15 Fla. L. Weekly Supp. 336c
Insurance — Personal injury protection — Default — Vacation — Abuse of discretion to deny motion to vacate default — Mishandling that resulted in late filing of insurer’s responsive pleading constituted excusable neglect, and insurer’s answer and affirmative defenses established meritorious defense
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. DR. MICHAEL SURDIS, JR., P.A., a/a/o Hector Rios, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 07-5364 CACE (11). L.T. Case No. 06-14722 COCE (53). December 3, 2007.
OPINION
(BARRY E. GOLDSTEIN, J.) THIS CAUSE is before the Court on appeal from a county court order entering a final default judgment against the Appellant, United Automobile Insurance Company. This Court having reviewed the parties’ briefs, having reviewed the record, and being duly advised in the premises, finds and decides as follows:
On September 29, 2006, Appellant was served with Appellee’s complaint. Appellant’s trial counsel, who were retained six days before a responsive pleading was due, filed a Notice of Appearance on October 17, 2006. Appellee filed a Motion for Default on October 19, 2006, the same day a responsive pleading was due. Appellant’s trial counsel intended to file a Motion for Enlargement of Time on October 19, 2006, but due to a courier’s error the motion was sent to the firm’s West Palm Beach office and was not filed until October 23, 2006, four days late. On the same day the Motion for Enlargement of Time was filed1, the trial judge granted Appellee’s Motion for Default. On November 28, 2006, the trial court denied Appellant’s Motion to Vacate Default and also subsequently denied Appellant’s Motion for Rehearing/Reconsideration. Final judgment in favor of Appellee was entered on January 29, 2007. Appellant argues that the lower court abused its discretion in denying its motion to vacate the default. This Court agrees.
In order to prevail on a motion to vacate a default, a defendant must establish three requirements: 1) that the failure to act in the cause is 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 in a reasonable time. Lehner v. Durso, 816 So. 2d 1171 (Fla. 4th DCA 2002). In its November 28, 2006 order denying Appellant’s Motion to Vacate Default, the lower court found that Appellant demonstrated due diligence in moving to set aside the default, but failed to establish excusable neglect and a meritorious defense.
The lower court stated that Appellant submitted three affidavits to establish excusable neglect as to its trial counsel’s failure to timely file the motion, but did not provide sworn proof as to Appellant’s own conduct in failing to timely refer the case and inform its attorneys of the related deadlines. However, the timing of Appellant’s referral of the case is not relevant in determining whether its counsel established excusable neglect for failing to timely file a responsive pleading. Appellant’s attorneys were aware of the deadlines and intended to timely file the Motion for Enlargement of Time. The motion was inadvertently sent to the firm’s West Palm Beach office and was subsequently filed four days late. This Court finds that Appellant’s sworn affidavits established excusable neglect. Mishandling or misfiling of suit papers constitutes excusable neglect. Royal Caribbean Cruise Ltd. v. Traveler, 699 So. 2d 847 (Fla. 3d DCA 1997). Additionally, this Court finds that Appellant’s Answer and Affirmative Defenses, which were filed on November 6, 2006, sufficiently established a meritorious defense. See Allstate v. Ladner, 740 So. 2d 42 (Fla. 1st DCA 1999).
“Florida public policy favors the setting aside of defaults so that controversies may be decided upon the merits.” Jeyanandarajan v. Freedman, 863 So. 2d 432 (Fla. 4th DCA 2003). Any reasonable doubt whether to grant a motion to vacate a default should be resolved in favor of granting the motion and allowing the matter to proceed to trial upon merits. Id. Accordingly, it is hereby,
ORDERED AND ADJUDGED that the Orders under review are REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
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1Defendant’s Motion for Enlargement of Time was filed of record after the default was docketed. See Order dated November 28, 2006.
