28 Fla. L. Weekly Supp. 355a
Online Reference: FLWSUPP 2804ICON
Insurance — Default — Vacation — Answer which was not filed until after 4:00 p.m. not basis for vacating order granting default which was entered earlier that same day — Rule 1.500 allowed court to enter default where defendant failed to serve answer within 20 days and further provides that party may not plead or otherwise defend action after court has entered default — Moreover, defendant did not establish excusable neglect or due diligence
ICONIC IMAGING INC., Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COSO19009342, Division 60. May 22, 2020. Michael Davis, Judge. Counsel: Vincent J Rutigliano, Rosenberg & Rosenberg, P.A., Hollywood, for Plaintiff. Jeffrey C. Hagans , for Defendant.
ORDER DENYING DEFENDANT’S MOTIONTO VACATE ORDER GRANTING DEFAULT
This cause having come before the Court on Defendant’s Motion to Vacate Order Granting Default, the Court having heard argument of the parties, and being otherwise advised in the premises it is hereby ORDERED AND ADJUDGED, as follows:
The Defendant was served with the Statement of Claim on August 5, 2019. On September 4, 2019 the Court entered an order, pursuant to the stipulation of the parties, to invoke the Rules of Civil Procedure and for the Defendant to file a responsive pleading by September 24, 2019 or suffer default without further notice or hearing.
The Court, in response to Plaintiff’s Motion for Default, entered a Default against the Defendant at 10:42 a.m. on October 10, 2019. The Defendant’s Answer was not served or filed until 4:08 p.m. on October 10, 2019. The Default was entered before the Answer was filed or served.
Pursuant to Florida Rule of Civil Procedure 1.500 the Court properly entered the Default. Defendant’s arguments that the Answer was filed on the same day that the Default was entered and that the Default was not docketed by the clerk until after the Answer was served have no merit. Florida Rule of Civil Procedure 1.140 requires that an Answer be served within 20 days. Florida Rule of Civil Procedure 1.500(b) allows the Court to enter a Default if a “party has failed to plead or otherwise defend as provided by these rules . . . or any order of court.”
Florida Rule of Civil Procedure 1.500(c) further provides that a party may not plead or otherwise defend an action after the Court has entered a Default. When the Court entered the Default on October 10, 2019 at 10:42 a.m. the Defendant had not served the Plaintiff with an Answer.
In addition to and notwithstanding the foregoing, the Defendant did not meet their obligations under Florida Rule of Civil Procedure 1.540(b) to vacate a Default. The Defendant did not establish excusable neglect or due diligence. The Defendant presented no sworn testimony and did not move to vacate the Default with due diligence.
Based on the foregoing the Defendant’s Motion to Vacate Order Granting Default is hereby Denied.
