14 Fla. L. Weekly Supp. 569a
Insurance — Personal injury protection — Default — Vacation — Insurer who waited nearly a month after learning of entry of default to file motion to vacate did not act with due diligence — Conduct, taken as a whole, did not amount to excusable neglect — Motion to vacate default is denied
PHYSICIAN’S FIRST CHOICE INTERPRETATION, INC., (a/a/o Brenda Rosario), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-223 COCE (53). March 30, 2007. Robert W. Lee, Judge. Counsel: Amir Fleischer, Fort Lauderdale, for Plaintiff. Johane Altenor, Coral Gables, for Defendant.
[Editor’s note: Order of default at 14 Fla. L. Weekly 383a]
ORDER DENYING DEFENDANT’S MOTION TO SET ASIDE DEFAULT
THIS CAUSE came before the Court on March 29, 2007 for hearing 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 received evidence and heard argument; 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 January 2, 2007, the Plaintiff filed its Complaint in this action. The Defendant was served on January 10, 2007. Shortly thereafter, the file was transferred to defense counsel to handle. On January 30, 2007, the Plaintiff moved for a default. A copy of the Motion for Default was served on the Defendant. On February 1, 2007, before a default was entered, the Defendant prepared an Answer and Affirmative Defenses. Rather than file the original and serve copies, the attorney’s secretary placed the original in a file. Simultaneously, the attorney prepared a response to a discovery request. In this instance, the same secretary forwarded the original discovery response to the Miami-Dade Clerk of Courts instead of the Broward Clerk of Courts.
Defense counsel received a copy of Plaintiff’s Motion for Default. Although the Motion was dated a day before counsel prepared its Answer, it decided not to take any action of the Motion, believing that its Answer would timely make its way to the Court file. On February 7, 2007, the Court entered its Order of Default, for reasons set forth in the Order. The Court mailed a copy of the Order of Default to both parties. According to its records, the Defendant received a copy of Order of Default on February 13, 2007. Once again, however, the Defendant failed to act upon receipt of an item warning it that a default had been entered. On February 16, 2007, defense counsel’s secretary called the Judge’s office in an attempt to set a hearing on a Motion to Dismiss. The secretary was advised that a default had been entered, so the Motion would not be set for hearing. It was at this time that the secretary discovered the original Answer still in her file.
Notwithstanding the Defendant’s acknowledgment that it had received a copy of the Motion for Default and the Order of Default by February 13, and further that it obtained telephone confirmation of the default by February 16, the defense counsel was unable to explain why it continued to wait almost another two weeks to try to remedy the situation. Moreover, when the Defendant finally served its Motion to Set Aside Default and proposed Answer on February 27, it failed to actually file these with the Clerk until March 1, 2007.
At the hearing, the Defendant did not dispute that the default was properly entered. The Defendant’s position at the hearing, was that its failure to timely respond to the Complaint was excusable. The Plaintiff has clearly objected to the relief sought by the Defendant.
Conclusions of Law. To properly analyze the Defendant’s request for relief, the Court considers the general standards for vacating a default. In doing so, the Court does not believe the Defendant is 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 the failure to act in this cause is due to “excusable neglect”; (2) that it has a meritorious defense to the action; and (3) that 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). The Court initially notes that the second and fourth prongs are not at issue here, as the Defendant has proffered a meritorious defense, and further submitted the Motion under oath. The Court finds, however, that the Defendant has failed to meet its burden on the two remaining requirements.
As for the first prong, the Court finds that the Defendant’s conduct, taken as a whole, simply fails to establish excusable neglect. This is not a situation involving an unsophisticated client. Rather, the Defendant handles many of its cases in-house, and is without a doubt well aware of the rules concerning deadlines.
As for the third prong, the Court concludes that the Defendant has not acted with due diligence in attempting to have the default set aside once it learned that the default had been entered. The record reveals that the Defendant knew or clearly should have known of the seeking of a default during the first week of February. And yet, the Defendant waited until March 1st to file its Motion to Set Aside Default. This is simply not due diligence under the facts of this particular case. Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion to Vacate Default is hereby DENIED.
