28 Fla. L. Weekly Supp. 342b
Online Reference: FLWSUPP 2804WILS
Insurance — Personal injury protection — Default — Vacation — Excusable neglect — Motion to vacate default is denied — Insurer offered no explanation for its failure to respond to six items of correspondence regarding suit mailed to it by medical provider after complaint was served and its failure to appear for properly noticed hearing
PHYSICIANS GROUP, L.L.C., a/a/o Fredrick Wilson, Plaintiff, v. CENTURY-NATIONAL INSURANCE COMPANY, a foreign profit corporation, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2019 CC 003453 NC. May 29, 2020. Erika Quartermaine, Judge. Counsel: Nicholas A. Chaipetta, Marten | Chiapetta, Lake Worth, for Plaintiff. Cameron J. Ringo, McFarlane Dolan & Prince, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO VACATE DEFAULT ANDDEFAULT FINAL JUDGMENT
THIS CAUSE having come before the Court for hearing on May 13, 2020 upon Defendant’s Motion to Vacate Default and Default Final Judgment(s) and the Court, having reviewed the motions, the Court file, the case law presented, and having heard argument of counsel and being otherwise fully advised in the premises, the Court makes the following findings of fact and conclusions of law:
BACKGROUND
1. The Plaintiff filed a one count breach of contract action against the Defendant seeking unpaid Personal Injury Protection benefits on June 14, 2019. [D.E. 1].
2. The Defendant was served a copy of the Summons and Complaint on August 19, 2019. [D.E. 4].
3. On October 17, 2019, the Plaintiff filed and served the Defendant its Motion for Default, via U.S. mail. [D.E. 24].
4. A clerk’s default was entered against the Defendant on October 18, 2019. [D.E. 8].
5. On October 22, 2019, the Plaintiff filed and served the Defendant its Motion to Tax Attorney’s Fees and Costs, via U.S. mail. [D.E. 9].
6. The Plaintiff filed and mailed to the Defendant, its Motion for Entry of Final Judgment along with an affidavit of indebtedness on October 31, 2019. [D.E. 10, 24].
7. On November 04, 2019 this Court entered final judgment in favor of Plaintiff. The Judgment was recorded on November 05, 2019. [D.E. 12]. The Plaintiff mailed a copy of the Judgment to the Defendant [D.E. 24].
8. On November 12, 2019, the Plaintiff file and served the Defendant, via U.S. Mail, with a Notice of Hearing on Plaintiff’s Motion to Tax. [D.E. 24]
9. This Court held a properly noticed hearing Plaintiff’s Motion to Tax Attorney’s Fees and Costs on December 02, 2019. [D.E. 17]. On that same day, the Court entered final judgment as to fees and costs in Plaintiff’s favor. [D.E. 18].
10. On December 20, 2019, Plaintiff’s counsel’s office sent the Defendant, via certified mail, a letter requesting satisfaction of the judgments. [D.E 24].
11. On January 07, 2020, sixty-four (64) days after the November Final Judgment was entered, the Defendant filed its Motion to Vacate Default. [D.E 20]. The Defendant filed its Affidavit of Michael Anderson in support of its Motion to Vacate Default on January 14, 2020.
12. The Defendant filed its Answer and Affirmative Defenses on March 02, 2020.[D.E. 28]. Shortly thereafter, on March 24, 2020 the Defendant filed an Amended Affidavit of Michael Anderson. [D.E. 32].
13. On May 13, 2020, this Court heard arguments on the Defendant’s Motion to Vacate Default.
14. The Defendant argued that its affiant, Michael Anderson, first discovered the default on January 02, 2020, and that he misfiled or inadvertently failed to calendar the appropriate deadlines. The Defendant also argued that the file was assigned to a litigation adjuster who failed to follow instructions and refer to the case to outside counsel, and as result of that failure has been terminated by the Defendant.
15. The Plaintiff argued that in addition to service of summons and complaint, the Defendant was served with documents on at least six (6) different occasions. In support of its contention, the Plaintiff filed an affidavit of Katrin Saxenmeyer. [D.E. 24]. The Plaintiff further argued that the Defendant’s Amended Affidavit of Michael Anderson is conclusory and it fails to address what happened to the substantial correspondence sent to the Defendant between October 17, 2019 and December 20, 2019. The Plaintiff also alleged that the Defendant failed to appear for a properly noticed hearing, which was not explained in the Defendant’s Amended Affidavit.
CONCLUSIONS OF LAW
In Florida, there is a strong preference for lawsuits to be determined on the merits and courts should liberally set aside defaults under appropriate circumstances. Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1102a]. However, it was incumbent upon the Defendant to demonstrate excusable neglect, a meritorious defense, and due diligence. See id.
Under the circumstances of this case, vacating the default would not be appropriate. Although the Defendant brought forth sworn testimony, that testimony fell woefully short of short of establishing excusable neglect. See, e.g., Hurley v. Gov’t Employees Ins. Co., 619 So. 2d 477, 479 (Fla. 2d DCA 1993).
In Hurley, Geico sought to set aside a default and default judgment. In analyzing the case, the Second District Court of Appeals found that Geico was grossly negligent for not responding to a “continuing shower of legal pleadings.” The court went on to state that “neither [affidavit filed by Geico] could 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 court held that Geico was grossly negligent, and therefore, unable to prove excusable neglect.
In Bequer v. Nat’l City Bank, 46 So. 3d 1199, 1202 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2485a], the Fourth District Court of Appeals relying on Hurley, found that the appellee failed to explain what happened to correspondence advising of default. The court then stated:
While appellee’s inaction to respond to the complaint alone might have constituted excusable neglect given the system appellees had in place, the failure to respond to the complaint, when coupled with the correspondence sent on three different occasions, constitutes gross negligence. Missing the complaint and the correspondence is not evidence of a “system gone awry” but rather a defective system altogether.
Here, the Defendant offered no explanation as to what happened to each document mailed to it between October 17, 2019 through December 20, 2019. The Defendant also failed explain why it did not attend a properly noticed hearing on December 02, 2019. On the other hand, in addition to the certificates of services on the documents, the Plaintiff provided sufficient evidence to establish a presumption that the documents were received. See Brown v. Giffen Industry., Inc., 281 So. 2d 897, 900 (Fla. 1973)(on rehearing)(there is a rebuttable presumption “that mail properly addressed, stamped and mailed was received by the addressee.”); Brake v. State, Unemployment Appeals Comm’n, 473 So.2d 774 (Fla. 3d DCA 1985)(testimony regarding customary office practice is sufficient to trigger the presumption in favor of mailing).
The Court finds the Amended Affidavit of Michael Anderson fails to adequately explain the failure to respond to six (6) correspondences sent after the service of the Complaint. See Hurley, 619 So. 2d at 479. However, even if the six (6) subsequent pieces of correspondence were the continuing error of one now-terminated employee, then the Defendant’s motion must still be denied because a system with no check or balance is defective. See Bequer, 46 So. 3d at 1202.
Accordingly, it is hereupon ORDERED and ADJUDGED, as follows:
1. The Defendant’s Motion to Vacate Default is DENIED;
2. The Court reserves with respect to entitlement to costs and fees related to this motion.
