A simple but costly mistake in defense practice is the mishandling of the Complaint. After a defendant is served with the Complaint in state court, he has 30 days in which to file an Answer. In federal court, he has 20 days to file an Answer. Otherwise, the plaintiff can move for a default judgment. Oftentimes, insured parties will deliver the Complaint to the insurance carrier or agent, as the insurance company is in most cases charged with providing a legal defense to the claim. That’s what happened in Childers v. Tippah County, a case recently upheld by the Mississippi Court of Appeals. The County attorney delivered the Complaint to the local insurance agent, who failed to take further action on the Complaint. The Plaintiff moved for default judgment in Circuit Court. Eventually, Childers obtained a default judgment against Tippah County for $250,000. Tippah County appealed.

In examining whether the County’s failure to file an Answer was a case of excusable neglect, the Court of Appeals said the conduct that will be examined is that of the County, not the insurance agent, therefore the failure of the insurance agent to deliver the Complaint to the carrier was not excusable neglect. In upholding the default judgment, the Court of Appeals ruled that it was the responsibility of the County to see that an Answer was filed. The Mississippi Supreme Court refused to hear an appeal from the judgment rendered by the Court of Appeals.

The lesson for all from this case is to follow up with your insurance provider continually until an Answer is filed, because if the insurance provider does not file an Answer you are on the hook.