15 Fla. L. Weekly Supp. 843c
Insurance — Personal injury protection — Default — Vacation — Excusable neglect — Claim that insurer’s lawsuit manager failed to have matter assigned to attorney so that answer would be filed does not establish excusable neglect — Insurer did not act with due diligence where motion to vacate was not filed until nearly a year after insurer knew or should have known of default
AFFIRMED. 17 Fla. L. Weekly Supp. 428b. (United Auto. Ins. Co. v. Persaud, 17th Jud. Cir., 8-14-2009)
YOUGEETA PERSAUD, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant.County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-8183 COCE (53). June 18, 2008. Robert W. Lee, Judge. Counsel: Gary Marks, Fort Lauderdale, for Plaintiff. Rashad H. El-Amin, Coral Gables, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO VACATE FINAL JUDGMENT AND/OR TO CORRECT FINAL JUDGMENT AND MOTION TO STAY EXECUTION
THIS CAUSE came before the Court for consideration of the Defendant’s Motion to Vacate Final Judgment, etc., and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; and having been sufficiently advised in the premises, the Court finds as follows:
Findings of Fact. On July 19, 2007, the Plaintiff obtained a Clerk’s default against the Defendant in this action. A copy of the Motion for Default was served on the Defendant. The Defendant took no action to set aside the default. On November 16, 2007, the Court entered its Final Judgment in Favor of Plaintiff after default. A copy of the Final Judgment was mailed to the Defendant by the Court. On June 16, 2008, the Defendant served the instant Motion. The Defendant asserts that the judgment should be set aside because prior to the judgment being entered, the Defendant had paid up to the policy limits on the claim to other providers. The Defendant further claims that its “Lawsuit Distribution Manager” failed to have this matter assigned to an attorney so that an answer could be timely filed. The Defendant relies on Rule 1.540(b)(5), dealing with satisfaction of a judgment and other equitable reasons not to enforce a judgment. The Defendant urges that its actions arise from excusable neglect and that it has acted with due diligence in moving to set aside the judgment.
Conclusions of Law. To properly analyze the Defendant’s request for relief, the Court first 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.
More strikingly, though, is the third prong. Here, the Defendant has simply 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 almost one year ago. And yet, the Defendant waited until June 16th to file its Motion to Vacate. This is simply not due diligence under the facts of this particular case. See Bayview Tower Condominium Association, Inc. v. Schweizer, 475 So.2d 982, 983 (Fla. 3d DCA 1985) (30-day delay too late); 32A Fla. Jur. 2d. Judgment & Decrees §287 (2003) (more than 20-day delay too late). Based on the same reasoning, the Court finds that the equities are not with the Defendant under Rule 1.540(b)(5). Cf. Brown v. Sullivan, 113 Fla. 59, 62-63, 151 So. 319, 321 (1933). Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion to Vacate Final Judgment and/or Motion to Correct Final Judgment and Motion to Stay Execution are hereby DENIED.
