19 Fla. L. Weekly Supp. 407b
Online Reference: FLWSUPP 1905WOLMInsurance — Default — Vacation — Insurer’s motion to vacate default is granted where insurer demonstrated excusable neglect in failing to appear at pre-trial conference, asserted meritorious defenses and acted with due diligence to vacate default, and medical provider failed to appear at hearing on motion to vacate default despite being granted leave to appear telephonically
AXCESS DIAGNOSTICS POINTE WEST LLC, D/B/A BOWES IMAGING CENTER, A Florida Corporation (assignee of Wolmart, Carmen), Plaintiff, v. INFINITY ASSURANCE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Manatee County. Case No. 2011-SC-4393. January 12, 2012. Honorable Mark D. Singer, Judge. Counsel: Christopher M. Tuccitto, Law Offices of Russel Lazega, North Miami, for Plaintiff. Sarah H.L. Shelton, Law Office of Sarah H.L. Shelton, Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S VERIFIEDMOTION TO VACATE DEFAULT
THIS CAUSE having come before the Court on January 5, 2012 at 1:30 p.m. and the Court after having reviewed the pleadings and court file and being otherwise fully advised in the premises, it is hereby:
ORDERED and ADJUDGED that the Defendant’s December 9, 2011 Verified Motion to Vacate Default is GRANTED. The Defendant’s Answer, Affirmative Defenses, and Demand for Jury Trial under certificate of service December 9, 2011 shall be deemed filed as of the date of this Order. Counsel for the Plaintiff shall not be entitled to any attorney’s fees relating to the setting aside of the default entered on December 5, 2011.
This Court hereby makes the following findings of fact:
1. Counsel for the Defendant demonstrated excusable neglect in failing to appear at the December 5, 2011 pre-trial conference.
2. Counsel for the Defendant asserted meritorious defenses to the Plaintiff’s claim in its proposed Answer, Affirmative Defenses, and Demand for Jury Trial under certificate of service dated December 9, 2011.
3. Counsel for the Defendant acted in due diligence in filing the December 9, 2011 Defendant’s Verified Motion to Vacate Default (served four days after the pre-trial conference).
4. The Plaintiff, through its counsel, moved this Court for an order to appear telephonically at the January 5, 2012 hearing on the Defendant’s Verified Motion to Vacate Default, filed by counsel for the Defendant. The Plaintiff’s motion was sent directly to the Defendant and not to counsel for the Defendant. The Court granted the Plaintiff’s motion to appear telephonically at the January 5, 2012 hearing. However, no one for the Plaintiff appeared either in person or telephonically for the hearing, despite two telephone calls made by the Court to counsel for the Plaintiff. The second telephone call was made nearly 45 minutes after the scheduled start time of the hearing, and the Court spoke to three separate employees at the Plaintiff’s counsel’s office.
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