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Patrick Distassio v. Allstate Indemnity Company
Date: 01-12-2004
Case Number: AC 23594
Judge: Schaller
Court: Connecticut Court of Appeals
Plaintiff's Attorney: Alan Scott Pickel, for the appellee (plaintiff).
Defendant's Attorney: Jane G. Beddall, with whom, on the brief, was Terence
A. Zemitis, for the appellant (defendant).
Company, appeals from the judgment of the trial court
awarding damages to the plaintiff, Patrick Distassio.
The defendant specifically claims that the court improperly
(1) denied its motion to set aside a default for
failure to appear, (2) denied its right to a trial by jury
and (3) failed to reduce the plaintiff's damage award.
We agree with the defendant's first claim; because the
defendant's other claims are logically dependent on its
first claim, we do not address the second and third
claims.
The essential facts are not in dispute. In August, 1999,
the plaintiff was injured in a car accident. At the time
of the accident, the defendant was the plaintiff's insurer.
The plaintiff's insurance policy contained uninsuredunderinsured
motorists coverage. After the plaintiff
sought compensation from the driver of the other car,
the plaintiff brought an action against the defendant to
recover uninsured-underinsured benefits.
The plaintiff filed a complaint against the defendant
on November 26, 2001. The return date for the complaint
was December 18, 2001. The defendant did not file an
appearance, and on December 21, 2001, the plaintiff
filed a motion for default for failure to appear pursuant
to Practice Book § 17-20. The motion was granted by
the court clerk, relying on Practice Book § 17-20 (c).
The defendant responded to the action on January
9, 2002, and filed an appearance as well as a timely
claim for a jury trial.1 The court clerk failed to set aside
the default as provided in Practice Book § 17-20 (c).
The case proceeded, albeit with procedural irregularities,
and the defendant made a motion to set aside the
default, which was denied. The court held a hearing in
damages, awarded the plaintiff $36,889 and rendered
judgment. This appeal followed.
The defendant claims that the court improperly
denied its motion to set aside or to open the default
for failure to appear. The defendant argues that the
court should have granted the motion because the court
clerk improperly failed to set aside the default. Alternatively,
the defendant argues that the motion itself was
unnecessary because the rules of practice require the
court clerk to set aside a default when the defaulting
party files an appearance.Weagree with the defendant's
alternative argument.
On review, we normally look to see if the court abused
its discretion in denying motions such as the motion
in this case.2 See People's Bank v. Horesco, 205 Conn.
319, 323, 533 A.2d 850 (1987). We do not reach the
question of whether the court abused its discretion,
however, because the default should have been set
aside by the court clerk pursuant to Practice Book § 17-
20 (c).
Our rules of practice provide in relevant part that
‘‘[i]f the defaulted party files an appearance in the action
prior to the entry of judgment after default, the default
shall automatically be set aside by the clerk. . . .''
(Emphasis added.) Practice Book § 17-20 (c). In Morrison
v. Parker, 261 Conn. 545, 551, 804 A.2d 777 (2002),
our Supreme Court reviewed the language of General
Statutes § 52-275, which provides in relevant part that
‘‘[a]ll writs of error shall be allowed and signed by a
judge of the Superior Court or by the clerk of the court
. . . .'' The court held that provision to be mandatory
and stated that ‘‘[a]ccording to the clear and unambiguous
language of the statute, either a judge or the clerk
of the Superior Court is statutorily authorized to allow
and to sign a writ of error. The fact that the statute
grants such authority to the clerk of the court is compelling
evidence that the act is ministerial in nature.'' Morrison
v. Parker, supra, 551.
Similar to the statute in Morrison v. Parker, supra,
261 Conn. 545, Practice Book § 17-20 (c) uses the word
‘‘shall.'' That suggests that the provision is mandatory.
Grasso v. Zoning Board of Appeals, 69 Conn. App. 230,
239–40, 794 A.2d 1016 (2002). Further, the use of the
word ‘‘automatically'' indicates that the court clerk has
no discretion and must set aside the default after the
party has filed an appearance.3 The language of the
statute indicates that the defendant was not required to
file a motion to set aside the default; when the defendant
filed an appearance prior to the judgment, the default
was required to be set aside automatically.4
The failure of the clerk to set aside the default after
the appearance was filed was improper. That omission
directly led to and caused the other actions that the
defendant claims to be improper. Neither the default
nor the hearing in damages should have taken place.
Moreover, the omission affected the integrity of the
judicial system because it prevented the defendant from
having proper access to the court to defend the action.
Accordingly, the judgment of the trial court cannot
stand.
with direction to place the case on the jury list and for
further proceedings in accordance with law.
About This Case
What was the outcome of Patrick Distassio v. Allstate Indemnity Company?
The outcome was: The judgment is reversed and the case is remanded with direction to place the case on the jury list and for further proceedings in accordance with law.
Which court heard Patrick Distassio v. Allstate Indemnity Company?
This case was heard in Connecticut Court of Appeals, CT. The presiding judge was Schaller.
Who were the attorneys in Patrick Distassio v. Allstate Indemnity Company?
Plaintiff's attorney: Alan Scott Pickel, for the appellee (plaintiff).. Defendant's attorney: Jane G. Beddall, with whom, on the brief, was Terence A. Zemitis, for the appellant (defendant)..
When was Patrick Distassio v. Allstate Indemnity Company decided?
This case was decided on January 12, 2004.