10 Fla. L. Weekly Supp. 475b

Insurance — Civil procedure — Default — Vacation — Where default was entered by clerk without notice to insurer after insurer filed notice of serving interrogatories, default and judgment based thereon are void — Motion for rehearing and motion to set aside default judgment which raised for the first time argument that default was entered in violation of due process notice requirement of rule 1.500 was not untimely filed because void judgment may be set aside at any time — Default vacated

STAR CASUALTY INSURANCE COMPANY, Appellant, vs. BEATRIZ OTANO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-280 AP. L.C. Case No. 01-6662 CC 05. June 3, 2003. An Appeal from County Court, Miami-Dade County, Shelley J. Kravitz, Judge. Counsel: Mark A. Gatica, for Appellant. Michael J. Schwartz, for Appellee.

[Certiorari denied at 31 Fla. L. Weekly D1095b.]

(Before FREDRICKA G. SMITH, MICHAEL B. CHAVIES and PETER R. LOPEZ, JJ.)

(PER CURIAM.) We review the trial court’s final default judgment entered in favor of the plaintiff, Beatriz Otano (“Otano”), against her PIP carrier, Star Casualty Insurance Company (“Star Casualty”). For the reasons which follow, we reverse the final default judgment and remand for consideration on the merits. A brief summary of the facts follows: Otano sued Star Casualty on April 19, 2001 after Star Casualty declined payment of Otano’s medical expenses under the PIP provision of her policy. Service of process was obtained against Star Casualty on May 7, 2001, making a response due by May 28, 2001. On May 30, 2001, Otano filed an ex parte motion for default. On June 1, 2001, Star Casualty filed a notice of serving interrogatories. A clerk’s default was entered on June 4, 2001. Apparently unaware that a default had been entered, on July 16, 2001, Star Casualty filed a motion for summary judgment and noticed it for hearing on August 24, 2001. On September 10, 2001, Star Casualty filed a motion to vacate default judgment alleging that an answer had been filed, that defendant had a meritorious defense, that the default resulted from excusable neglect and that the defendant acted with due diligence.¹ There is no reference in the motion to the improper entry of the clerk’s default.

On January 23, 2002, Otano filed a motion for default judgment. On February 4, 2002, Star Casualty filed a notice of hearing on its previously filed motion to vacate default judgment. Both motions were finally heard by the trial judge on June 10, 2002 and a final default judgment was entered in the amount of $8,000 with prejudgment interest of $1,200. On July 1, 2002, an emergency motion for rehearing, motion to set aside default and final default judgment and motion to dismiss was served by Star Casualty in which the defendant clearly pointed out that the entry of the clerk’s default was in violation of Rule 1.500 of the Florida Rules of Civil Procedure. On July 2, 2002, the court denied the motion. This appeal followed.

Under Florida Rules of Civil Procedure 1.500(b) “when a party against whom affirmative relief is sought has appeared in the action by filing or serving any papers, no default may be entered against such party without prior notice of the application for default”. (Emphasis added). International Energy Corporation v. Hackett, 687 So. 2d 941, 943 (Fla. 3d DCA 1997); citing Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996); see also Reicheinbach v. Southeast Bank, NA, 462 So. 2d 611, 612 (Fla. 3d DCA 1985). “The term ‘paper’ is construed liberally and includes any written communication that informs the plaintiff of the defendant’s intent to contest the claim.” Becker v. Re/Max Horizons Realty, Inc., 819 So. 2d 887, 890 (Fla. 1st DCA 2002). The parties agree that the notice of serving interrogatories filed by Star Casualty on June 1, 2001, is a “paper” filed in the action. Therefore, the clerk’s default of June 4, 2001 was entered in violation of the due process notice requirement of Rule 1.500 and should have been set aside without regard to whether the defendant set forth a meritorious defense or excusable neglect. International Energy Corp., 687 So. 2d at 943; Yellow Jacket Marina, Inc., 670 So. 2d at 171; see also Hyman v. Canter, 389 So. 2d 322 (Fla. 3d DCA 1980) (where order of default is found to be invalid, defendant need not show meritorious defense); Green Solutions International, Inc. v. Gilligan, 807 So. 2d 693 (Fla. 5th DCA 2002) (with a void default, it is unnecessary for the appellant to demonstrate the existence of a meritorious defense, excusable neglect and due diligence in moving to set aside the default).

Although the clerk’s default was void and the defendant, Star Casualty, should have moved to set it aside on that basis, it did not do so. The motion that was filed on September 10, 2001 was never specifically ruled on by the trial judge but was denied by implication when the judge entered a final default judgment on June 10, 2002. When the proper argument was finally brought to the trial court’s attention in the July 1, 2002 motion, the requested relief should have been, but was not, granted.

We do not agree with the appellee’s position that the motion for rehearing and to set aside the default judgment was untimely filed and, therefore, a nullity. The setting aside of a default judgment is governed not by Rule 1.530(b), as urged by appellee, but by Rule 1.500(d) which provides:

The court may set aside a default, and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with rule 1.540(b).

Rule 1.540(b) sets forth several grounds upon which a judgment may be set aside including that the judgment is void. On this ground, a judgment can be vacated at any time. As discussed above, when a default is entered by the clerk without notice to the defendant after a “paper” was filed or served, that default and any judgment based thereon are invalid.

For these reasons, we reverse the trial court’s decision, vacate the default and final default judgment and remand the case for further consideration on the merits. (JUDGES SMITH, CHAVIES AND LOPEZ concur.)

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¹This motion was improperly named a motion to vacate default judgment, when no judgment had been entered. Further, there is no record of an answer having been filed, nor did the defendant properly set forth the nature of the alleged meritorious defense or excusable neglect. However, for reasons set forth above, these defects are not fatal to the appellant’s position.

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