14 Fla. L. Weekly Supp. 825a
Insurance — Personal injury protection — Default — Abuse of discretion to enter default against insurer for failure to properly serve or file answer where, although insurer could not confirm that answer was mailed, insured had actual receipt of answer by fax, and explanation that failure to file answer was due to sheer oversight does not indicate willful, contumacious or deliberate conduct
Certiorari granted in part and denied in part at 33 Fla. L. Weekly D2049d
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ROSAIDA PEREZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 05-457 AP & 05-458 AP. L.C. Case No. 00-264 CC 24. June 27, 2007. On appeal from the County Court, Miami-Dade County, Revilla, Ada Pozo, J. Counsel: June Galkoski Hoffman & Marc Shleier, Fowler White Burnett, P.A., for Appellant. Jeannie M. Jontiff, Jontiff & Jontiff, for Appellee.
(Before MARGARITA ESQUIROZ, GISELA CARDONNE ELY, MAXINE COHEN LANDO, JJ.)
(GISELA CARDONNE ELY, Judge.) The lower Court entered a Default Final Judgment in favor of the insured for the failure of the insurer to serve or file an answer to plaintiff’s [Perez] Second Amended Complaint. On January 27, 2000, Appellee, Rosaida Perez (“Perez”), filed suit against appellant, United Automobile Insurance Company (“United Auto”), for failure to pay her Personal Injury Protection [“PIP”] benefits which accrued after a motor vehicle accident. United Auto did not file an answer, and Perez submitted her ‘Motion for Default and Default’ on February 29, 2000. The Court entered a default on February 29, 2000. Thereafter, the default was set aside. Another default was entered against United Auto for failure to file its answer on September 9, 2003. This default was set aside and its answer was deemed filed on September 18, 2003. Perez filed a Motion to Strike United Auto’s Affirmative Defenses on November 24, 2004. The lower court granted her motion and ordered United Auto “to amend to include all its affirmative defenses within one document within 20 days”. Incredibly, United Auto failed to comply with the third order and the Court entered a third default against United Auto and the Final Judgment.
A jury trial was scheduled for September 26, 2005. Before the trial’s commencement, Perez argued the Court record was devoid of the Answer to the last amended complaint and that Florida courts have held that a judgment is voidable if a trial is held without an Answer being filed with the court. In support of her argument, Perez filed a ‘Verified Second Motion for Default and Default Judgment’ since United Auto failed to file its Answer to her amended complaint. United Auto argued that the Answer was faxed to Perez on January 4, 2005. In response, Perez asserted that Fla. R. Civ. P. 1.080(b)(5) requires a faxed pleading to contain a cover sheet and, additionally, to be served by another method permitted by the rule. United Auto was unable to verify whether its faxed Answer was served via an alternate method as prescribed by Florida Rules of Civil Procedure and admitted that its original Answer was discovered in its file when it started its preparation for the trial.
In an effort to correct its carelessness, United Auto offered to file the Answer with the Court. This prompted Perez to alert the court to the fact that United Auto was previously dilatory in its obligation to file an Answer, with several previous defaults. United Auto argued that its failure to file an Answer was a mere oversight which should preclude entry of a default judgment. United Auto even noted that the Order did not require that it file an Answer, it simply required that all of its Affirmative Defenses be incorporated in one document. The Court reiterated that United Auto’s history of neglect in filing a previous answer and its failure to properly serve the Answer by fax and an alternate delivery method and entered a default judgment in favor of Perez.
A final judgment was entered by the lower court. Subsequently, United Auto filed its ‘Motion for Rehearing and/or Motion to Vacate Default Judgment’. The lower court denied United Auto’s motion. This appeal ensued.
Decisions on matters that are within the discretion of the trial judge cannot be reversed by the appellate court unless the appellant or petitioner has shown an abuse of discretion. Commonwealth Federal Savings & Loan Association v. Tubero, 569 So. 2d 1271, 1273 (Fla. 1990); See Philip J. Padovano, Florida Appellate Practice, Vol. 2, § 9.5, p. 166 (2006 ed., West 2005).
Dismissal or striking of pleadings and entry of default is the most severe sanction available and must be commensurate with the violation. Zafirakopoulous v. So. Miami Int’l Crabhouse Corp., 513 So. 2d 1353 (Fla. 3d DCA 1987). Willful noncompliance or deliberate disregard of a court’s authority warrants entry of a default. Commonwealth, 569 So. 2d at 1271. The Florida Supreme Court reiterated this in Mercer v. Raine, when it held that ‘a deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.’ 443 So. 2d 944, 946 (Fla. 1983).
In this case, the court entered a default against United Auto for its failure to file its answer on February 29, 2000. Thereafter, the Default was set aside. The next instance a Default was entered against United Auto for failure to file its Answer was on September 9, 2003. This default was set aside and its Answer was deemed filed on September 18, 2003. Perez filed a Motion to Strike United Auto’s Affirmative Defenses on November 24, 2004. The lower court granted her motion and ordered United Auto ‘to amend to include all its affirmative defenses within one document within 20 days.’ Since United Auto failed to comply with the above order, it entered a third Default against United Auto for its failure to properly serve or file its answer to Perez’ second amended complaint. This led to the Final Judgment.
The transcript shows that the lower Court provided United Auto with an opportunity to explain why the answer was not filed. While the Court did not conduct an evidentiary hearing, it permitted both parties to argue why a default should not be entered. United Auto asserted that it could not confirm that the Answer was mailed, but it could provide proof that it was faxed. In other words, the plaintiff had actual receipt, by fax, of United’s Answer. It even argued that its failure to file the answer was a sheer oversight. United Auto offered to file the answer with the Court during the proceeding. The explanation provided by United Auto does not indicate that it was willful, deliberate, acted in bad faith, or exhibited contumacious conduct; it simply indicates carelessness or negligence, not willful, contumacious, or deliberate conduct.
While we recognize the lower court’s frustration in dealing with a dilatory litigant, the law requires reversal of the final judgment. Therefore,
If Perez prevails upon remand, then she will be entitled to attorney’s fees and costs pursuant to §627.428, Fla. Stat. (2006).
The summary judgment in favor of the appellee is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion. (ESQUIROZ and COHEN LANDO, JJ. concur.)
