11 Fla. L. Weekly Supp. 873d
Insurance — Personal injury protection — Default — Vacation — Excusable neglect — Abuse of discretion to deny motion to vacate default entered for medical provider’s failure to appear at pre-trial conference where affidavits filed in support of motion demonstrated excusable neglect
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. NEUROLOGY ASSOCIATES GROUP, INC. a/a/o CLAUDIA TAMARIZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-324 AP. L.C. Case No. 02-9152 CC 23. July 20, 2004. An Appeal from the County Court for Miami-Dade County, Jacqueline Schwartz, Judge. Counsel: Mark Gatica and The Office of the General Counsel, for Appellant. Marlene S. Reiss, Stephens, Lynn, Klein, Lavaca, Hoffman, & Puya, for Appellee.
(Before LEESFIELD, LANDO, and PINEIRO, JJ.)
(LANDO, Judge.) The appellant, United Automobile Insurance Company, appeals from a final default judgment. The trial court had sua sponte entered a final default against the appellant for its failure to appear at a pre-trial conference. The appellant filed a motion with supporting affidavits to vacate the default on the basis of excusable neglect, but apparently the court denied the motion because it entered final judgment against the appellant. However, the affidavits demonstrated excusable neglect and warranted vacating the default.
The absence of an order in the record showing that the trial court heard and determined the appellant’s motion, combined with this court’s finding of excusable neglect constitutes an abuse of discretion and requires a reversal of the final judgment. The trial court erred by not granting the appellant’s motion to vacate the default.
The appellee’s motion for appellate attorney’s fees is denied as the final judgment against the appellant is reversed.
REVERSED AND REMANDED, in part, and Appellee’s motion is DENIED. (LEESFIELD and PINEIRO, JJ., concur.)
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