24 Fla. L. Weekly Supp. 179a
Online Reference: FLWSUPP 2402WHITInsurance — Automobile — Windshield repair — Default — Vacation — Insurer’s motion to vacate final default judgment is denied where motion was not made under oath — Moreover, insurer did not act diligently in seeking relief where motion was submitted six months after entry of judgment
MY CLEAR VIEW WINDSHIELD REPAIR INC as Assignee of PATRICIA WHITE, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-019324-COCE (51). May 6, 2016. Honorable Martin R. Dishowitz, Judge. Counsel: Andrew Davis-Henrichs and Emilio Stillo, Pliego & Stillo, P.A., Davie, for Plaintiff. Brooke Beebe, Cole, Scott & Kissane, P.A., Bonita Springs, for Defendant.
ORDER DENYING DEFENDANT’S AMENDEDMOTION TO SET ASIDE DEFAULT AND VACATEFINAL DEFAULT JUDGMENT WITH INCORPORATEDMEMORANDUM OF LAW
THIS CAUSE came before the Court for consideration, on April 25, 2016, on the Defendant’s Amended Motion to Set Aside Default and Vacate Final Default Judgment with incorporated memorandum of law, and the Court’s having reviewed the Motion and relevant legal authorities; having made a thorough review of the Court file; and having been sufficiently advised in the premises, the Court finds as follows:
Findings of fact: On or about April 22, 2015, the Defendant was served with Plaintiff’s complaint. The Defendant was required to appear at the Pretrial Conference on June 16, 2015. On June 16, 2015, the Court entered a default for the Defendant’s failure to appear. On June 22, 2015, the Plaintiff filed and served to the Defendant, Plaintiff’s Motion to Enter Default Final Judgment. On July 10, 2015, the Defendant’s counsel filed a notice of appearance, notice to invoke appraisal and motion to dismiss.
On August 6, 2015, the Court entered a default final judgment in favor of the Plaintiff and reserved jurisdiction for the determination of reasonable attorneys’ fees, costs, and interest. On August 10, 2015, the Plaintiff filed and served to Defendant a Motion to Tax Attorneys’ Fees and Costs wherein a copy of the final judgment was attached.
On August 10, 2015, the Defendant filed a motion to vacate default and same was set for hearing on November 23, 2015. On the day of the hearing, November 23, 2015, the Defendant filed an answer and affirmative defenses in support of Defendant’s assertion that a meritorious defense had been asserted. Due to the timing of Defendant’s filing and Plaintiff’s lack of notice, the motion was continued and rescheduled to be heard on February 3, 2016. On the eve of the hearing, on February 2, 2016, the Defendant filed a deposition transcript from another court case, which Defendant intended to rely upon to support its showing of a meritorious defense. Additionally, on February 2, 2016, the Defendant filed an amended motion to set aside default and vacate final default judgment with incorporated memorandum of law, which Defendant intended to argue at the February 3, 2016 hearing. Due to Defendant’s late filings and Plaintiff’s lack of notice, the hearing was continued and rescheduled again for April 25, 2016.
On April 25, 2016, the Court heard argument on Defendant’s amended motion to set aside default and vacate final default judgment with incorporated memorandum of law.
Conclusions of Law: The Court finds the Defendant is not entitled to the relief it is seeking. To prevail on a motion to vacate, the Defendant must establish that the failure to act in this case is due to “excusable neglect”; and that Defendant has acted with due diligence in moving to set aside the default final judgment within a reasonable time. See Gibson Trust, Inc. v. Office of the Atty. Gen., 883 So.2d 379 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D2194a]. Further, a motion to vacate must be made under oath. See Dodrill v. Infe, Inc., 837 So.2d 1187 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D558d]. To date, the Defendant has not furnished any sworn testimony explaining why it took until February 2, 2016 to file a motion to vacate the final judgment that was entered on August 6, 2015.
Furthermore, even if the Defendant properly submitted its motion to vacate final default judgment under oath, it would still not be entitled to relief, because Defendant did not act diligently in seeking relief. See Pompano Spine Cntr., LLC (a/a/o Merny Louis) v. State Farm Mutual Auto. Ins. Co., 22 Fla. L. Weekly Supp. 853b (Broward County Ct. 2015)(Lee, J.) citing Bayview Tower Condominium Association, Inc. v. Schweizer, 475 So.2d 982, 983 (Fla. 3d. DCA 1985)(holding a delay of one month after insurer was informed of default judgment before moving to vacate default showed a lack of due diligence in seeking relief and was fatal to motion to vacate.).
Accordingly it is hereby,
ORDERED and ADJUDGED that the Defendant’s Amended Motion to Set Aside Default and Vacate Final Default Judgment is hereby DENIED.
