¶1dissenting:
¶2Although I agree generally with the principles expressed by the majority relating to setting aside a default judgment under R.C.P. 60 (b), I disagree with the application of such principles to the facts of the instant case and respectfully dissent.
¶3*193The majority opinion relates certain stipulated facts which reveal that Stanley A. Smith, Claims Supervisor for Liberty Mutual Insurance Company, upon receipt of the summons and complaint involved in this case, placed them upon his desk with the apparent intention of later contacting counsel; that some unidentified clerk in his office misfiled the subject papers; and that the matter remained unattended. Consequently, no answer was timely filed by the defendant to the plaintiff’s complaint. It is then stated in the opinion that these briefly stated facts caused considerable misunderstanding which resulted in the aforesaid failure to timely file an answer. It is my thought that rather than a misunderstanding the described circumstances constituted confusion, not contributed to by the plaintiff, but caused solely by the insurance company through its agents.
¶4The record reveals that Mr. Smith over a long period of years had handled these claims for the Liberty Mutual Insurance Company and, being thoroughly experienced in this field, knew that an answer or some pleading had to be filed in reply to the complaint. He had no right to assume that Mr. Klostermeyer, or any other counsel, without his direction would file such answer. As noted in the opinion, “Mr. Smith forgot to have a new file made for the instant case and also forgot to send the summons to attorney Klostermeyer.” I believe that this action on the part of Mr. Smith and therefore by the insurance company constitutes negligence but not the excusable neglect contemplated by R.C.P. 60 (b).
¶5To adopt the view of the majority would, in my opinion, void all default judgments against insurance companies upon their showing that some clerk in their office, known or unknown, misfiled pertinent papers. It appears that there is a conflict in the authorities but it is my firm belief, in agreement with the decision in Stevens v. Gulf Oil Corp., 108 R.I. 209, 274 A.2d 163, that the situation described in the instant case, that is, misfiling of the complaint or other pertinent papers does not constitute excusable neglect but is mere negligence.
¶6*194Even though, as aforesaid, I agree with Point 3 of the Syllabus of the opinion to the effect that a motion to vacate a default judgment is addressed to the sound discretion of the court and that its ruling will not he disturbed unless there is a showing of abuse, I believe that the instant facts clearly show such abuse of discretion. If the facts of the instant case constitute excusable neglect then any time that a paper is misfiled or an answer is not made by reason of ordinary negligence grounds would be provided to set aside a default judgment. Although default judgments are not favored by the courts they constitute sound and enforceable judgments unless they are set aside for reasons expressly provided in R.C.P. 60 (b).
¶7I have been authorized to say that Justice Haden joins in this dissent.