25 Fla. L. Weekly Supp. 906b
Online Reference: FLWSUPP 2510MGARInsurance — Personal injury protection — Arbitration — Confirmation of award — Where parties did not request trial de novo within deadline for such request, trial court must enter judgment in accordance with arbitrator’s decision — Insurer has failed to make showing of excusable neglect sufficient to relieve it from consequences of failure to timely request trial de novo where affidavit of legal assistant to insurer’s counsel states that assistant did not receive notice of award to forward to counsel, but court’s e-filing portal indicates that arbitrator’s notice of filing award was e-served on insurer’s counsel at her email address
SOUTH BROWARD HOSPITAL DISTRICT, D/B/A MEMORIAL HOSPITAL MIRAMAR, a Florida Corp. (a/a/o Garcia, Minerva), Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17 1544 COCE 50. December 5, 2017. Mardi Levey Cohen, Judge. Counsel: Robert Goldman, Florida Advocates, Dania Beach, for Plaintiff. Madeline Torres, Law Office of George L. Cimballa, III, Plantation, for Defendant.
ORDER UNSEALING ARBITRATION DECISION,AWARDING FINAL JUDGMENT IN FAVOR OFPLAINTIFF, DENYING DEFENDANT’S MOTION FORTRIAL DE NOVO AND DENYING DEFENDANT’SMOTION FOR RELIEF FROM ADMISSIONS
THIS CAUSE came before the Court on December 5, 2017 upon the Plaintiff’s Motion to Unseal Arbitration Decision and Motion for entry of Final Judgment, Defendant’s Motion for Trial De Novo and Defendant’s Motion for Relief from Admissions. Having considered the motions and legal authorities cited therein, having heard argument of counsel and being otherwise fully advised, the Court finds as follows:
This is a suit for penalty, postage and interest for Personal Injury Protection (“PIP”) benefits alleged to have been untimely paid. More particularly, Plaintiff asserts that it submitted its bill electronically to the Defendant on February 10, 2014, for which Defendant did not make payment until July 16, 2014.1
By Order dated April 8, 2017, the Court entered an Order Referring Case to Arbitration, as authorized by Sec. 44.103, Fla. Stat. (2017) and Rule 1.820, Fla.R.Civ.P. The arbitration was conducted on July 27, 2017. On July 29, 2017, the Arbitrator served his Notice of Filing Arbitration Award and Findings of Fact/Rulings, which included the factual findings that Defendant had received Plaintiff’s bill on February 10, 2014, and that Defendant’s July 16, 2014 check in payment of that bill was not timely made. According to the Florida Courts E-Filing Portal’s July 29, 2017 automatically generated email message, the E-service recipients selected for service of the Arbitrator’s Notice of Filing Arbitration Award included Madeline Torres, Esq., at mtorres@geico.com and ftlpipgeico@geico.com.2
On October 10, 2017, Plaintiff filed its Motion to Unseal Arbitration Decision and Motion for Entry of Final Judgment. On November 10, 2017, 104 days after the Notice of Filing Arbitration Award and 30 days after Plaintiff’s Motion to Unseal Arbitration Decision, Defendant filed its Motion for Trial De Novo. According to Defendant’s motion, defense counsel claims to have not received the July 29, 2017 decision from the arbitrator and was only recently made aware of the decision.
On November 20, 2017, Defendant noticed the filing of the Affidavit of Gil Hernandez. In that affidavit, Mr. Hernandez asserts that he is a legal assistant for Geico Staff Counsel; that he is assigned to Madeline Torres, Esq.; and that he did not receive an arbitration order related to this case and therefore was unable to forward the order to Ms. Torres.
Sec. 44.103(5), Fla. Stat. (2017) provides that “an arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court” and that “if no request for trial de novo is made within the time provided, the decision shall be referred to the presiding judge in the case who shall enter such orders and judgments as are required to carry out the terms of the decision.” Rule 1.820(h), Fla.R.Civ.P. establishes the time for filing a motion for trial as “within 20 days of service on the parties of the decision.”
In Johnson v. Levine, 736 So.2d 1235 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D1456a], the Fourth District Court of Appeal held that once a party involved in non-binding arbitration under Sec. 44.103 fails to request a trial de novo, by the express terms of the statute the award becomes final and binding and that “a trial court has a mandatory duty to enforce final and binding awards by, among other things, entering such judgments as may be necessary and proper to enforce a final award made by the arbitrator.” See also Klein v. Howard, 600 So.2d 511 (Fla. 4th DCA 1992) (“upon the failure to move for a trial de novo within 20 days of the service of an arbitration award . . . the trial court is required to enforce the award and lacks discretion to do otherwise”).3
A judgment entered in accordance with the provision or Rule 1.820(h) may be set aside even when a party fails to timely move for trial de novo if the moving party set forth facts that constitute excusable neglect. Preferred Mut. Ins. Co. v. Davis, 629 So.2d 259 (Fla. 4th DCA 1993). The issue in that case was whether a judgment, mandatorily entered upon the arbitrator’s award when a timely motion for trial de novo was not filed, may be vacated and a trial de novo granted upon a proper showing that the failure to timely file a motion for trial de novo was due to excusable neglect.
However, mere inadvertence or mistake of counsel or ignorance of the rules does not constitute excusable neglect. Grip Development v. Coldwell Banker Residential Real Estate, 25 Fla. L. Weekly D2240b (Fla. 4th DCA 2000). As noted by Judge Lee in Center for Bone & Joint Surgery of the Palm Beaches v. The First Liberty Ins. Corp., 24 Fla. L. Weekly Supp. 748a, (Broward Cty., Oct. 24, 2016), “attorneys are expected to know what the rules are, and they cannot claim their neglect is excusable when they act contrary to the rules . . . . The 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. . . . . a defendant’s failure to understand the legal consequence of his inaction is not excusable neglect.”
In Suntrust Bank v. Hodges, 12 So.3d 1278 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D1470a], where the arbitrator served his decision in favor of Hodges on May 15, 2008, and Suntrust failed to move for a trial de novo until 21 days after the arbitrator’s decision was filed, the trial court entered a final judgment in favor of Hodges. The trial court denied Suntrust’s motion for relief from judgment, finding that Sun Trust counsel’s failure to place the motion for trial de novo on the firm’s tickler system, did not constitute excusable neglect sufficient to justify relief from the judgment. Although the appellate court dismissed the case for lack of jurisdiction, Judge Hazouri concluded that the trial court did not err in denying Suntrust’s motion to set aside the judgment, as there was a failure on the part of Suntrust to demonstrate excusable neglect.
In C.V. Alexander, Jr. v. Quail Pointe II Condominium, 170 So.3d 817 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D600a], the 5th District Court of Appeal rejected the argument that an attorneys’ lack of familiarity with nonbinding arbitration constituted excusable neglect, citing Carter v. Lake County, 840 So.2d 1153, 1158 n. 6 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D817e] (“Generally, the courts do not find excusable neglect in the attorney’s misunderstanding or ignorance of the law or rules of procedure”); Spencer v. Barrow, 752 So.2d 135, 138 (Fla. 2nd DCA 2000) [25 Fla. L. Weekly D615a] (“An attorney’s confusion or lack of knowledge as to time requirements and deadlines imposed by the rules of procedure does not constitute excusable neglect”).
In the case now before this Court, Defendant has failed to make a satisfactory showing of excusable neglect. The Florida Courts E-Filing Portal’s July 29, 2017 automatically generated email message shows that the arbitrator’s Notice of Filing Arbitration Award was E-served upon Defendant’s counsel, Madeline Torres, Esq., at mtorres@geico.com and ftlpipgeico@geico.com — e-mail addresses that had been included in Defendant’s Answer to the Complaint as its primary and secondary e-mail addresses for service in this proceeding.4
The Affidavit of Gil Hernandez filed by Defendant only states that Mr. Hernandez is the legal assistant assigned to Madeline Torres, Esq.; that he did not receive an arbitration order related to this case and therefore was unable to forward the order to Ms. Torres. However, Mr. Hernandez’ affidavit fails to state that it was his responsibility to open e-mails addressed to mtorres@geico.com and ftlpipgeico@geico.com. To the contrary, it appears that e-mails addressed to mtorres@geico.com are received by Madeline Torres, Esq., and not by Gil Hernandez. 5
Defendant failed to comply with Sec. 44.103(5), Fla. Stat. (2017) and Rule 1.820(h), Fla.R.Civ.P., having failed to file a motion for a trial de novo until 104 days after the arbitrator’s July 29, 2017 service upon the parties. Defendant has failed to show that the failure to timely move for a trial de novo was as the result of excusable neglect. Accordingly, as no motion for trial de novo was timely served, this court must enforce the decision of the arbitrator and has no discretion otherwise.
As a result, it is ORDERED and ADJUDGED that Plaintiff’s Motion to Unseal Arbitration Decision and Motion for entry of Final Judgment is GRANTED, Defendant’s tardy Motion for Trial De Novo is DENIED, and Defendant’s Motion for Relief from Admissions is DENIED.
The Plaintiff shall recover from the Defendant, Geico Indemnity Company, statutory penalty, interest and postage in the amount of $25.58, which sum shall hereafter bear interest at the statutory rate from the date of the signing of this order. The Plaintiff is also entitled to an award of attorney’s fees and costs, for which the Court reserves jurisdiction to determine.
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1Pursuant to Sec. 627.736(4)(b), Fla. Stat. (2014), PIP benefits are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.
2According to Defendant’s Answer and Affirmative Defenses filed March 22, 2017, Defendant designated its service email address in this matter as ftlpipgeico@,geico.com and its secondary email address as mtorres@geico.corm.
3See also, CJ Family Chiropractic Center, LLC a/a/o Nicodhia Paul v. Geico Indemnity Co. (Broward County, Judge Florence Taylor Banner, October 4, 2017) [25 Fla. L. Weekly Supp. 666a] and Orthopedic Center of South Florida, P.A. a/a/o Barbara Fernandez v. United Automobile Ins. Co. (Broward County, Judge Daniel J. Kanner, June 17, 2016) [24 Fla. L. Weekly Supp. 462a] (“If no motion for trial [de novo] is timely served, the trial court must enforce the decision of the arbitrator and has no discretion otherwise”)
4Pursuant to Rule 2.516(b)(1), Fla. R. Jud. Admin., “All documents required or permitted to be served on another party must be served by e-mail . . . A filer of an electronic document has complied with this subdivision if the Florida Courts e-filing Portal . . . served the document by e-mail . . . . Upon appearing in a proceeding, an attorney must designate a primary e-mail address and may designate no more than two secondary e-mail addresses . . . thereafter service must be directed to all designated e-mail addresses in that proceeding.
5At the hearing, Plaintiff’s counsel produced a November 29, 2017 e-mail to mtorres@geico.com, to which Madeline Torres responded on November 30, 2017, with a cc to Gil Hernandez.
