24 Fla. L. Weekly Supp. 748a
Online Reference: FLWSUPP 2409HARRInsurance — Small claims — Default — Excusable neglect — Insurer has failed to establish excusable neglect warranting vacation of default entered when it failed to appear at pretrial conference in small claims case where, although parties had agreement to invoke rules of civil procedure and avoid appearance at pretrial conference, court had denied motion to invoke rules and waive appearance, and insurer failed to submit fully compliant waiver of appearance at pretrial conference under rule 7.090(e)
CENTER FOR BONE & JOINT SURGERY OF THE PALM BEACHES (a/a/o Goerdeen Harripersaud), Plaintiff, vs. THE FIRST LIBERTY INSURANCE CORPORATION, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-16582 COCE (53). October 24, 2016. Robert W. Lee, Judge. Counsel: Tara L. Kopp, West Palm Beach, for Plaintiff. Antonio J. Rodriguez, Miami, for Defendant.ORDER DENYING DEFENDANT’SMOTION TO SET ASIDE DEFAULT
THIS CAUSE came before the Court for consideration of the Defendant’s Motion to Set Aside Default Judgment and in Opposition to Plaintiff’s Motion for Final Default Judgment,1 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:
Background. This case presents the results of legal counsel’s fundamental misunderstanding of the Small Claims Rules, and the effect of such misunderstanding on a properly entered default. Pursuant to Rule 7.170(a), the Court entered its Default against Defendant on September 19, 2016 for failure of the Defendant to appear at a small claims pretrial conference. In its Motion, the Defendant concedes it learned of the default, but not until it received a copy of the Plaintiff’s Motion for Final Default Judgment served three days later on September 22, 2016.
Conclusions of Law. The primary difficulty facing the Defendant in this case is that its purported neglect, under its own facts, is simply not “excusable.”
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 moved with due diligence in attempting to set aside the default. Credit General Ins. Co. v. Thomas, 515 So.2d 336, 337 (Fla. 3d DCA 1987). The Court notes that even had the Defendant proffered a meritorious defense, the allegations set forth in the Motion simply do not establish excusable neglect.
Under the Small Claims Rules, both parties must attend a pretrial conference, unless excused by the Court. Unlike the Rules of Civil Procedure, failure to appear at a small claims pretrial conference results in a court default. Rule 7.170(a). The Defendant, however, claims that it believed that it had an agreement with Plaintiff to invoke the rules of civil procedure in this case, thus avoiding the pretrial conference. However, it is the Court, and not the parties, who makes the decision whether the rules of civil procedure will be invoked. See Rule 7.020(c) (“the court may order”) (emphasis added). See also Arafat v. U-Haul Center Margate, 82 So.3d 903, 905 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1347a]; Hollywood Diagnostics Center, Inc. v. United Automobile Ins. Co., 18 Fla. L. Weekly Supp. 102a (Broward Cty. Ct. 2010); Chessher v. State Farm Mutual Automobile Ins. Co., 8 Fla. L. Weekly Supp. 245a (Escambia Cty. Ct. 2001). Indeed, the parties’ request to invoke the rules and waive appearance was rejected by the Court when the parties uploaded a proposed order into the Court’s e-order system on September 15, 2016 at 6:10 p.m., which received a response from the Court that it rejected the proposed order because the “case appears to have no ties to Broward; parties must appear at PTC [pretrial conference].”
Moreover, short of moving for a continuance, the only other means to avoid appearance at a small claims pretrial conference is to comply with the Small Claims Rules and submit a fully compliant “Waiver of Appearance at Pretrial Conference.” Rule 7.090(e). This the parties did not do.
Defendant’s belief that it can waive its appearance and invoke the rules by agreement without court approval, and thus avoid appearing at a small claims pretrial conference, is simply not excusable neglect under Florida law. Attorneys are expected to know what the rules are, and they cannot claim their neglect is excusable when they act contrary to the rules. See Geer v. Jacobsen, 880 So.2d 717, 720-21 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1102a] (“[t]he attorney’s errors, even if constituting mistakes of law, tactical errors, or judgment mistakes, do not constitute excusable neglect. Similarly, an attorney’s inadvertence or ignorance of the rules does not constitute excusable neglect.”); Joe-Lin, Inc. v. LRG Restaurant Group, Inc., 696 So.2d 539, 541 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D1701a] (“a defendant’s failure to understand the legal consequences of his inaction is not excusable neglect”). Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion to Vacate Default is DENIED.
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1This portion of the Defendant’s Motion is not ripe, as no final judgment has yet been entered. However, even if it were, because of the Court’s ruling on the default, the judgment would not have been set aside.
