TACOMA, Wash. (Legal Newsline) - A lawyer who rebuffed Dollar Tree’s repeated attempts to contact him about settling a slip-and-fall case helped his client win $241,000 by default, an appeals court ruled, reversing a trial judge’s decision to set aside the judgment.
Dollar Tree’s failure to raise one key argument before the trial judge and a one-year statute of limitations preventing it from raising the other on appeal sealed its fate, the Washington Court of Appeals, Division II, ruled in a Jan. 10 unpublished opinion.
Maria Hanes claimed she slipped and fell in the Graham, Wash., Dollar Tree store in December 2017 after stepping “on a pile of metal objects.” She said she suffered pain in various limbs that recovered quickly with physical therapy, but she needed surgery on her right foot and still experiences pain and swelling.
Her lawyer sent a letter to Sedgwick Claims Management Services, Dollar Tree’s insurance claims adjuster, in February 2018 but stopped communicating with Sedgwick for a year until sending a demand letter in November 2019. Sedgwick responded with a counteroffer in January 2020. Instead of replying, Hanes sued Dollar Tree that month and served the company on Feb. 3, 2020.
On Feb. 25, her lawyer moved for a default judgment because Dollar Tree hadn’t appeared in court to defend itself. The trial judge granted the motion the following day. Meanwhile, Sedgwick continued to contact Hanes’ lawyer more than 30 times between January and August 2020, speaking to him only twice. Once he said he didn’t have a counteroffer and would follow up. The second time he said he was busy and couldn’t discuss his client’s claim. Hanes’ lawyer later said he never told Sedgwick he was considering Dollar Tree’s settlement offer and once the lawsuit was filed, he “purposely avoided any behavior or action that could be construed as negotiation behavior.”
Sedgwick closed the claim in September 2020 after failing to speak with Hanes’ lawyer for months. In October, Hanes won a default judgement for $241,071.79. After waiting more than a year, her lawyer served Dollar Tree with the judgment, demanding payment. The retailer moved to vacate the judgment, arguing it had “substantially complied” with appearance back in 2020 by contacting Hanes’ lawyer 34 times in an attempt to settle the case. Dollar Tree also argued Hanes’ lawyer had improperly concealed the litigation from it. Finally it argued its non-appearance should be excused because of mistake or inadvertence.
The trial judge agreed and vacated the judgement. But the appeals court reinstated it, calling the judge’s order an abuse of discretion.
Before the trial judge, Dollar Tree cited a 2007 decision by the Washington Supreme Court, Morin v. Burris, which set aside a default judgment where an insurance adjusted attempted to settle a case without being informed a lawsuit was pending. Dollar Tree argued that case supported its claim it had informally appeared before the court by repeatedly contacting Hanes’ lawyer about a settlement.
Unfortunately for it, Dollar Tree on appeal switched to arguing that Morin meant it could escape the judgment because Hanes’ lawyer had concealed the lawsuit. Since it didn’t make that specific argument before the trial judge, it waived it on appeal, the appeals court ruled. And because Dollar Tree didn’t move to vacate the judgment until more than a year after it was handed down, the company was prevented under state law from arguing its non-appearance was due to mistake.