12 Fla. L. Weekly Supp. 869a
Insurance — Personal injury protection — Default — Vacation — Motion to set aside default is granted where insurer established excusable neglect based on failure of attorney’s assistant to open email forwarding complaint, established meritorious defense by proposed answer and affirmative defenses, and acted with due diligence in moving to set aside default on same day counsel learned of default
PHYSIATRIC PAIN & MEDICAL REHABILITATION CLINIC, P.A., a/a/o LORETTA TRAMEL, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 05-CC-2544. June 23, 2005. Antoinette Plogstedt, Judge. Counsel: George Milev, Adams & Diaco, P.A., Tampa. Jeffery Byrd.
ORDER SETTING A SIDE DEFAULT
THIS CAUSE having come before the Court on Defendant’s Motion to Set Aside Default on June 16, 2005, the Court having heard arguments by counsels for Plaintiff and Defendant and otherwise being fully advised in the premises, hereby
FINDS, ORDERS AND ADJUDGES as follows:
1. The above styled lawsuit was served to Defendant by certified mail on 3/17/05.
2. The Complaint was forwarded via e-mail to counsel for Defendant on 4/1/05.
3. Defendant counsel’s assistant failed to open the e-mail, print the complaint and present to Defendant’s counsel for handling.
4. Defendant failed to file any responsive pleadings and as a result a default was entered on 4/22/05.
5. Counsel for Defendant found out about the Complaint and the default for the first time on May 13, 2005.
6. Counsel for Defendant filed a motion to set aside the default on the same day, May 13, 2005.
6. Florida Courts have set a liberal standard for setting aside defaults in order for disputes to be determined on the merits. See North Shore Hospital v. Barber, 143 So. 2d 849 (Fla. 1962).
7. The Defendant established excusable neglect based on the facts in the affidavit filed by Defendant counsel’s assistant evidencing secretarial error in mishandling the Complaint.
8. The Defendant established meritorious defense by the proposed answer and affirmative defenses filed in this case.
9. The Defendant acted in due diligence in moving to set aside the default on the same day Defendant’s counsel learned about the default.
WHEREFORE, Defendant’s Motion to Set Aside Default is hereby GRANTED and Defendant’s Answer and Affirmative Defenses are considered filed on the date of this Order.
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