Lovisha Love-Diggs

v.

Ram TIRATH, Kamal Cab Company, and Pennsylvania Financial Responsibility

Assigned Claims Plan

v.

PRIME INSURANCE SYNDICATE, INC. and Inex Insurance Exchange, Appellants.

No. 698 EDA 2005.

 

Filed Nov. 8, 2006.

 

OPINION BY PANELLA, J.:

 

1 Appellants, Prime Insurance Syndicate, Inc. and INEX Insurance Exchange, appeal from the judgment entered on May 30, 2006, [] in favor of Appellees, Lovisha Love-Diggs, Ram Tirath, and the Pennsylvania Financial Responsibility Assigned Claims Plan (the “Plan”), by the Honorable James Murray Lynn, Court of Common Pleas of Philadelphia County. After careful review, we affirm.

 

2 Due to our disposition, only a brief factual background is necessary for our discussion. On April 27, 2002, Love-Diggs was a passenger in a taxi cab owned by Kamal Cab Company  [] and driven by Tirath. The cab was involved in an accident with a truck. Immediately after the accident, the truck fled the scene. Love-Diggs sustained injuries as a result of the accident.

 

3 Thereafter, on April 16, 2003, Love-Diggs filed a complaint against Tirath, Kamal Cab Company, and the Plan. On June 16, 2003, the Plan filed a complaint joining as additional defendants Prime Insurance and INEX. The Plan’s complaint alleged that Kamal Cab Company was insured by an automobile liability insurance policy issued by Prime Insurance and INEX which covered the accident at issue as described in Love-Diggs’ complaint.

 

4 The matter proceeded to a non-jury trial on June 28, 2004, at which time the complete automobile insurance liability policy issued by Prime Insurance to Kamal was introduced into evidence. The trial court subsequently found in favor of Love-Diggs, awarding her $20,000.00 to be paid directly by Prime Insurance and INEX. On July 8, 2004, Prime Insurance and INEX filed a post-trial motion, which the trial court denied by an order entered February 16, 2005. This timely appeal followed.

 

5 On appeal, Prime Insurance and INEX raise only one issue for our review:

Whether the trial court erred in determining that defendants Prime Insurance Syndicate, Inc. and INEX Insurance Exchange were obligated to provide Kamal Cab Company with insurance coverage when the vehicle involved in an accident was not listed as a scheduled vehicle on the policy of insurance issued by Prime Insurance Syndicate, Inc. and INEX Insurance Exchange and the policy issued to Kamal specifically provides that coverage is afforded thereby only for listed, scheduled.vehicles [sic].”

Appellants’ Brief, at 4.

 

6 The issue raised on appeal centers exclusively on the interpretation of an automobile liability insurance policy. As mentioned, the complete policy was entered into evidence at trial. See N.T., 6/28/04, at 6-7. In the certified record on appeal, however, the policy is missing. “It is an appellant’s duty to insure that the certified record contains all documents necessary for appellate review.” In re O’Brien, 898 A.2d 1075, 1082 (Pa.Super.2006) (citation omitted). If the necessary documentation is not in the certified record, this Court will find the issue raised on appeal waived. See, e.g., Kaplan v. O’Kane, 835 A.2d 735, 742 (Pa.Super.2003). Accordingly, we are constrained to find the issue raised on appeal waived. See id.

 

7 We further note that we have reviewed the reproduced record submitted by Prime Insurance and INEX. Our review discloses that Prime Insurance and INEX have only included selected portions of the automobile liability insurance policy in the reproduced record. Conspicuously absent from the reproduced record prepared by Prime Insurance and INEX is the “Form F Uniform Motor Carrier Bodily Injury and Property Damage Liability Insurance Endorsement” referenced in the trial court’s opinion. See Trial Court Opinion, 7/26/06, at 4-5. The Form “F” endorsement is included in the Plan’s supplemental reproduced record. See Supplemental Reproduced Record, at 10b.

 

8 The Pennsylvania Public Utility Commission has explained the importance of the Form E  [] and F endorsements as follows:

The Form “F” endorsement constitutes an amendment of the underlying insurance policy to provide that coverage shall be in accordance with the coverage required by “any State motor carrier law or regulations promulgated by any State commission with jurisdiction” over the motor carrier. Accordingly, by filing the Form “E” certification, coupled with the Form “F” endorsement, the insurer certifies to the Commission that it is providing coverage in accordance with the law, notwithstanding any potentially contrary terms contained in an individual policy of insurance.

Our statute and regulations clearly require coverage on each and every vehicle used by a motor carrier in its authorized service. 66 Pa.C.S. §  512, 52 Pa.Code § §  32.11, 32.12. As noted earlier, the Public Utility Code requires coverage for “each and every vehicle”. 66 Pa.C.S. §  512. In addition, Commission regulations provide that an insurer must file with the Commission a Form “E” to cover bodily injury or property damage “resulting from the operation, maintenance or use of a motor vehicle in the insured authorized service”. 52 Pa.Code § §  32.11, 32.12. Vehicle lists utilized by an insurer and insured as part of the private insurance contract cannot be used to defeat coverage for all vehicles used by a carrier in its service, as required by law.

Insurance Coverage Requirements for Motor Carriers, Declaratory Order, 2005 WL 1876133, at 5 (Pa. P.U.C. filed May 23, 2005).

 

9 In Insurance Coverage Requirements for Motor Carriers, the Pennsylvania Public Utility Commission reaffirmed its declaration in Petition of Thomas Redfield, Docket No. P-00950951 (Order entered October 4, 1995), wherein the Commission “found that coverage was available to claimants, regardless of whether a particular carrier vehicle involved in an accident was listed on the insurance policy.” Insurance Coverage Requirements for Motor Carriers, 2005 WL 1876133, at 1. See also id., at 6 (holding that “exclusionary clauses contained in an insurance policy will not defeat coverage mandated by law.”).

 

10 In its decision, the trial court relied on the Pennsylvania Public Utility Commission’s declaratory order in Insurance Coverage Requirements for Motor Carriers to deny Prime Insurance’s and INEX’s contention that the absence of the specific taxi cab  [] involved in the accident from the automobile liability insurance policy precludes coverage where the policy provides that coverage is available to only listed vehicles. See Trial Court Opinion, 7/26/06, at 7-8. We agree with the trial court that the Pennsylvania Public Utility Commission’s declaratory order in Insurance Coverage Requirements for Motor Carriers renders Prime Insurance’s and INEX’s argument meritless.

 

11 Judgment affirmed. Jurisdiction relinquished.

 

Prime Insurance and INEX purport to appeal from the order denying their post-trial motion. See Notice of Appeal, 3/16/05. As we recently explained in Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523 (Pa.Super.2006), “[o]rders denying post-trial motions, however, are not appealable. Rather, it is the subsequent judgment that is the appealable order when a trial has occurred.” Id., at 525 n. 1 (citations and internal quotation marks omitted). Judgment was not entered until May 30, 2006, a date subsequent to the filing of Prime Insurance and INEX’s notice of appeal. As in Harvey, “[d]espite [Prime Insurance and INEX’s] error in prematurely filing their notice of appeal, this Court will address the appeal because judgment has been entered on the verdict.” Id. We have corrected the caption accordingly.

 

Kamal Cab Company did not file an answer to the complaint nor did it appear for trial.

 

The Form E endorsement is entitled, “Uniform Motor Carrier Bodily Injury and Property Damage Liability Certificate of Insurance .”

 

It is undisputed that the cab was owned by Kamal Cab Company.

United States District Court,

N.D. Illinois,

Eastern Division.

ST. PAUL FIRE & MARINE INSURANCE CO., a/s/o Hub Group Inc., Plaintiff,

v.

KIPER & SON TRUCKING, L.L.C., an Illinois corporation, Defendant.

 

Nov. 2, 2006.

 

MEMORANDUM OPINION

 

CHARLES P. KOCORAS, District Judge.

 

This matter comes before this Court on Defendant Kiper & Son Trucking, L.L.C. (“Kiper”)’s motion to vacate default judgment entered on August 16, 2006. For the following reasons, Kiper’s motion is granted.

 

BACKGROUND

Plaintiff St. Paul Fire & Marine Insurance Co. (“St.Paul”), as subrogee of Hub Group, Inc. (“Hub”), a transportation intermediary, filed suit in this Court on May 11, 2006. St. Paul alleged that Kiper, a motor carrier, was liable under the Carmack Amendment, 49 U.S.C. §  14706, for losses suffered as a result of Kiper’s negligence in protecting and securing the freight it transported for Hub. According to St. Paul, Hub contracted with Kiper to transport 34 televisions from USF Logistics in Illinois to P.C. Richard & Son, Inc. in New York. Kiper allegedly picked up 34 televisions from USF Logistics, but delivered only 28. Hub paid $13,966.80 to USF Logistics for the missing televisions, of which St. Paul paid $8,966.80 pursuant to Hub’s policy of insurance for lost or damaged property. Kiper never compensated Hub for the value of the lost goods. Under 49 U.S.C. §  14706(a)(1), St. Paul sought recovery from Kiper of $13,966.80 plus costs.

 

On the same day it filed its complaint in this Court, St. Paul issued a Waiver of Service of Summons to Kiper’s registered agent, Jack A. Traina (“Traina”), in Wood-Ridge, New Jersey. Traina executed the waiver of service on May 16, 2006. Although the waiver of service specified that Kiper’s answer was due within sixty days, Kiper never filed an answer. Kiper did not appear at the status hearings held by this Court on June 27, 2006, and July 13, 2006, nor did Kiper appear on August 2, 2006, the date on which St. Paul presented its Motion for Default Judgment. This Court set August 16, 2006, as the date for entry of St. Paul’s Motion for Default Judgment. St. Paul mailed a copy of its Motion for Default Judgment to Traina when it filed the motion in this Court on August 2, 2006.

 

Kiper claims that it was not formally notified of the lawsuit by Triana until August 11, 2006. Further, Monica Swigut, Kiper’s manager, attested that she was unable to retain counsel to appear on August 16, 2006. Instead, Dorothy Wtyklo, an employee of Kiper, appeared in Court on August 16, 2006, and represented that Kiper needed additional time to find an attorney. This Court did not permit Wtyklo to appear personally on Kiper’s behalf and entered default judgment against Kiper. On August 22, 2006, Kiper retained counsel, who filed a motion for extension of time to vacate the default judgment. This Court denied Kiper’s motion on Sept. 26, 2006, and directed Kiper to supplement its motion with good cause sufficient to justify relief from judgment.

 

LEGAL STANDARD

Motions to vacate default judgments are governed by Fed.R.Civ.P. 55(c) and  60(b). Pretzel & Stouffer, Chartered v. Imperial Adjusters, Inc., 28 F.3d 42, 44-5 (7th Cir.1994). The standards for evaluating a motion to vacate under Rules 55(c) and 60(b) are the same for all practical purposes, Davis v. Hutchins, 321 F.3d 641, 646 (7th Cir.2003), although the standards are applied more stringently when a party wishes to vacate a judgment rather than a mere order. Jones v. Phipps, 39 F.3d 158, 162 (7th Cir.1994). Rule 60(b)(1) permits relief for judgment on grounds of mistake, inadvertence, surprise, or excusable neglect. Easley v. Kirmsee, 382 F.3d 693, 697 (7th Cir.2004). Kiper has not specified the grounds under which it is requesting relief, but we believe its motion is most logically construed as requesting that we vacate the default judgment for excusable neglect pursuant to Rule 60(b)(1). See Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir.2006).

 

DISCUSSION

Relief from a judgment under Rule 60(b) is “an extraordinary remedy and is granted only in exceptional circumstances.” C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1204 -05 (7th Cir.1984). In order to vacate the default judgment against it, Kiper must show: (1) good cause for the default; (2) quick action to correct the default; and (3) the existence of a meritorious defense to the original action. U.S. v. Indoor Cultivation Equipment from High Tech Indoor Garden Supply, 55 F.3d 1311, 1318 (7th Cir.1995). Good cause, under Rule 60(b)(1), can include “excusable neglect”, which the Supreme Court has defined as encompassing “both simple, faultless omissions to act and, more commonly, omissions caused by carelessness.” Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 388 (1993). An inquiry into whether conduct constitutes excusable neglect is “at bottom an equitable one” in which the Court may take into account all of the circumstances, including “the danger of prejudice to the [defendant], the length of the delay and its potential impact on judicial proceedings, the reasons for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir.2006) (quoting Pioneer ). Accordingly, the degree to which a party or his agent’s carelessness can be termed excusable neglect is a matter largely within the discretion of this Court. Robb v. Norfolk & Western Ry. Co., 122 F.3d 354, 359 (7th Cir.1997).

 

Kiper proffers three reasons for its default. First, it claims that it was not aware of this lawsuit until Triana, its registered agent, sent Kiper a letter on August 11, 2006, notifying Kiper of the impending entry of default judgment. Second, Kiper claims that its manager, Ms. Swigut, speaks imperfect English and is unsophisticated regarding the American legal system. Third, Kiper claims that the three business days between August 11 and August 16 were not sufficient to permit it to retain counsel, and so it sent an employee to the Court to plead for additional time. Only Kiper’s last reason, its unsuccessful attempt to secure counsel and make an appearance in this court, may qualify as “excusable neglect” under these circumstances.

 

Kiper is careful to plead that it was not formally aware of the pending litigation-rather than not aware at all. Kiper’s lack of awareness is no excuse. First, evidence proffered by St. Paul indicates that Kiper may have been aware of this litigation. Counsel for St. Paul was contacted by Kiper via e-mail in early July 2006, concerning Kiper’s troubles persuading its insurer to pay the claims underlying this matter and a similar matter also pending in this District. Counsel for St. Paul advised Kiper that both cases were proceeding in court regardless of whether or not Kiper had insurance coverage and advised Kiper to have counsel appear in both cases. Kiper’s e-mail indicates that someone at Kiper was aware of the pending claims but did nothing, either out of ignorance or willful disregard of its legal interests. Second, even if we disregard the email to St. Paul, Kiper cannot escape the default judgment by pointing to Triana’s failure to advise Kiper of his acceptance of service of the complaint. To excuse Kiper on the basis of its agent’s actions would be contrary to the general rule is that a client is bound by his chosen agent’s deeds. US v. 8136 S. Dobson St., Chicago, Illinois, 125 F.3d 1076, 1084 (7th Cir.1997). Most importantly, were we to consider Triana’s actions excusable neglect, we would create impermissible uncertainty concerning service of process pursuant to Fed.R.Civ.P. 4(h), which provides that service upon a registered agent constitutes service upon that party.

 

Kiper’s second reason for its default, the limited English skills of its manager and her lack of legal sophistication also cannot be considered excusable neglect in these circumstances. Kiper is registered to do business in Illinois and is incorporated in the state of New Jersey. It possesses a registered agent, and its business is interstate trucking–a highly regulated industry. Kiper cannot claim now that it is unsophisticated concerning the American legal system. To grant a business the legal status and privileges inherent in corporate status and permission to conduct business on interstate highways, but yet to excuse its managers and owners from compliance with the very system of laws that permit it to operate, is inconsistent and unfair.

 

Kiper’s third reason for its default, its inability to obtain counsel in the three days between the time it was notified of the pending motion for default judgment and the scheduled hearing, and the appearance of Ms. Wtyklo in lieu of an attorney, is the only reason which can be termed excusable neglect. Kiper’s attempt, though legally flawed, to at least appear at the hearing for the entry of default, at least evinces its efforts to mount a defense to this action. Combined with retention of counsel within a week of the entry of judgment and a prompt filing of a motion to vacate, this Court is persuaded that Kiper in good faith attempted to secure counsel and could have, if counsel had appeared on August 16, avoided default. Kiper’s actions are inconsistent with the “wilful abdication” of its legal responsibility to protect its own interests that would justify denying its motion to vacate. See Zuelze Tool & Engineering Co. Inc. v. Anderson Die Castings, Inc., 925 F.3d 226 (7th Cir.1991). Furthermore, in considering the equities of the entire situation, we find that given the short amount of time this case has been pending, the prejudice to the plaintiff is not so great, nor the delay so long, as to make vacating the default judgment an injustice.

 

Finally, Kiper has satisfied the remaining two prongs of the test for awarding judgment under Rule 60(b). Kiper has demonstrated, as discussed above, quick action to correct the default. As to the existence of a meritorious defense, Kiper claims that its driver and several unnamed witnesses can testify as to the state of the freight upon loading and unloading. There appears to be a clear dispute concerning the status of the trailer at the start and end of its journey, and one that may constitute a meritorious defense for Kiper upon development of the facts.

 

CONCLUSION

Accordingly, Kiper’s motion to vacate is granted. Kiper has thirty days to file an appearance of counsel and answer or otherwise plead.