21 Fla. L. Weekly Supp. 692a
Online Reference: FLWSUPP 2107NAVAInsurance — Default — Vacation — Due diligence — Where motion to vacate default was filed more than three months after insurer’s counsel was aware of default and more than two months after attorney was assigned to draft motion, insurer did not act with due diligence in seeking relief from default — Fact that motion for default and default were served on insurer directly, rather than on its counsel, does not render default void and subject to attack at any time where insurer delayed seeking relief for months after its counsel learned of default — Motion to vacate denied
TRANS-IMAGING DIAGNOSTIC MEDICAL CENTER, CORP., a Florida Corp. (a/a/o Navarro, Mary), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-3266 CC 23. March 5, 2014. Charles K. Johnson, Judge. Counsel: Jacklyne Marti, Florida Advocates, Dania Beach, for Plaintiff. Bronstein & Carmona, P.A., Fort Lauderdale, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO VACATE DEFAULT JUDGMENT
THIS CAUSE came before the court for hearing on January 30, 2014 on the Defendant’s Motion to Vacate Default Judgment and the court, having reviewed the motions, the court file, legal authorities and having heard argument of counsel, finds as follows:
This case presents a somewhat troubling set of facts in that the Motion for Default was sent to the Defendant, State Farm Insurance Company, directly, rather than to the attorneys representing State Farm, who had filed a notice of appearance.
Clearly, pursuant to Florida Rule of Judicial Administration 2.516, notice of the Motion for Default should properly have been served upon the attorneys representing State Farm.
It was not made clear during the hearing exactly how this mistake occurred.
Factually, there is no question but that State Farm, as a corporate entity, was served with the Motion for Default and the Default. The Default was ultimately forwarded to Defense Counsel.
One of the critical issues the Defendant must address in attempting to vacate a default is whether the moving party acted with due diligence in seeking relief from the default.
The Default was granted on September 6, 2013. Although the record does not firmly establish exactly when the Defense firm received that Default, the Defendant’s attorney testified in court that they had received the Order of Default on or around September 24, 2013. The Affidavit of Defense Counsel establishes that she was assigned to draft a motion to vacate default on October 19, 2013. Through a series of errors and delays, the Motion to Vacate Default was not filed until December 30, 2013, more than three (3) months after they were aware of the Default, and well over two months from when it was assigned to counsel.
This does not constitute due diligence. AllState Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D2717c] (finding that a seven-week delay in seeking relief from default judgment was unreasonable); see also Fischer v. Barnett Bank of S. Fla., 511 So.2d 1087 (Fla. 3d DCA 1987) (finding that a five week delay in seeking relief from default judgment was “entirely inexcusable”). It must also be noted that the Defendant was served with the lawsuit on March 7, 2013, and an answer to the Complaint was not filed until December 30, 2013, over nine months later.
The Defendant supports its position to vacate the default by stating that an order entered without notice is a void order, and may be attacked at any time. Metropolitan Dade County v. Curry, 632 So.2d 667 (Fla. 3d DCA 1994).
This court finds Curry distinguishable from the instant case, in that there is no indication whatsoever in Curry that the Appellant delayed for a period of months once they learned of the lack of notice for the hearing on the Motion for Return of Property.
One might easily envision a set of circumstances in which a defense counsel does not get notice pursuant to Rule 2.516, but does receive notice from their client, takes no action for a year, or even five years, then asserts that the order is void. I do not believe the Rule contemplates such a result.
Accordingly, it is hereby,
ORDERED AND ADJUDGED: Defendant’s Motion to Vacate Default Judgment is DENIED.
* * *
