Trisura Insurance Company v. Bighorn Construction and Reclamation, LLC

Background

Trisura Insurance Company sued Bighorn Construction and Reclamation, LLC; Bighorn Investments and Properties, LLC; Bighorn Sand & Gravel LLC; Bridgelink Commodities LLC; Bridgelink Engineering LLC; Bridgelink Investments, LLC; Bridgelink Renewable Energy Development LLC; Bridgelink Renewable Energy Investments LLC; Intermountain Electric Service, Inc.; Cole Wayne Johnson; Cord Henry Johnson; and Cassie Hamilton. Trisura’s complaint sought to enforce an indemnification agreement.

Trisura filed an amended complaint on January 10, 2024. It served the defendants other than Intermountain Electric Service, Inc. and Cole Johnson by January 25, 2024. The Clerk entered certificates of default against the timely served defendants on February 29, 2024, because they had not answered. Trisura served Intermountain Electric Service on February 28, 2024, but repeated attempts to serve Cole Johnson were unsuccessful.

On March 20, 2024, attorney Vikesh Navnit Patel moved to appear on behalf of all defendants, and the defendants filed an answer. The defendants moved the next day for an additional 14 days to answer the amended complaint. Trisura also moved for an additional 90 days to serve Cole Johnson. Trisura separately asked that any cancellation of the defaults be conditioned on payment of its reasonable attorneys’ fees and costs caused by the defaults.

Service of Process

The court found good cause to extend the service deadline for Cole Johnson. Trisura had attempted service at six different locations from January 12 through March 6, 2024, including at least two in-person attempts, and submitted affidavits documenting the unsuccessful efforts. The court granted Trisura’s motion to extend the time to serve Johnson. Because Intermountain Electric Service had since been properly served, the court addressed the extension request only as to Johnson.

Late Answer and Defaults

The court found that the defendants had shown excusable neglect, meaning a sufficient good-faith and reasonable explanation for missing the answer deadline. The defendants said their initially sought counsel could not handle the matter, and they then sought new counsel. The court found that the failure to answer was not willful, that the defendants had acted in good faith after retaining counsel, and that Trisura would not be unduly prejudiced by the extension.

The court also applied the standard for setting aside a certificate of default, which requires consideration of whether the default was willful, whether canceling it would prejudice the opposing party, and whether the defendant has a potentially meritorious defense. The court found that the defendants had offered an explanation for the delay, that Trisura had not shown prejudice such as lost evidence or fraud concerns, and that the defenses in the answer met the low threshold for showing a potentially meritorious defense. The court therefore granted the defendants’ motion to extend the time to answer and vacated the certificates of default against the timely served defendants. The answer was to be treated as timely.

Attorneys’ Fees and Costs

The court granted Trisura’s request for reasonable attorneys’ fees and costs incurred because of the defaults. The parties were directed to meet and confer within seven days of the order to try to agree on the amount. If they could not agree, Trisura could file a request for the fees and costs within 14 days of the order.

Disposition

The court granted Trisura’s motion to extend the time to serve Cole Johnson, granted the defendants’ motion to extend the time to answer, vacated the defaults entered against the timely served defendants, and granted Trisura’s request for reasonable attorneys’ fees and costs. The Clerk was directed to close the two motions as granted.