Volcano Enterprises, Inc. v. RushAnnotate this Case
Volcano Enterprises, Inc., d/b/a Club Volcano, appealed the denial of its Rule 60(b)(4), Ala. R. Civ. P., motion to set aside the judgment entered against it in a wrongful-death action filed by Peggy Bender Rush, as administratrix of the estate of her husband Derric Rush and as his widow, and by Dashton Rush, the Rushes' minor son, by an through his mother and next friend, Peggy Bender Rush. The complaint alleged that police officer James Kendrick met a friend of his at Club Volcano after Kendrick's shift had ended. The complaint alleged Kendrick consumed a substantial amount of alcohol while sitting in a parked vehicle in the parking lot of the club, after which he entered the club with his friend. Kendrick allegedly "remained for several hours" in the club, that while there he "became visibly intoxicated," and that, "despite his "visibly intoxicated condition, [he] was served additional alcohol and allowed to leave in an intoxicated condition." In his intoxicated condition, Kendrick allegedly drove his vehicle in a manner that caused the death of Derric Rush. In order to serve Volcano and its owner with her complaint, Rush employed a process server, who after three attempts, was unable to serve Volcano a copy of the complaint. There was a question at trial over whether Volcano's owner was actively attempting to avoid service. Rush resorted to service by publication. Volcano alleged service by publication was insufficient in this case. The Supreme Court concluded Rush had the burden of demonstrating that Volcano's owner avoided service, which the Court concluded she did not do. Therefore, the trial court erred in failing to grant Volcano's motion to set aside the default judgment.