27 Fla. L. Weekly Supp. 422a
Online Reference: FLWSUPP 2704CASHInsurance — Default — Vacation — Where insurer alleged that it failed to comply with order requiring response to complaint because deadline was not properly calendared due to “human error and administrative oversight” but failed to set forth facts explaining or justifying mistake or inadvertence, insurer failed to establish excusable neglect — Further, where 6 months elapsed between filing second motion to vacate default and hearing on motion, insurer has not established due diligence in seeking to set aside default — Motion to vacate is denied
ACCIDENT RECOVERY CENTERS, INC. (a/a/o Casha, Heather 2), Plaintiff, v. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 19th Judicial Circuit in and for St. Lucie County. Case No. 2018-SC-001816. May 24, 2019. Edmond Alonzo, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Jenna Mitchell, Carabotta Steakley, PLLC, for Defendant.
ORDER DENYING DEFENDANT’SSECOND AMENDED MOTION TO VACATE DEFAULT
THIS CAUSE came before the Court on May 21, 2019 upon the second amended motion of the Defendant Star Casualty Insurance Company (“Star Casualty”) to vacate the Court’s October 12, 2018 Order of Default. Having considered the motion and the affidavits filed in support, having heard argument of counsel and being otherwise fully advised, it is
ORDERED that Defendant’s Second Amended Motion to Vacate Default is DENIED, for the following reasons:
On May 25, 2018, Star Casualty was served with the Summons and Complaint. On July 16, 2018, this Court entered an Order Invoking Rules of Civil Procedure, requiring that Star Casualty file a response to Plaintiff’s Complaint within 30 days (August 15, 2018). When Star Casualty failed to respond as required by the July 16, 2018 Order, on October 5, 2018 Plaintiff filed and served its Motion for Entry of Default by the Court. On October 12, 2018, this Court entered a Default against Star Casualty. On November 30, 2018, Defendant filed its Second Amended Motion to Vacate the Order of Default, in support of which Defendant filed the affidavits of Seth Masson, Esq. and Vilma Rivera. According to those affidavits, counsel for Star Casualty failed to comply with the Court’s July 26, 2018 Order “due to human error and administrative oversight” and the failure to properly calendar the August 15, 2018 deadline to respond to the Complaint.
Florida has a long-standing policy of liberality in granting motions to set aside defaults. 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, 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).
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 affidavits of Seth Masson, Esq. and Vilma Rivera fail to set forth facts explaining or justifying the mistake or inadvertence, and are simply conclusory in nature. No explanation and no facts are offered as to the identity of the person who was charged with the responsibility of delegating the task of calendaring the deadline to respond to the Complaint. No explanation and no facts are offered as to the identity of the person who was charged with the responsibility of calendaring the August 25, 2018 deadline to respond to the Complaint. No explanation and no facts are offered as to whether calendaring instructions were given and not carried out, or whether instructions were simply not given.
In order to establish the requisite excusable neglect and due diligence in seeking to set aside the October 12, 2018 Default, it was incumbent upon Star Casualty to submit an affidavit that offered more than simply stating that the deadline to respond to the Complaint was not properly calendared “due to human error and administrative oversight”. Bequer, supra; Hurley, supra; Omni Insurance Company, supra.
Moreover, there was a delay of approximately 6 months from the filing of the Second Amended Motion to Vacate Default and supporting affidavits until the matter was heard by this Court. Counsel for Defendant offered the “Holidays” immediately following the filing of the motion, as well as, the stipulated substitution of Counsel for Defendant having appeared in the case on March 4, 2019 as explanations for the delay. This Court finds those explanations to be insufficient.
Star Casualty failed to meet its burden of establishing excusable neglect and due diligence in seeking to set aside the Default.
Accordingly, it is
ORDERED and ADJUDGED that Star Casualty’s Second Amended Motion to Vacate Default is hereby DENIED.
