The Term in Review: Civil Procedure
There were many cases in the spring 2015 term addressing procedural issues. Here is a sampling:
Expert Disclosures
Issues involving the completeness and timeliness of expert disclosures will always be with us. In State ex rel. Tallman v. Tucker, No. 14-0948, the Supreme Court crafted two new syllabus points that will guide judges, lawyers, and litigants who face these issues in the future. The Court listed four factors that must be considered. However, “fairness to the parties” should guide the trial courts in how these factors are applied in individual cases.
The takeaway from this case is: Don’t play hide-the-ball with expert disclosures. The Court was highly critical of the plaintiff, tracing the entire dispute to the plaintiff’s inadequate expert disclosure. If plaintiffs file disclosures that comply with Rule 26(b)(4), then defendants will have no opportunity to delay their own disclosures and blame plaintiffs for that delay.
Joinder
In State ex rel. Energy Corporation of America v. Marks, No. 14-1168, the plaintiff, who received injuries in a car wreck, sued the tortfeasor. The plaintiff also joined her insurer, State Auto, alleging that it failed to pay med pay benefits arising from the wreck and that it was otherwise guilty of bad faith. The issue was whether the case could proceed in Harrison County, where venue existed for the insurer, State Auto, but did not exist for the tortfeasor. The Court, by a 4 to 1 vote, concluded that the two claims did not involve common questions of law or fact and, therefore, could not be joined together. Consequently, the claim against the tortfeasor could not proceed in Harrison County.
This was a disappointing outcome. Unfortunately, it is quite common for med pay disputes to arise in the wake of a car wreck. Clearly, the claims involving the tortfeasor and the med pay insurer involve common issues--most notably, whether the medical bills are, in fact, related to the car wreck. Joinder of these claims makes sense and would promote efficiency for everyone involved. In the future, these claims will have to be prosecuted on a piecemeal basis--adding extra burden and costs to plaintiffs.
Defaults
In Lexon Insurance Company v. County Council of Berkeley County, No. 14-0215, the Supreme Court addressed issues involving a party’s default in the context of a construction bond. The Court’s opinion contained a new syllabus stating that the face amount of a construction bond is not a “sum certain” for purposes of Rule 55 and, therefore, a hearing is required before any default judgment can be entered.
The more interesting issue involved the way in which the default had occurred. Rather than filing any formal pleadings with the trial court, the attorneys had exchanged a series of e-mails agreeing to an extension of time to answer. The Court cited Rule 6, dealing specifically with extension of time, and chided the attorneys for failing to follow the procedures set forth therein. In the end, the Court found the e-mails to be “ambiguous” and set aside the default. Attorneys often make informal agreements to extend the answer time, but the takeaway from Lexon is that the wiser--and, certainly, the safer--route is to file a formal pleading in compliance with Rule 6.
