Opinion
Dudley O. Rae, John W. Lichty, Denver, for plaintiff-appellee.
James G. Johnston, Denver, for defendant-appellant.
SMITH, Judge.
The plaintiff-appellee, John A. Lopez, initiated the present suit by properly serving the defendant-appellant, Johnny Calvaresi, with a copy of a summons and complaint on December 17, 1971. In pertinent part, the complaint alleged that Calvaresi, an independent insurance agent, negligently had failed to notify the plaintiff of cancellation of an automobile insurance policy, and that, as a result of the defendant's negligence, the plaintiff had sustained the loss of his automobile and had been exposed to personal liability on a damage claim which otherwise would have been covered under the cancelled policy. Calvaresi did not file an answer to the complaint or otherwise appear and default was entered against him on January 12, 1972.
On August 16, 1972, the court, pursuant to the default and after taking evidence, entered judgment against Calvaresi in the sum of $4,233.57 plus costs. On October 20, 1972, Calvaresi filed with the court his motion to set aside the default judgment pursuant to C.R.C.P. 55(c) and 60(b) and, in support of the motion, filed an affidavit and an answer which contained, in essence, only general denials of the allegations in the complaint. He asserted as excusable neglect his belief that the co-defendant, Reserve Insurance Company, would respond and defend the action for all defendants. The court, after argument, denied the motion. Calvaresi's motion to alter and amend and for a new trial was also subsequently denied. The judgment appealed from was entered in accordance with the requirements of C.R.C.P. 54(b), and the co-defendant whose case is still pending is not involved in this appeal.
In order for the trial court to set aside a default judgment, the moving party must make two basic showings: first, that the neglect which brought about the default was excusable; and second, that he has a meritorious defense to the action. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820; Kenny v. Moody, Colo.App., 516 P.2d 455; Denver Casket Co., Inc. v. Denver Trailer Supply, Inc., Colo.App., 508 P.2d 138.
The determination of whether excusable neglect has been established is clearly within the discretion of the trial court. Mountain v. Stewart, 112 Colo. 302, 149 P.2d 176. We perceive no abuse of discretion here. The mere fact that a party who has been properly served believes that someone else has the legal responsibility to appear and defend an action against him does not excuse his noncompliance with the applicable rules of civil procedure requiring a timely response. Moskowitz v. Michaels Artists & Engineering Supplies, Inc., 29 Colo.App. 44, 477 P.2d 465.
A meritorious defense is one which sets forth specific and sfficiently detailed facts which, if proven, would have resulted in a judgment different from the one entered. Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267; Temple v. Miller, 30 Colo.App. 49, 488 P.2d 252. In the instant case, the defendant has failed to set forth specific facts which would constitute a meritorious defense and, instead, has merely disputed the truth of the allegations of the complaint, which in our view is nothing more than a general denial.
Therefore, because a meritorious defense, as a matter of law, was not asserted and because the court did not find excusable neglect, the motion to set aside the default judgment was properly denied.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.