In Moore v. Welch, [Ms. 2070709] (Ala. Civ. App. Feb. 6, 2009), an employee sued his co-employees for willfulness resulting in an on the job injury after he was seriously burned when two fire extinguishers malfunctioned and the flames could not be put out. The Court of Civil Appeals affirmed the trial court’s setting aside of a default judgment which was entered. The opinion presents a good discussion of the requirements of Rule 55(c) and the Kirtland factors the courts are to consider in deciding Rule 55(c) motions to set aside defaults.
One interesting aspect of the opinion is the court’s finding that a "gentleman’s agreement" between attorneys that no appearance was necessary provided a sufficient basis for the trial court to conclude that the default judgment was not as a result of the defendant’s own culpable conduct.
The circuit court ultimately affirmed summary judgment granted to the defendant co-employees after the default was set aside, finding that a fire extinguisher was not a "safety device on a machine" and was not covered by Ala. Code sec 25-5-11(c)(2).