
    CIRCUIT COURT OF FAIRFAX COUNTY
    Thomas Snyder, Adm’r of the estate of John W. Snyder, deceased v. Steven Andrew Masschelin et al.
    May 4, 1988
    Case No. (Law) 80788
   By JUDGE THOMAS J. MIDDLETON

This matter comes before the Court for entry of a default judgment against co-defendant, Steven Andrew Masschelin. The Order is rejected.

Plaintiff’s decedent was a passenger in an automobile driven by Sharon Smith. Smith’s father, William M. Smith, had the vehicle insured under a motor vehicle liability policy issued by the Traveler’s Indemnity of America insurance Company (The Travelers). This policy contained an uninsured motorist clause. Plaintiff’s decedent was injured as a result of a collision between the car driven by Smith and one driven by the co-defendant Steven Andrew Masschelin, an uninsured motorist.

Plaintiff’s decedent filed suit against Masschelin and the Traveler’s for the resulting injuries. Both parties were properly served process; however, Masschelin failed to answer within the statutory twenty-one day limitation. The Travelers filed a timely answer and grounds of defense. Plaintiff’s decedent now seeks entry of a default judgment against Masschelin for failing to file a timely answer.

The Virginia Uninsured Motorist Statute provides that "[t]he insurer shall then have the right to file pleadings and take other action allowable by law in the name of the owner or operator of the uninsured . . . motor vehicle or in its own name . . . . " Va. Code Section 38.2-2206(f).

Since the insurance company has filed an answer to the Plaintiff’s Motion for Judgment, pursuant to the Uninsured Motorist Statute, there can be no default against the defendant, Masschelin. A default issued against the co-defendant would adversely affect the statutory right of the insurance company to properly defend this action.  