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Cooper v. Brownell

Supreme Court of South Dakota

February 6, 2019

ROBERT COOPER, Plaintiff and Appellant,
v.
ANDREW CORY BROWNELL and JASON UTECHT, Defendants and Appellees.

          CONSIDERED ON BRIEFS ON NOVEMBER 12, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA THE HONORABLE MICHELLE K. COMER Judge

          DAVE L. CLAGGETT of Claggett & Dill, Prof. LLC Spearfish, South Dakota Attorneys for plaintiff and appellant.

          HEATHER LAMMERS BOGARD of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, LLP Rapid City, South Dakota Attorneys for defendant and appellee Andrew Cory Brownell.

          JEFFERY D. COLLINS of Lynn, Jackson, Shultz, & Lebrun, P.C. Rapid City, South Dakota Attorneys for defendant and appellee Jason Utecht.

          PER CURIAM

         [¶1.] In this personal injury action following a car accident, plaintiff Robert Cooper obtained default judgments against defendants Jason Utecht and Andrew Brownell. Thereafter, Defendants filed a motion to set aside the default judgments, which the circuit court granted. Defendants later moved for summary judgment, arguing that Cooper could not prove causation absent an expert opinion showing his injuries were caused by the collision. The circuit court granted Defendants' motion and dismissed Cooper's suit. Cooper appeals. We affirm.

         Facts and Procedural History

         [¶2.] While Cooper was stopped at an intersection in Deadwood in 2009, a vehicle driven by Utecht collided with a vehicle driven by Brownell. The collision caused Brownell's vehicle to strike the front bumper of Cooper's vehicle. Cooper claimed the impact caused him to hit his head between the driver's door and passenger's door with such force it rendered him unconscious. Cooper was transported by ambulance to the Lead-Deadwood Hospital, where he was treated and released after approximately four hours. The record does not disclose the treatment Cooper received at the hospital.

         [¶3.] In September 2012, Cooper brought suit against Utecht and Brownell, alleging he "sustained personal injuries as a result of" the accident. Cooper sought to recover for medical bills and other expenses, as well as damages for past and future pain and suffering he claimed arose from the accident. Cooper served Brownell with a summons and complaint on September 28, 2012. Utecht was served on October 26, 2012. Neither Brownell nor Utecht filed an answer.

         [¶4.] In August 2014, Cooper obtained new counsel and moved for a default judgment against Brownell and Utecht. He did not serve notice of the motion on either defendant. On September 25, the circuit court entered findings of fact, conclusions of law, and a default judgment in the amount of $403, 848.68 against both Defendants. The award included Cooper's filing fees, service fees, costs, medical and counseling expenses, future medical bills and expenses, and future counseling expenses. The amount also included damages for permanent injuries, past and future pain and suffering, and prejudgment interest.

         [¶5.] After receiving notice of the entry of the default judgment, Brownell and Utecht filed separate motions to set the judgment aside. Brownell claimed Cooper's previous attorney had informed him that he need not worry about filing an answer because Cooper's suit was more directed at Utecht as the negligent driver. Utecht claimed his attorney had obtained an open-ended extension from Cooper's previous attorney to file an answer. Cooper stipulated to setting aside the default judgment against Utecht, subject to Cooper's right to contest the issue in the future or on appeal. However, he resisted Brownell's motion. After the hearing, the court entered an order setting aside the default judgment against Brownell. The court also entered an order setting aside the default judgment against Utecht pursuant to the parties' stipulation.

         [¶6.] Utecht filed an answer denying liability and asserting multiple affirmative defenses. Brownell did not file an answer but engaged in discovery and began actively defending the case. A trial date was set for March 2018. In February 2018, Brownell filed a motion for summary judgment, which Utecht joined. Defendants noted Cooper had not disclosed an expert witness by the disclosure deadline. According to Defendants, Cooper's failure to identify an expert and disclose expert opinions was fatal to his claim because an expert was necessary to establish the causal relationship between this accident and Cooper's injuries.

         [¶7.] In response, Cooper relied on his personal deposition testimony and his medical records to support causation for his claimed injuries. He argued expert testimony was unnecessary because his treating physicians would testify to the facts concerning his treatment and the jury would determine the extent to which the accident caused his injuries. Cooper did not present any testimony, ...


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