15 Fla. L. Weekly Supp. 680b

Insurance — Personal injury protection — Default — Vacation — Although insurer demonstrated due diligence in moving to set aside default and established excusable neglect through affidavit stating that untimely filing was due to courier’s error, insurer failed to establish meritorious defense — Denial of motion to vacate is affirmed

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. MRI ASSOCIATES OF AMERICA, LLC (a/a/o Gabriela Lam), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 06-20750 (03). L.T. Case No. 06-14704 (53). April 16, 2008. Counsel: Joseph R. Dawson, Fort Lauderdale. Christopher W. Wadsworth, Miami.

OPINION

(PATTI ENGLANDER HENNING, 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. For the following reasons, the lower court is affirmed.

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 21, 2006 order the lower court found that the Appellant demonstrated due diligence in moving to set aside the default, but failed to establish excusable neglect and a meritorious defense.

This Court finds that Appellant’s sworn affidavits alleging that the motion was filed untimely due to a courier’s mistake establishes excusable neglect. Mishandling or misfiling of suit papers constitutes excusable neglect. Royal Caribbean Cruise Ltd. v. Traveler, 699 So.2d 847 (Fla. 3rd DCA 1997).

In the present case, Appellant failed to establish a meritorious defense by either filing an unverified pleading or an affidavit. Merrill Lynch Mortg. Capital, Inc. v. Hallmark Industries, Inc., 627 So.2d 12 (Fla. 2nd DCA 1993). The lower court entered its Order denying the motion to vacate default on November 21, 2006, and as of that time Appellant had not filed an affidavit or an unverified pleading stating their defense.

ORDERED AND ADJUDGED that the lower court is affirmed.