Plaintiff served the insured by publication, and took a default judgment.

We successfully challenged the order for service by publication by arguing that the declaration of inability to serve was unsigned and that publication was made in a county where defendants did not reside.  The court agreed, set aside the default, and ordered Plaintiff to re-serve defendants.  Plaintiff delayed and then attempted substituted service on one insured and obtained another order for service by publication on the other insured.

We moved to quash the substituted service and again challenged the order for service by publication as procedurally defective.  We further moved to dismiss the action based upon failure to serve defendants within three year of the filing of the complaint.  The Court granted the motion and dismissed the complaint against both insureds.  The Court further denied Plaintiff’s motion to vacate the dismissal and for a new trial, awarding our clients their costs.

Plaintiff has appealed.

 

 

 

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