26 Fla. L. Weekly Supp. 55a
Online Reference: FLWSUPP 2601ABERInsurance — Personal injury protection — Default — Excusable neglect — Due diligence — Motion to vacate default final judgment is denied where affidavit filed in support of motion fails to set forth facts explaining or justifying the mistake or inadvertence that was responsible for 9-month delay between service of process and assignment of case and 5-month delay between entry of default judgment and assignment of case
LANE FAMILY CHIROPRACTIC, INC (a/a/o Abercrombie, Gale), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-05629 COCE 51. March 21, 2018. Kathleen McCarthy, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Madeline Torres, Law Office of George L. Cimballa, III, for Defendant.
ORDER DENYING DEFENDANT’S AMENDED MOTIONTO VACATE DEFAULT FINAL JUDGMENT
THIS CAUSE came before the Court on March 20, 2018 upon the amended motion of the Defendant GEICO General Insurance Company (“GEICO”) to vacate default final judgment. Having considered the motion, having heard argument of counsel and being otherwise fully advised, it is
ORDERED that GEICO’s Amended Motion to Vacate Default and Final Judgment is DENIED, for the following reasons:
On March 29, 2017, Plaintiff filed its Complaint for Declaratory Relief and Breach of Contract against GEICO. On April 12, 2017, the Chief Financial Officer of the State of Florida accepted Service of Process, forwarding a copy by electronic delivery on April 13, 2017 to GEICO’s designated agent. Pursuant to the Notice of Service of Process, GEICO was notified as to the requirement to serve written defenses to the Complaint and to file the original of the defenses with the Clerk of the Court, within twenty (20) days after Service of Process. When GEICO failed to plead or otherwise defend, Plaintiff filed and served its Motion for Entry of Default Final Judgment. On August 16, 2017, this Court entered a Default Final Judgment against GEICO. Five months later, on January 16, 2018, GEICO filed its unverified Motion to Vacate Default, without any supporting affidavit. According to the original motion to vacate, GEICO’s counsel was not notified of the default until January 16, 2018. The motion further asserts that it was never GEICO’s intention to fail to file a response to the Complaint, and that any oversight in neglecting to file a response was a result of mistake, inadvertence and excusable neglect.
On March 14, 2018, GEICO filed its Amended Motion to Vacate Default Final Judgment, attached to which was the Affidavit of Madeline Torres, Esq. According to Ms. Torres’ Affidavit, the case was opened in her office, The Law Office of George L. Cimballa, III — Employees of GEICO (the “Cimballa Firm”) and assigned to her on January 16, 2018. Ms. Torres further avers that upon her review of the case, she discovered that a Motion for Default had been filed on August 8, 2017 and that a Default had been entered on August 18, 2017; and that “due to mistake, inadvertence and excusable neglect, the case was not timely assigned and responses were not timely submitted.”
“Florida has a long-standing policy of liberality in granting motions to set aside default judgments.” Omni Insurance Company v. Hernandez, 9 Fla. L. Weekly Supp. 424a (9th Judicial Circuit (Appellate) 2002), citing North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962). In order to prevail on a motion to vacate a default final judgment, a party must establish that the failure to act is due to “excusable neglect”; and that it has acted with due diligence in moving to set aside the default within a reasonable time. Bequer v. National City Bank, 46 So. 3d 1199 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2485a]; Rosenblatt v. Rosenblatt, 528 So.2d 74 (Fla. 4th DCA 1988).
Excusable neglect occurs “where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.” Bequer, supra.
In order to establish excusable neglect, a party must do more than state that a mistake was made. In Omni Insurance Company, supra, where the defendant’s affidavit contained no explanation other than a vague reference to the claims manager’s workload and a statement that she simply made a mistake, the appellate court found that to be insufficient to meet the burden of proving excusable neglect. In the words of the Court:
Despite the liberal policy toward vacating default judgments, Florida courts require more than a statement that a mistake was made. ‘The requirement that the defendant demonstrate excusable neglect requires more than a conclusionary statement. A party moving to vacate a default must set forth facts explaining or justifying the mistake or inadvertence by affidavit or other sworn statement. Inter-Atlantic Ins. Services, Inc. v. Hernandez, 632 So.2d 1069, 1070 (Fla. 3d DCA 1994) . . . Moreover, the mere failure of the defendant itself to act is not the same as excusable neglect. Goldome v. Davis, 567 So.2d 909 (Fla. 2d DCA 1990).
In Hurley v. Government Employees Insurance Co., 619 So.2d 477 (Fla. 2d DCA 1993), where the affidavits submitted by GEICO failed to explain “what happened to the complaint or suit papers other than admitting that the complaint was received by GEICO . . . and then was lost or misfiled”, the District Court of Appeal concluded that GEICO was grossly negligent and was therefore unable to show excusable neglect in order to set aside a default.
Relying upon Hurley, the Bequer Court reversed the trial court’s order setting aside the default judgment, finding that there was no excusable neglect where the defendant’s affidavits simply outlined the defendant’s policies and procedures concerning responding to lawsuits, but failed to offer any explanation as to what happened that resulted in the failure to respond to the third-party complaint. In the case now before this Court, the Affidavit fails to set forth facts explaining or justifying the mistake or inadvertence. According to GEICO’s original Motion to Vacate Default and Final Judgment, GEICO was served with the Summons and Complaint on April 12, 2017.
However, no explanation and no facts are offered as to when GEICO discovered the Complaint and the Default Final Judgment that had been entered in August of 2017; no explanation and no facts are offered as to the identity of the person at GEICO who assigned the case to the legal department; no explanation and no facts are offered as to the reason for the delay of approximately 9 months from the date of service of process until the assignment of this case; and most significantly, no explanation and no facts are offered as to the reason for the delay of approximately 5 months from the entry of the Default Final Judgment until the assignment of this case.
In order to establish the requisite excusable neglect and due diligence in seeking to set aside the August 16, 2017 Default Final Judgment, it was incumbent upon GEICO to submit an affidavit that offered more than simply stating that a mistake was made. Bequer, supra; Hurley, supra; Omni Insurance Company, supra. GEICO failed to meet its burden of establishing excusable neglect and due diligence in seeking to set aside the Default Final Judgment.
Accordingly, it is
ORDERED and ADJUDGED that Geico’s Amended Motion to Vacate Default Final Judgment is hereby DENIED.
