While I do not think Motions for Default Judgment in personal injury cases are overly popular, they do get filed. Some get granted. Some get set aside.
Most personal injury attorneys I work with know that oftentimes there is a delay between the time an insured gets served (if the named defendant has liability insurance) and the time it takes to get the information to the carrier and then an assignment to counsel. It is not uncommon for this process to take up to thirty days. Not always, but it does happen. When it does happen, many attorneys representing injured parties will contact the insurance company to get a status on assignment to counsel and inquire as to the ETA on getting an Answer filed. But, not always.
Even when a default judgment is granted in a personal injury case, the case is not over and there is no award of damages at that early stage. So, don’t get too excited if default judgment is granted. The reason is that damages sought in personal injury cases are unliquidated damages. Unliquidated damages are “[d]amages that cannot be determined by a fixed formula and must be established by a judge or jury.” Husk v. Thompson, No. M201601481COAR3CV, 2017 WL 3432686, at *4 (Tenn. Ct. App. Aug. 10, 2017).
Generally, the rule in Tennessee “is that the defendant, by suffering a default judgment to be entered against him, impliedly confesses all of the material allegations of fact contained in his complaint, except the amount of the plaintiff's unliquidated damages.” Patterson v. Rockwell Int'l, 665 S.W.2d 96, 101 (Tenn. 1984) (citing Adkisson v. Huffman, 469 S.W.2d 368, 377 (Tenn. 1971)). A defendant against whom a default judgment has been entered “may introduce evidence … on the question of damages." Burnette v. Sundeen, 152 S.W. 3d 1, 4 (Tenn. Ct. App. 2004).
What does all of this mean? Even if the material allegations in the Complaint in a personal injury case are admitted, there is more work to do. I suspect this is generally going to require expert medical proof, etc. And, while the material allegations in the Complaint may no longer be contested, the extent of damages may be and the defendant will have the ability to participate and defend the issue.
Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.
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