25 Fla. L. Weekly Supp. 837a
Online Reference: FLWSUPP 2509JMATInsurance — Personal injury protection — Default — Vacation — Due diligence — Motion to vacate default and set aside final judgment is denied where insurer was aware of default more than six weeks prior to filing motion to vacate — Further, motion to vacate was not filed under oath or with supporting affidavits and should be summarily denied
DR. SCOTT HEDRICK, D.C., P.A., D/B/A HEDRICK CHIROPRACTIC & NUTRITION (a/a/o Matthews, Jessica), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court in and for Broward County. Case No. 12-11769 COCE 51. November 15, 2017. Kathleen McCarthy, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Peter Weinstein and Amanda Phillips, Cole, Scott and Kissane, P.A., for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO VACATEDEFAULT AND SET ASIDE FINAL JUDGMENT
THIS CAUSE came before the Court on November 2, 2017 upon the motion of the Defendant State Farm Mutual Automobile Insurance Company (“State Farm”) to Vacate Default and Set Aside Final Judgment. Having considered the motion, having heard argument of counsel and being otherwise fully advised, it is
ORDERED that State Farm’s Motion to Vacate Default and Set Aside Final Judgment is DENIED, for the following reasons:
On June 25, 2012, service of process was forwarded to State Farm’s designated agent, notifying State Farm as to the requirement to appear for a Pretrial Conference on August 28, 2012. At the Pretrial Conference, Ava Mahmoudi (FBN 91832) of Bronstein & Carmona, P.A. appeared on behalf of State Farm, agreeing to invoke the Rules of Civil Procedure. On October 22, 2012, after State Farm had failed to file a responsive pleading, Plaintiff moved for entry of a default by the Court, providing a service copy of the motion by e-service upon Ava Mahmoudi at Bronstein & Carmona, service@bronstein-carmona.com.
On May 9, 2014, the Hon. Martin R. Dishowitz entered a default against State Farm. The Default reflects that a copy was provided to Bronstein & Carmona. On July 9, 2014, Plaintiff filed a Motion for Entry of Final Judgment, providing a service copy by e-service upon Ava Mahmoudi at Bronstein & Carmona, service@bronstein-carmona.com. Judge Dishowitz entered a Final Judgment against State Farm on September 9, 2014. The Final Judgment reflects that a copy was provided to State Farm, PIP Demand Notice Unit, P.O. Box 106140 in Atlanta, Georgia.
Plaintiff filed its Motion to Tax Fees and Costs for Final Judgment on September 18, 2014, providing a service copy by e-service upon Ava Mahmoudi, Esq., at Bronstein & Carmona, service@bronstein-carmona.com. The following day, on September 19, 2014, Matt Hellman, P.A., filed its Notice of Appearance of Counsel for State Farm. On October 25, 2014, State Farm filed its unworn Motion to Vacate Default and Set Aside Final Judgment.
In order to prevail on a motion to vacate a final judgment, State Farm must establish that the failure to act in this cause is due to “excusable neglect”; and that it has acted with due diligence in moving to set aside the default within a reasonable time. Credit General Ins. Co. v. Thomas, 515 So.2d 336, 337 (Fla. 3d DCA 1987). In the light most favorable to State Farm, the Court record reflects that State Farm was aware of the default more than 6 weeks prior to the filing of the Motion to Vacate. More particularly, according to paragraph 10 of that motion, State Farm received Judge Dishowitz’ Final Judgment on September 11, 2014, 44 days prior to the filing of the motion. According to the copy of the e-mail from State Farm Claim Representative Ana M. Bustamante, attached as Exhibit “C” to State Farm’s motion, State Farm contacted Attorney Kyle Mixson regarding Judge Dishowitz’ Final Judgment on September 17, 2014, 38 days prior to the filing of the motion.
As recognized by Judge Lee in Valdini & Palmer, P.A. v. High Pressure Irrigation, 17 Fla. L. Weekly Supp. 480a (Broward County, Judge Robert W. Lee, March 12, 2010), and Pompano Spine Center (a/a/o Merny Louis) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 853b (Broward County, Judge Robert W. Lee, January 14, 2015), this is simply not due diligence.1
Additionally, a motion to vacate must be made under oath. Dodrill v. Infe, Inc., 837 So.2d 1187 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D558d]; My Clear View Windshield Repair (a/a/o Patricia White) v. Progressive American Ins. Co., 24 Fla. L. Weekly Supp. 179a (Broward County, Judge Martin R. Dishowitz, May 6, 2016); Pompano Spine Center, supra. Because State Farm did not file its Motion to Vacate under oath or with supporting affidavit(s), the motion should be summarily denied. Accordingly, it is hereby,
ORDERED and ADJUDGED that State Farm’s Motion to Vacate Default and Set Aside Final Judgment is hereby DENIED.
__________________
1 State Farm’s failure to act diligently in seeking relief is further demonstrated by the fact that the motion to vacate was filed more than three years prior to the hearing.
