11 Fla. L. Weekly Supp. 484a
Insurance — Personal injury protection — Small claims — Default — Where insurer who invoked rules of civil procedure in small claims action failed to file answer until fifteen months after answer was due under those rules and more than two months after motion for default was filed, insurer has not responded to request to produce for year and half based on stated inability to locate PIP file, insurer served incomplete responses to interrogatories 497 days late, insurer did not respond to request for admissions, and insurer has not filed any evidence demonstrating excusable neglect, default is entered against insurer
RIADH A. FAKHOURY, DC, P.A., as assignee of Ernest Stine, Plaintiff, vs. HARTFORD INSURANCE OF THE MIDWEST, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 02-SC-2529. February 16, 2004. Donald L. Marblestone, Judge. Counsel: John J. Pine. Thomas Andrew Player, Weiss Legal Group, P.A., Maitland.
DEFAULT
This matter came before the court on February 3, 2004, on Plaintiff’s Motion for Default, and having been advised in the premises and having heard argument of counsel, a Default is entered in this action, pursuant to Plaintiff’s motion, against the Defendant, HARTFORD INSURANCE OF THE MIDWEST, for failure to timely serve or file an Answer or other responsive pleading as required by law.
In granting the Plaintiff’s motion for Default the following factors were considered important by the court:
1. It was the Defendant who moved to invoke the Florida Rules of Civil Procedure in this small claims action;
2. Upon invoking the Florida Rules of Civil Procedure, an Answer or other responsive pleading became due from the Defendant. The absolute latest possible date that Defendant’s Answer or other responsive pleading would have been due, 20 days from the date of entry of the Order invoking the Florida Rules of Civil Procedure, was October 23, 2002;
3. The Defendant did not comply with the Florida Rules of Civil Procedure by timely filing an Answer or other responsive pleading;
4. The Defendant eventually filed an Answer on January 6, 2004, almost fifteen months late, and more than two months after Plaintiff filed its Motion for Default;
5. The Defendant did not respond to Plaintiff’s Request to Produce for the stated reason that it could not find the PIP file and therefore could not comply; as of the date of this hearing it is 550 days since the Defendant was served with the Request to Produce and the court believes that a year and a half is more than ample time for the Defendant to have located the PIP file;
6. The Defendant served incomplete responses to Plaintiff’s Interrogatories, and the responses served were 497 days late;
7. The Defendant did not respond to Plaintiff’s Request for Admissions; they are deemed admitted by operation of law, and the Defendant is barred by the time limitations of Fla.R.Civ.P. 1.540 from seeking relief therefrom;
8. Defendant has not filed any affidavits nor offered any other evidence demonstrating excusable neglect.
In considering the foregoing the court finds that Defendant’s neglect extends beyond simply failing to timely serve an Answer, and in light of the totality of the circumstances Defendant’s neglect is not excusable. Accordingly, Default is entered in this action against the Defendant, HARTFORD INSURANCE OF THE MIDWEST.
* * *
