A Case of Absolute Nullity

Claimant was injured in a motor vehicle accident while employed by A-1 St. Bernard Taxi and Delivery.  Claimant filed a disputed claim for compensation seeking medical and indemnity benefits, as well as penalties and fees.  OWC attempted to serve Employer, A-1 St. Bernard Taxi, with the disputed claim, but Claimant had provided the OWC with the incorrect address.  Claimant filed an amended disputed claim and gave the OWC a new address for A-1.  OWC was still unable to serve Employer at the address provided.  Claimant then filed a second amended disputed claim with yet another address for service. Claimant also filed a motion to appoint the Secretary of State as the agent for service of process.  The court granted the Claimant’s motion and appointed the Secretary of State as the agent for service of process.  The Secretary of State then transmitted service to Employer at the address provided in the second amended disputed claim for compensation.

A-1 never made an appearance in the claim and the claim proceeded to trial without either counsel or a representative from A-1.  After taking Claimant’s testimony and evidence, the judge ruled in Claimant’s favor, awarding her benefits, as well as penalties and attorney fees.  A-1’s counsel filed a Motion to Enroll right after the trial was complete and also moved for a new trial.  The Motion to Enroll was granted, but the Motion for New Trial was denied and a formal judgment was issued against A-1.

A-1 appealed arguing that the judgment should not have been rendered due to improper service of process and because no valid default had been taken against A-1 prior to the trial.   A-1 also raised other issues on appeal.  The appellate court agreed with A-1 that service was not proper and also that the court was incorrect in proceeding to judgment against defendant without taking a default first.  The appellate court determined that the other issues raised on appeal did not need to be addressed because the judgment issued by the trial court was an absolute nullity.

In coming to its conclusion, the appellate court noted that Claimant had provided the court with two incorrect addresses before finally giving the court the correct address for A-1.  The court noted that the OWC had made two unsuccessful attempts at service at the Employer’s wrong address.  Following those attempts, a special process server was appointed and he only made one attempt to serve Employer at the correct address.  The appellate court found that this was not an adequate showing of a diligent effort to serve A-1.  The court further determined that the judgment rendered against A-1 was an absolute nullity because it was rendered against A-1 before any valid default was taken against the Employer.  The case was returned to the OWCA for further proceedings.

Gordon v. A-1 St. Bernard Taxi & Delivery