12 Fla. L. Weekly Supp. 495b
Insurance — Personal injury protection — Default — Vacation — Denial — Excusable neglect — Motion to set aside default is denied where, although insurer claims it was unaware motion for enlargement of time to respond to complaint had been denied, it offered no good faith explanation as to why mail would not reach insurer’s counsel at address provided by counsel or explanation for its failure to respond to court clerk’s telephone inquiry regarding failure to include return envelopes with motion for enlargement of time — Neglect due to understaffing, although perhaps excusable if an isolated circumstance, is no longer excusable where it has persisted over past two years
RICHARD MAZLIN, D.C., P.A, a/a/o Julio Andrade, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-18825 COCE (53). February 15, 2005. Robert W. Lee, Judge. Counsel: Dean Viskovich, North Miami, for Plaintiff. Kishasha B. Sharp, Coral Gables, for Defendant.
REVERSED. 13 Fla. L. Weekly Supp. 129a
ORDER DENYING DEFENDANT’S MOTION TO SET A SIDE DEFAULT
THIS CAUSE came before the Court for consideration of the Defendant’s Motion to Set Aside Default, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
Findings of Fact. On December 9, 2004, the Defendant was served with process, thus triggering a response deadline of December 29. Rather than timely filing a response, the Defendant had counsel file a Notice of Appearance and a Motion for Enlargement of Time to Respond to the Complaint on December 27, 2004. The matter was referred to the Court by the Clerk. Noting that the Defendant had failed to include return envelopes, the Court had the Clerk contact defense counsel’s office to obtain these. The Clerk’s notes as contained in the court file indicate that the deputy clerk spoke with Georgette at defense counsel’s office on January 11, 2005 and requested the return envelopes. To date, defense counsel’s office has failed to provide these to the Court or seek a hearing on its Motion.
On January 18, 2005, the Court entered its Order Denying the Defendant’s Motion for Enlargement of Time. Specifically, the Court ruled that “the Defendant’s attorney failed to provide return envelopes. The Court had the Clerk contact defense counsel to obtain return envelopes. As of today, they still have not been provided. As defense counsel has as a result a de facto extension due to its dilatory conduct, no further extension will be granted. The Plaintiff may move for a default.” A copy of this Order was mailed to defense counsel by the Court.
Notwithstanding the Clerk’s telephone call and the Court’s providing of the Order, the Defendant continued to fail to respond. A week later, the Plaintiff filed its Motion for Default. As required by rule, the Plaintiff served a copy of the Motion on defense counsel by mail on January 25. On January 27, the Court entered the Default. Once again, a copy of the Default was mailed to defense counsel by the Court. More than a week later, on February 7, the Defendant filed its Motion to Set Aside Default. The Defendant claims that it “was unaware that Defendant failed to provide envelopes to the Court or that its Motion had been denied.”
Conclusions of Law. The Court finds that the Defendant is not entitled to the relief it is seeking. In order to prevail on a motion to vacate default, the Defendant must establish three matters: (1) that its failure to act in this cause is due to “excusable neglect”; (2) that it has a meritorious defense to the action; and (3) it has acted with due diligence in moving to set aside the default within a reasonable time after discovering that it had been entered. Credit General Ins. Co. v. Thomas, 515 So.2d 336, 337 (Fla. 3d DCA 1987). Moreover, the motion must be made under oath. Dodrill v. Infe, Inc., 837 So.2d 1187, 1187 (Fla. 4th DCA 2003). As for the latter inquiry, the Court notes that the Motion was submitted under oath.
As for the initial inquiry, the Court finds that the Defendant has simply failed to establish excusable neglect. Although the Defendant claims that it “was unaware” that the Motion for Enlargement had been denied, it has offered no good faith explanation as to why the mail would not reach counsel at the address provided by counsel, nor has it offered any good faith explanation as to its failure to respond to the Clerk’s telephone inquiry. The Defendant cannot create the problem by consistently providing an apparent insufficient number of attorneys and staff to handle its cases, and then try to claim as an excuse that its attorneys have too much work. This Court has admonished Defendant on several prior occasions that it cannot continue to use as an excuse staffing problems. Having presided over civil cases involving this Defendant for almost two years, the Court notes a consistent theme which has continued unabated. See, e.g., Marlon Ellis v. United Automobile Insurance Company, Order Granting Plaintiff’s Motion to Strike Defendant’s Pleadings, Enter Default, and Default Judgment, Case No. 04-13524 COCE 53, Feb. 9, 2005 (providing partial list of admonishments and sanctions); A1 Mobile MRI, Inc. v. United Automobile Insurance Company, Order Granting Plaintiff’s Motion for Sanctions, Striking Defendant’s Pleadings, and Entering Default Judgment, Case No. 03-13760 COCE 53, Feb. 8, 2005 (same). The Court finds that the Defendant’s neglect, although perhaps excusable if this were an isolated circumstance for this Defendant, is in this instance no longer excusable.
The Defendant has proffered a defense. However, the Court need not consider whether the proffered defense is meritorious because, even if the Defendant had established excusable neglect and a meritorious defense, the Court further finds under the unique circumstances of this case that the Defendant has further failed to act with due diligence in seeking to remedy the situation. Accordingly, it is hereby
ORDERED and ADJUDGED that the Motion to Vacate Default is hereby DENIED.
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