10 Fla. L. Weekly Supp. 461c
Insurance — Personal injury protection — Default — Vacation — Excusable neglect — Motion to vacate default is denied where insurer made conscious decision not to appear at pretrial conference or respond to complaint
TERRY WILLIAMS, Plaintiff, v. DIRECT GENERAL INSURANCE COMPANY, a corporation authorized and doing business in the State of Florida, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 02-SC-003416-19-F. April 7, 2003. Mark E. Herr, Judge. Counsel: Michael B. Brehne, Law Offices of Michael B. Brehne, P.A., Maitland, for Plaintiff. Louis Kaye, Allen, Kopet & Boyd, PLLC, Orlando, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR ENTRY OF FINAL JUDGMENT/DEFENDANT’S MOTION FOR REHEARING ONPLAINTIFF’S MOTION FOR ENTRY OF DEFAULT AND DEFENDANT’S MOTION TO SET ASIDE DEFAULT
THIS CAUSE came on for hearing February 26, 2003, on Plaintiff’s Motion For Entry Of Final Judgment/Defendant’s Motion To Set Aside Default, the Court having heard argument of counsel and being otherwise fully advised in the premises makes the following findings of facts and conclusions of law:
FINDINGS OF FACT
1. Plaintiff filed a complaint against Defendant to recover outstanding PIP benefits on October 9, 2002. Defendant was served on November 1, 2002 through Defendant’s registered agent, the Insurance Commissioner.
2. Defendant was notified of a Pre-trial conference scheduled by this Court to occur on November 13, 2002. The notice required the Defendant to appear in person or by attorney, or a judgment will be entered against them.
3. Defendant and Plaintiff’s counsel entered into settlement negotiations prior to the pre-trial conference and Defendant offered to pay the outstanding sums owed to Dr. Hoffmeister for date of service 7/24/02, as well as attorney’s fees and costs.
4. However, Defendant did not appear at the pre-trial conference or have an attorney present for them.
5. This Court entered a Default against Defendant.
6. On December 3, 2002, Defendant withdrew its offer to pay the outstanding amounts owed to Dr. Hoffmeister or any other provider and went as far as to cancel a check that it had issued to Pine Castle Chiropractic.
7. On December 6, 2002, Plaintiff moved to enter a final judgment against Defendant based on the default entered against them at the pre-trial conference.
8. Defendant was given notice of the hearing on Plaintiff’s motion to enter final judgment through their registered agent.
9. Defendant, through counsel Louis Kaye, Esquire moved to set aside the default by motion dated December 9, 2002.
10. Defendant however, did not appear at Plaintiff’s hearing for entry of final judgment.
CONCLUSIONS OF LAW
Even though there is a longstanding policy of liberality toward the vacation of defaults so that the merits of a cause may be reached, it is still the movant’s burden of both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and meritorious defense. Westinghouse Elevator Co. v. DFS Construction Co., 438 So. 2d 125, 126 (Fla. 2 DCA 1983). Additionally, the movement must demonstrate due diligence in seeking relief from the default. Id.
To demonstrate excusable neglect, the Defendant must, by affidavit or other sworn statement, set forth facts explaining the mistake or inadvertence. Moreno Construction Inc. v. Clancy and Days Construction Co., 722 So. 2d 976, 977 (Fla. 5 DCA 1999). Although Florida courts recognize that inadvertent mishandling of a summons and complaint by clerical staff can be considered excusable neglect, there is no case law to support Defendant’s intentional failure to respond to Plaintiff’s complaint is excusable.
Rule 1.500(a) allows entry of a default by the Clerk where no paper has been served by a Defendant in an action. Fla. R. Civ. P. 1.500(a). The underlying premise for this provision is the notion that failure to appear or to otherwise respond to the complaint indicates that a defendant does not intend to contest the case. Gulf Maintenance & Supply, Inc. v. Barnett Bank, 513 So. 2d 813 (Fla. 1 DCA 1989). Further, a defendant’s failure to retain counsel or a defendant’s failure to understand the legal consequences of his inaction is not excusable neglect. Joe-Lin, Inc. v. LRG Restaurant Group, Inc., 696 So. 2d 539, 541 (Fla. 5 DCA 1997).
In this case, Defendant has failed to meet the requirements for setting aside the default entered against them. Defendant’s failed to demonstrate the requisite neglect on the part of Defendant to respond to the complaint or to have counsel appear at pre-trial. Instead, the Defendant made a conscious decision not to appear at Pretrial or to respond to the complaint. The court finds, as a matter of law, there was no “inadvertence” or “excusable neglect” in not attending the Pretrial. Lastly, because there was no “excusable neglect” we do not reach due diligence or a meritorious defense. Defendant failed to appear at the noticed hearing on Plaintiff’s motion to enter Judgment or have their counsel appear on their behalf.
WHEREFORE, Plaintiff’s Motion For Entry Of Final Judgment is hereby GRANTED. Defendant’s Motion to Set Aside Default is hereby DENIED.
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