01 Jun Virginia: Car Accidents – a Lawyer’s Default
On April 16, 2015, the Supreme Court of Virginia opined in Sauder v. Ferguson, No. 140805. It affirmed denial of plaintiff’s motion to set aside default judgment for $300,000.00 in a two-auto collision lawsuit. Id. at 1, 18.
Sauder found that under Va. Code §8.01-428(A) the circuit court had discretion to grant or deny to set aside default judgment. Id. at 9-13. Sauder also found that the circuit court did not abuse its discretion in refusing plaintiff’s motion to set aside the default judgment because plaintiff was “the architect of her own misfortune” – specifically, plaintiff did not attempt to re-serve defendant with complaint and summons despite questions about the validity of defendant’s address upon initial service; subsequently used the “proper” address of defendant for service of default notice; asserted service was proper when procuring a default judgment; and obtained a judgment for $300,000.00. Id. at 13-18. Justice Powell and Justice Mims concurred in affirming, but on the grounds that on the facts plaintiff “cannot now deny the validity of the judgment and is judicially estopped from seeking to set it aside”. Id. at 18-19.