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[*28] 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.