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Perez v. Dion

Superior Court of Rhode Island

July 11, 2014

BARBARA PEREZ and BARBARA PEREZ as parent and next friend of RAMYA Y. PEREZ
v.
GAIL DION and FITZPATRICK'S PUB, INC. and 2012 SPORTS BAR & LOUNGE, INC. and JOHN DOE I and JOHN DOE II

Superior Court Providence County

For Plaintiff: Joseph M. Rameaka, Esq. Carol L. Ricker, Esq.

For Defendant: Gregory P. Piccirilli, Esq.

DECISION

LANPHEAR, J.

Before this Court is a dispute between Barbara Perez and Barbara Perez on behalf of her minor child, Ramya Y. Perez (collectively, Plaintiffs), 2012 Sports Bar & Lounge, Inc. (Defendant), Gail Dion (Co-Defendant), and Fitzpatrick's Pub, Inc. (Co-Defendant), regarding Defendant and Co-Defendants' liability for injuries incurred by Ms. Perez as a result of an automobile accident. In particular, Plaintiffs' Complaint alleges that a drunk driver, Ms. Dion, consumed drinks at Defendant and Co-Defendant's places of business and consequently they are jointly liable to Plaintiffs for the resultant injuries. The instant matter is Defendant's Motion to Vacate Entry of Default entered against it. Jurisdiction is pursuant to Super. R. Civ. P. 55(c).

I Facts and Travel

Ms. Perez alleges that on June 29, 2012, Ms. Dion consumed alcoholic beverages at two establishments in Cranston, Rhode Island; namely, Fitzpatrick's Pub and 2012 Sports Bar. Ms. Perez further alleges that when Ms. Dion left these establishments, she drove her car while she was under the influence of alcohol. Ms. Dion traveled in the northbound lanes of Route 10 in Cranston, although her vehicle was driving southbound (opposite to the flow of traffic). Ms. Perez was a passenger in a vehicle driving southbound in the southbound lanes. The two vehicles struck head-on.

Ms. Perez sustained serious and permanent injuries. She claims damages for lost wages, medical expenses and compensation for pain and suffering. She also claims that her daughter, Ramya Y. Perez, lost the society and companionship of her mother during this period.

Although service of process was effectuated upon the agent for service of process on November 5, 2012—see summons in file—2012 Sports Bar failed to answer or otherwise respond. Defendant was defaulted as a result of its inaction on January 16, 2013. The Plaintiffs then moved for judgment against Defendant and scheduled a hearing to prove their damages through testimony and other evidence, an oral proof of claim. At the hearing on July 11, 2013, the Court awarded damages of $700, 000 to Ms. Perez and $200, 000 to Ramya Y. Perez. See Order dated August 28, 2013.

On August 8, 2013, 2012 Sports Bar moved to vacate the default. It claimed it had no knowledge of the suit, or the claim, and never received process. The Court conducted hearings on the motion to vacate in the fall of 2013. This matter is now before the Court for decision.

II Findings of Fact

On October 9, 2012, counsel for Plaintiffs issued a letter to 2012 Sports Bar threatening litigation and urging the Defendant to contact counsel. There were three attempts to deliver the letter by certified mail, but the letter was never claimed. A copy of the letter was mailed by regular mail, but the envelope to 2012 Sports Bar contained a letter addressed to Fitzpatrick's Pub, a Co-Defendant. The letter was received by Richard J. DeAndrade, Vice President and Treasurer of 2012 Sports Bar. Despite receiving the letter, Defendant took no action, and suit was initiated.

Defendant is a small business which operates only in the evening. In establishing the business, the corporation consulted with Norman Lecours. Mr. Lecours has done bookkeeping and tax preparation work for various clients for over fifty years and testified at length at the motion hearing. Mr. Lecours occasionally incorporated businesses for clients, listing himself as the agent for service of process, as he did for Defendant. Mr. Lecours also testified that when he is served with process for any of the corporations, he accepts service, photocopies the documents, provides the documents to the client, and retains a copy.

When Mr. Lecours initially completed the tax filings for Defendant, Richard J. DeAndrade, the Treasurer of 2012 Sports Bar, would visit Mr. Lecours' office monthly to exchange financial reports. However, soon after the corporation formed, Defendant elected to proceed without Mr. Lecours, completing its own tax returns starting in February 2013. The agent for service was never changed. On October 29, 2012, Mr. Lecours gave the service ...


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