10 Fla. L. Weekly Supp. 458b
NOT FINAL VERSION OF OPINION
Subsequent Changes at 10 Fla. L. Weekly Supp. 1043a
Insurance — Personal injury protection — Civil procedure — Default — Excusable neglect — Unverified, unsubstantiated claim by defendant that parties had informal agreement for indefinite extension on responding to complaint was refuted by way of affidavit filed in opposition to motion to set aside default and was unsupported by any proof or written documentation establishing that extension was ever discussed — Affidavit of defendant’s claims examiner, presented for first time midway through hearing, was untimely and, in any event, contained nothing that satisfied defendant’s burden of proving excusable neglect — Statement that defendant “maintains meritorious defenses to the present action,” unaccompanied by any statement as to what those defenses were, not sufficient to prove that defendant had meritorious defense to plaintiff’s claims — Motion to set aside default denied
HOWARD J. GELB, M.D., P.A., F.A.A.O.S., (Susan Peterman, Patient), Plaintiff, vs. GEICO CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 023219 CONO 71. April 8, 2003. Louis H. Schiff, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs. Fernando L. Roig.
ORDER DENYING DEFENDANT’S MOTION TO SET ASIDE DEFAULT
THIS CAUSE having come for hearing before the undersigned and the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is hereupon:
1. The above-styled case arises out of the claims made by the Plaintiff for unpaid personal injury protection insurance benefits.
2. The Plaintiff filed this lawsuit on September 9, 2002 and the Defendant was served with process on October 24, 2002.
3. Pursuant to Florida Rule of Civil Procedure 1.140(a)(1), the Defendant was required to serve its answer within twenty (20) days after service of process.
4. On January 21, 2003, more than two (2) months after the Defendant’s response was due, the Plaintiff filed a Motion for Default and the Clerk of Court entered same on January 24, 2003.
5. Upon learning of the Default, the Defendant retained counsel and on February 25, 2003, filed its Motion to Set Aside Default.
6. Of note, the Defendant also filed its Answer, Affirmative Defenses and Motions to Dismiss on that date, however, same was neither attached to their Motion, nor referenced therein.
7. Although there is a long standing policy of liberality toward the vacation of defaults, it is still the movant’s burden to establish both a legal excuse for failure to comply with the Florida Rules of Civil Procedure, and a meritorious defense. Additionally, the movant must demonstrate due diligence in seeking relief from the default. Westinghouse Elevator Company v. D.F.S. Construction Company, 38 So.2d 125 (Fla. 2nd DCA 1983). To demonstrate excusable neglect, the Defendant must, by affidavit or other sworn statement, set forth facts explaining the mistake or inadvertence; a meritorious defense may be shown by either unverified pleading or an affidavit. Gibralter Service Corporation v. Lome & Associates, Inc., 488 So.2d 582 (Fla. 4th DCA 1986). Plaintiff has conceded that the Defendant acted in due diligence in moving to set aside the default, but believes that it has failed to satisfy the other requirements under Florida law. For the reasons that follow, this Court agrees.
a. This Court finds that the Defendant has failed to allege a factually sufficient reason to vacate the Default based upon excusable neglect. The Defendant has cited Gateway American Bank of Florida v. Lucky Jack Corporation, 727 So.2d 1141 (Fla. 4th DCA 1998), as standing for the proposition that this matter should be permitted to be heard on the merits. That case however requires that excusable neglect of the defendant must be accompanied by “reasonable and credible explanation”. The Defendant has offered neither in this case.
b. The Defendant indicates in its Motion that, “The two parties had an informal agreement for an indefinite extension on responding to the complaint”. This unverified, unsubstantiated claim by the Defendant has been refuted by way of an affidavit filed in opposition to the Motion to Set Aside Default. The Defendant has offered no credible proof or written documentation to establish that an extension was ever discussed.
c. Midway through the hearing on this matter, the Defendant presented, for the first time, an Affidavit of Curt Bridges, a claims examiner for the Defendant. This Affidavit was not provided to either the Court or Plaintiff’s counsel prior to that time. This Affidavit was allegedly sworn to by the affiant the day before the hearing and was not faxed to defense counsel until 3:00 p.m. that afternoon. This Court finds that the Affidavit is untimely, and is both legally and factually insufficient. Moreover, nothing contained within that Affidavit satisfies the Defendant’s burden of proving excusable neglect.
d. Notwithstanding the Defendant’s failure to prove excusable neglect, this Court finds that the Defendant has failed to satisfy its burden of proving that it has a meritorious defense to the Plaintiff’s claims. In paragraph 11 of the Defendant’s Motion, the Defendant states that it “maintains meritorious defenses to the present action”, however, it fails to state what those defenses are. The Defendant indicates that it has attached a proposed Answer to the Motion to Set Aside Default, however, a review of the Court file indicates that the Answer was not attached, but was rather served separately. Furthermore, the Defendant’s Answer, Affirmative Defenses and Motions to Dismiss, failed to properly set forth the facts relied upon to establish the conclusion that a meritorious defense exists.
8. As stated herein, before a trial court may vacate a default, a corporate defendant must allege and prove excusable neglect of an officer or agent, and must allege and prove that the defendant has meritorious defenses to the claims of the plaintiff. This Court finds that there is insufficient proof in the record to show excusable neglect by an officer or agent of the Defendant and the Defendant has failed to establish that it is able to present a meritorious defense to the Plaintiff’s claims, accordingly, the Motion to Set Aside Default is DENIED.
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