It’s bound to happen eventually. A lawsuit gets filed. The insured is served with a summons and complaint. But rather than notifying the carrier, the insured defendant does NOTHING. Under Nevada law, if a defendant does not file an appearance within 20 days after service, the non-answering defendant is in default. See N.R.C.P. 12(a)(1). Fortunately all is not lost.
Defaults are governed by N.R.C.P. 55 which reads:
RULE 55. DEFAULT
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.
Between the time when 20 days have passed until the time when the clerk takes action to enter default, the exact status of the case is vague. Keep in mind that there is no valid default until the clerk actually signs and files the form entitled “Default”. Opaco Lumber & Realty Co. v. Phipps, 75 Nev. 312, 340 P.2d 95 (1959). A party in technical default has a couple of choices. That party could simply appear and file a tardy Answer. But the tardy Answer would be subject to Plaintiff’s Motion to Strike because of the technical violation of the rule. Perhaps the better solution would be to appear and file a Motion to Enlarge Time to Plead and to Set Aside Technical Default on an Order Shortening Time and attach thereto a proposed Answer. Either way you go, if you do it in a timely fashion, it is unlikely that the court would take the drastic step of entering a formal Default since it is in effect an “admission by the defending party of all material claims made in the complaint . . . resolv[ing] the issues of liability and causation and leav[ing]open only the extent of damages.” Lamastro v. Am Family Ins. Group, 124 Nev. Adv. Op. 89, 194 P.3d 339, 345 (2008). This technical default is generally the simplest type of default to cure.
