27 Fla. L. Weekly D1149a
Insurance — Uninsured motorist — Civil procedure — Relief from judgment — Mistake — Absent showing of bad faith, judgment in excess of policy limits cannot be entered against insurer — Policy amount was established in record, although insurer did not appear and assert defense of policy limits or reveal the limits in discovery, where complaint itself alleged that policy limits were $50,000 — Where insurer failed to answer complaint and default was entered, insurer admitted all well-pled factual allegations of complaint, including the policy limits alleged — Default precluded insured from contending that policy limits were greater than amount alleged in complaint, and insured could not allege bad faith on part of insurance company without amending her complaint and giving notice to insurer — Nothing in record supports insured’s contention that default was vacated prior to trial — Even if there were no default and all issues were tried and resolved by jury, no notice was given to insurer that insured claimed policy limits in excess of one million dollars instead of the $50,000 alleged in complaint — Judgment based on lack of notice cannot stand
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. JILL HORKHEIMER, Appellee. 4th District. Case No. 4D00-4069. Opinion filed May 15, 2002. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert Lance Andrews, Judge; L.T. Case No. 99-7426 09. Counsel: Philip D. Parrish and Elizabeth K. Russo of Russo Parrish Appellate Firm, Miami, for appellant. Gary M. Farmer, Jr. of Gillespie, Goldman, Kronengold & Farmer, LLP, Fort Lauderdale, for appellee.ON MOTION FOR REHEARING[Original Opinion at 27 Fla. L. Weekly D44a]
(WARNER, J.) On rehearing, appellee contends that our opinion is wrong because the clerk’s default was vacated by the court. However, the court did not vacate the default until the hearing on the motion to vacate the final judgment months after the trial. The unilateral pretrial statement filed by appellee stated that the defendant was in default. There is nothing in the record that the default was vacated prior to the trial. If so, appellant would have been entitled to notice of the vacation of the default.
Even if appellee assumed there was no default and all issues were tried and resolved by the jury, no notice was given to appellant that appellee was going to trial on matters in excess of what was pled in the complaint. Appellee did not file any pleadings asserting that the insurance exceeded the $50,000 set forth in the original complaint. Florida Rule of Civil Procedure 1.080(a) states, “[n]o service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons.” (Emphasis added). In other words, having secured the clerk’s default, if appellee desired to claim uninsured motorist coverage under the policies in excess of the $50,000 in the complaint, she needed to serve an amended pleading, regardless of her reliance or lack of reliance on the default at trial.
That appellant was entitled to notice of a change in the pleadings or the issues to be litigated at trial is an issue of elementary due process. In Kitchens v. Kitchens, 162 So. 2d 539 (Fla. 3d DCA 1964), the wife filed a complaint for separate maintenance. Her husband failed to answer the complaint and was defaulted. After the default, the wife amended the complaint to seek a divorce but failed to give the husband notice. She secured a final judgment of divorce. The husband appealed the final judgment, and the appellate court reversed:
Obviously, the relief granted by the final decree was substantially different from that initially prayed for. Although the chancellor might have retained jurisdiction to grant the divorce upon proper application, it was incumbent upon the appellee to notify the appellant that she had amended her cause of action. See Rule 1.4(a) Florida Rules of Civil Procedure, 30 F.S.A. Even the most minimal standards of due process would require that notice be given to a party who had suffered a default or decree pro confesso where the complaint has been amended in a matter of substance after the entry of such default. See 49 C.J.S. Judgments § 338, p. 688.
Id. at 541. Another similar case is Hollie v. Hollie, 388 So. 2d 1389 (Fla. 1st DCA 1980), although that case did not involve a default. The wife filed a complaint for divorce which included a claim for alimony. The matter was scheduled for trial, but the wife’s attorney filed a motion to withdraw and a motion for continuance shortly before the trial, both of which were denied. At the trial, neither the wife nor her attorney appeared. The trial court allowed the husband to file a counterclaim for dissolution which contained no provision for alimony, and the court entered a final judgment on the counterclaim. The appellate court held:
Although we do not condone the late filing of the motion for continuance, and the failure of the wife or her attorney to appear at the final hearing, the trial judge’s denial of the motion for continuance furnished no basis upon which the husband could be permitted to assert a claim for affirmative relief without notice, service of the amended pleading upon the wife, or affording her an opportunity to respond. Kitchens v. Kitchens, 162 So. 2d 539 (Fla. 3d DCA 1964); Rule 1.080, Florida Rules of Civil Procedure. Rule 1.190(b), Florida Rules of Civil Procedure, relating to issues “tried by express or implied consent of the parties,”, and authorizing amendment of the pleadings “to conform to the evidence” cannot be applied to justify the procedure followed here.
Id. at 1390. Similarly, in this case, if appellee is claiming that she tried all issues to the jury, then she was required to give notice to the defendant that she now claimed policy limits in excess of one million dollars instead of the $50,000 which she alleged in her complaint. No notice was given to defendant of this change in her claim. A judgment based upon lack of notice cannot stand. See id.; Kitchens, 162 So. 2d at 541.
The motion for rehearing is denied. (GUNTHER and GROSS, JJ., concur.)
