8 Fla. L. Weekly Supp. 95a
Insurance — Uninsured motorist — Insured’s action against insurer — Insurer’s motion to set aside judgment and motion to conform judgment to policy limits denied — Civil procedure — Service of process — Insurer abandoned its argument that default and final judgment were void as matter of law because process was served on insurance commissioner — Default — Record refutes insurer’s claim that it was not provided notice of application for default — Even if clerk’s default were vacated, final judgment, which was entered after trial on issues of liability and damages, would not be affected — Insurer received adequate notice of trial, and its failure to appear and defend itself was direct result of its own actions — Relief from judgment — Fraud — Actions of plaintiff’s counsel in requesting court to enter judgment in excess of policy limits does not constitute fraud, misrepresentation, or misconduct which would warrant relief from judgment under rule 1.540(b) — Defendant not entitled to relief from judgment based on mistake or inadvertence — Insurer’s actions in instant case constituted gross negligence barring it from relief
Reversed and remanded at 27 Fla. L. Weekly D44a (On Motion for Rehearing at 27 Fla. L. Weekly D1149a)
JILL HORKHEIMER, Plaintiff, v. STATE FARM AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 99-7426(09). November 3, 2000. Robert Lance Andrews, Judge.ORDER
THIS CAUSE having come before the Court on the Defendant’s Motion to Conform Judgment to Insurance Policy Limits and Motion to Quash Service of Process, to Vacate Default Judgment and to Set Aside Final Judgment, and the Court having considered same, having heard argument of counsel, and being otherwise duly advised in premises, finds and decides as follows:
The instant motion arises out of a breach of contract action for uninsured motorist (UM) benefits, pursuant to Plaintiff’s policy of insurance with State Farm. A jury found in favor of the Plaintiff, after trial, and awarded $1,180,242.46, and judgment was entered. The Defendant filed an emergency motion to stay judgment on August 2000, after learning that the Plaintiff had requested the Insurance Commissioner for the State of Florida to forbid State Farm from doing business in this State, for failure to satisfy the judgment for more than 60 days. This Court granted the stay, provided the Defendant post a bond. At that time, this Court also advised the parties that it might be in their best interest to attempt to mediate this matter. Mediation was unsuccessful and this Court held a hearing on the Defendant’s Motion on October 25, 2000.
The series of events leading up to this point are set forth in chronological order, as follows:
On or about October 30, 1997, the Plaintiff, Jill Horkheimer was involved in a motor vehicle accident with one Esther Reiter. Ms. Reiter, who was at fault in said accident, possessed an insurance policy which was underinsured to fully compensate Ms. Horkheimer. The Defendant, State Farm, provided underinsured/uninsured motorist protection to the Plaintiff, Ms. Horkheimer.
April 30, 1999, a Complaint was filed against State Farm Mutual Insurance Company.
May 6, 1999, said Complaint was served on State Farm.1
May 17, 1999, State Farm adjuster, Frank Toomey, wrote to the attorney for the Plaintiff, confirming a 30 day extension to file an answer to the lawsuit which was received in the office the week prior.
June 23, 1999, the attorney for the Plaintiff wrote to Frank Toomey, State Farm adjuster, attaching a copy of letter forwarding records to Steven Oliver of State Farm; and requesting Mr. Toomey to respond to the complaint within the next 10 days.
August 23, 1999, the Plaintiff submitted a Proposal for Settlement, sent to Steven Oliver, State Farm adjuster, via fax and regular mail.
September 1, 1999, Frank Toomey, adjuster for State Farm, wrote to Plaintiff’s attorney requesting information to complete their evaluation.
September 16, 1999, Plaintiff’s counsel wrote to Frank Toomey, attaching copies of medical bills and records and requesting that State Farm remit the policy limits in this matter.
September 21, 1999, counsel for Plaintiff faxed State Farm, giving authority to review PIP file.
September 22, 1999, Frank Toomey of State Farm wrote to Plaintiff’s counsel, confirming the grant of an indefinite extension for State Farm to review the PIP file.
September 28, 1999, counsel for Plaintiff, sent a letter to Frank Toomey, attaching medical records, discussing State Farm’s position that the Plaintiff’s injuries were pre-existing and making demand for policy limits, and if no response was had on or before October 3, 1999, requesting that Mr. Toomey submit the matter to the attorney for State Farm for the filing of a responsive pleading.
December 6, 1999, the Plaintiff moved for entry of a default by the Clerk against the Defendant, State Farm, for failure to serve or file any paper, and faxed a copy to Frank Toomey of State Farm. Default entered against State Farm, copy of which was faxed to Frank Toomey.
December 8, 1999, counsel for the Plaintiff wrote to Frank Toomey of State Farm, advising that the Plaintiff was not longer interested in negotiating with State Farm, and requesting that the matter be submitted to counsel for State Farm so that an answer could be obtained on the complaint.
December 13, 1999, counsel for the Plaintiff wrote to Frank Toomey of State Farm and rejected any and all offers to settle, and requesting that counsel for State Farm answer the complaint.
December 17, 1999, counsel for Plaintiff faxed a copy of Motion for Clerk’s Default and Ordering granting to Frank Toomey.
January 3, 2000, counsel for Plaintiff sent a copy of the Notice for Trial by fax and regular mail to Steven Oliver, State Farm adjuster.
January 4, 2000, counsel for Plaintiff wrote to Frank Toomey, State Farm adjuster, advising that as per letter from Mr. Toomey of December 29, 1999, counsel would forward operative report upon receipt. Counsel further advised of pending lawsuit and of default against State Farm, and again requesting the matter be turned over to counsel for State Farm.
January 7, 2000, a Mandatory Notice of Hearing was forwarded to Frank Toomey of State Farm.
January 14, 2000, Plaintiff filed an Ex Parte Motion to Compel and forwarded copies to Steven Oliver and Frank Toomey of State Farm.
January 20, 2000 a copy of a Notice for Trial was forwarded by fax and regular mail to Steven Oliver and Frank Toomey of State Farm.
January 20, 2000, a copy of a Mandatory Notice of Hearing was forwarded by fax and regular mail to Steven Oliver and Frank Toomey of State Farm.
January 26, 2000, counsel for Plaintiff sent a letter to Frank Toomey of State Farm advising that Plaintiff was rejecting State Farm’s offer to settle for the policy limits.
February 1, 2000, copy of signed Order on Ex Parte Motion to Compel dated January 27, 2000 was forwarded to Frank Toomey.
February 1, 2000, letter from counsel for Plaintiff sent to Frank Toomey, returning check dated January 26, 2000 in the amount of $25,000.00 and release and advising that Plaintiff was unwilling to accept the policy limits from State Farm based on her medical condition and on State Farm’s refusal to tender the policy limits for at least 9 months. Counsel for Plaintiff also advised that the matter was set for trial commencing in June 2000, and offering to mediate.
February 1, 2000, counsel for Plaintiff forwarded three envelopes to Judge’s Judicial Assistant, as per request.
February 3, 2000, Uniform Pretrial Order and Order Setting Trial sent by Court to Frank Toomey and Steven Oliver of State Farm.
February 29, 2000, letter from Plaintiff’s counsel to Edith Ponder of State Farm, confirming agreement not to set any litigation matters until Ms. Ponder’s return from business meeting and suggesting that said litigation schedule be set up as soon as possible because of the June 2, 2000 trial period.
March 3, 2000, counsel for Plaintiff wrote to Edith Ponder of State Farm, suggesting that they discuss this matter and perhaps work toward setting up mediation.
March 7, 2000, counsel for Plaintiff wrote to Edith Ponder of State Farm, expressing disappointment over Ms. Ponder’s failure to contact counsel and outlining the case from the Plaintiff’s position; advising that there was outstanding discovery pending and that there had been no response to the Ex Parte Order on the motion to compel; advising that counsel intended to seek sanctions for the outstanding discovery, unless someone from State Farm contacted counsel and informed him as to what was going on.
March 21, 2000, counsel for Plaintiff wrote to Edith Ponder of State Farm, informing her that he had filed the Civil Remedy Notice of Insurer Violation with the Bureau of Consumer Assistance, and forwarding a copy of same.
April 10, 2000, counsel for Plaintiff wrote to Edith Ponder of State Farm attaching Disclosure of Expert Witnesses and reminding her that the matter was set for trial commencing June 2, 2000.
May 10, 2000, counsel for Plaintiff forwarded Unilateral Pretrial Catalog, with witness and exhibit list to Edith Ponder of State Farm.
June 2, 2000, Calendar Call before Court, with Plaintiff present and State Farm failing to appear.
June 6, 2000, jury trial conducted, verdict rendered in favor of Plaintiff and damages of $1,075,692.00 being awarded to Plaintiff.
June 6, 2000, Final Judgment entered awarding damages of $1,075,692.00, costs of $3,300.46 and attorney fees of $101,250.00, bearing interest at the rate of 10% per year.
June 13, 2000, Amended Final Judgment entered awarding damages of $1,075,692.00, costs of $3,300.46, and attorney fees of $101,250.00, bearing interest at the rate of 10% per year, from which let execution issue.
August 7, 2000, Notice from Deputy Clerk of the Circuit Court, determining that, after a review of the court file, judgment entered on June 6, 2000 against State Farm had not been satisfied.
August 14, 2000, letter from counsel for the Plaintiff to General Counsel of the Office of Insurance Commissioner, forwarding copies of unsatisfied judgment, requesting that State Farm’s Certificate of Authority be suspended or revoked, pursuant to §627.427(2) Florida Statutes, for failure to satisfy judgment within 60 days.
August 22, 2000, Emergency Motion to Stay Execution of Final Judgment filed by State Farm.
August 22, 2000, Motion to Quash Service of Process, to Vacate Default Judgment, and to Set Aside Final Judgment, filed by State Farm.
August 22, 2000, Defendant’s Motion for Emergency Hearing filed by State Farm.
August 24, 2000, Emergency Hearing held on Defendant’s Motion to Stay Execution of Final Judgment; to Quash Service of Process; to Vacate Default Judgment; and to Set Aside Final Judgment.
August 24, 2000, Order Granting Stay of Execution on Final Judgment, conditioned upon filing of supersedeas bond in the amount of $1,416,290.80 by Defendant, State Farm.
September 1, 2000, Motion to Conform Judgment, filed by Defendant, State Farm.
October 16, 2000, letter from Special Master, Gerald Mager, advising that this matter had been mediated on October 13, 2000, and no settlement had been reached.
October 26, 2000, Hearing on Defendant, State Farm’s Motion to Conform Judgment, to Quash Service of Process, to Vacate Default Judgment, and to Set Aside Final Judgment.
As indicated by the chronological listing of events in this matter, despite all of the correspondence from counsel for the Plaintiff to various State Farm adjusters, State Farm did not respond to this lawsuit until August 22, 2000, when they filed the Emergency Motion to Stay Execution of Judgment. At that time, State Farm also filed a Motion to Quash Service of Process, to Vacate the Default Judgment and to Set Aside the Final Judgment. The motion was predicated on the fact that the Plaintiff did not serve the Complaint on the Commissioner of Insurance, as required by §624.422 Florida Statutes. The Defendant, State Farm, argued in the Motion that since service was improper, this Court did not have jurisdiction over State Farm and therefore the Default and the Final Judgment, entered against the Defendant, State Farm, were void as a matter of law.2
Section 624.422 Florida Statutes provides in pertinent part:
(1) Each licensed insurer . . . . shall be deemed to have appointed the Insurance Commissioner and Treasurer . . . . as its attorney to receive service of all legal process issued against it in any civil action or proceeding in this state; and process so served shall be valid and binding upon the insurer.
(3) Service of process upon the Insurance Commission and Treasurer as the insurer’s attorney pursuant to such an appointment shall be the sole method of service of process upon an authorized domestic, foreign, or alien insurer in this state. (Emphasis added)
It is undisputed that the Plaintiff did not serve State Farm through the Insurance Commissioner, but rather by serving one its claims representatives. The Defendant argued that because service upon the Commissioner is the sole method of service authorized, the Plaintiff’s attempt to confer personal jurisdiction over the Defendant upon this Court by serving process upon State Farm’s claims representatives must fail.
The service of process requirements as contemplated by the statute are to expedite the institution and progress of insurance litigation for the protection and convenience of both the parties and insurance companies doing business in this state. Home Life Insurance Company v. Regueira, 243 So.2d 460 (Fla. 2d DCA 1970). The insurance commissioner, in effecting service of process, is an “official conduit through whom process is centrally initiated (a benefit to the public) and by whom `notice’ to the insurer is assured (a benefit to the insurer).” Id. Furthermore, pursuant to paragraph (2) of §624.422, the time within which an insurance company is required to respond to a summons and complaint is computed not from the date of initial service upon the commissioner, but rather from the date of the `forwarding’ of the summons and complaint to the insurer’s designee by registered or certified mail. Id. As such, courts have consistently held that the intent of the statute is clear, that is, service through the Insurance Commissioner is the only means of obtaining that service of process upon an insurer and any other method of obtaining service of process upon an insurance company is invalid as a matter of law. Morris v. American Bankers Ins. Co. of Florida, 184 So.2d 906 (Fla. 3d DCA 1966). This interpretation is reinforced by a reading of paragraph 4 of §48.081 Florida Statutes, providing for service upon a corporation, which specifically states that “[t]his section does not apply to service of process on insurance companies.” Therefore, this Court agrees with the prior court decisions holding that only service upon the Commissioner of Insurance is sufficient to bring the defendant under the jurisdiction of the court. Morris, supra. As such, this Court was of the opinion that Defendant, State Farm’s motion would, necessarily, be granted.3
To the surprise of this Court, however, at the hearing on October 26, 2000, the Defendant informed the Court that it was not arguing the motion to quash service and it was abandoning the defense of improper service, because it was felt that State Farm did receive notice of the pending lawsuit.4 In doing so, State Farm conceded that there was notice, waived its defense of lack of proper service, and implicitly agreed that, although service was improper, State Farm was willing for this lawsuit to move forward.5 Furthermore, in forgoing its argument on the motion to quash service, the Defendant abandoned its argument that the default and final judgment were void as a matter of law because of improper service. Therefore, there is no need for this Court to further address the Motion to Vacate Default and Set Aside Final Judgment on this ground.
The Defendant, State Farm, next moved to vacate the clerk’s default, pursuant to Rule 1.500(a) of the Florida Rules of Civil Procedure which provides in pertinent part:
When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper.
The Defendant, State Farm, argues that it did serve “papers” in this lawsuit sufficient to require that it be given notice of the application of default, which State Farm claims was never sent to it. However, a review of the chronological listing of correspondence clearly shows that State Farm did have notice of the application, as a copy of the Motion for Default and Entry of Default were sent to Frank Toomey of State Farm by fax on December 6, 1999.
Despite State Farm’s failure to show that it was entitled to relief under Rule 1.500, Florida Rules of Civil Procedure, this Court offered to vacate the clerk’s default, but inquired how vacating the clerk’s default would aid State Farm in having the Final Judgment set aside, since it was based on a trial on the issues of liability and damages. State Farm, rather than address this issue, continued to argue that because papers were filed, the clerk’s default should be vacated and the “default judgment” rendered as a result should be set aside. At that point, this Court did vacate the clerk’s default, but continued to inquire how this would assist the Defendant. While, clearly, a clerk’s default is a prerequisite for a default judgment, the Plaintiff here did not act on the clerk’s default. As counsel for Plaintiff stated, the motion for clerk’s default was merely a precautionary measure, designed to protect the Plaintiff’s rights. The Plaintiff, even after obtaining the default, continued to forward correspondence to the Defendant, State Farm, including sending copies of Notices of Trial, Mandatory Notices of Hearing, Ex Parte Motion to Compel, Uniform Pretrial Order and Order Setting Trial, Disclosure of Expert Witnesses, and Unilateral Pretrial Catalog. The Defendant, State Farm did not respond to any of this correspondence. The Plaintiff then proceeded to trial on liability and damages and the jury rendered a verdict in her favor, giving rise to the Final Judgment in question. As such, contrary to State Farm’s argument, there is no default final judgment which this Court could set aside.
Although this Court did agree to vacate the clerk’s default in this matter, the Court feels it must address the Defendant’s further argument in this regard. The Defendant further asserts that it was not provided with sufficient notice of the trial in this matter. The Defendant argues that “[w]hile it is true that a copy of this Court’s “Order Setting Trial” was forwarded to State Farm, a review of that Order indicates this matter was to be tried during the three week period commencing June 12, 2000 . . . . [and] . . . . [n]otwithstanding that Order, a verdict following trial of this case was entered on June 6, 2000 and this Court’s initial “Final Judgment” was entered on that same day. This argument is totally without merit. A review of the Uniform Pretrial Order and Order Setting Trial forwarded by this Court clearly states that calendar call was set for Friday, June 2, 2000 at 10:00 a.m. in Room 1070. The Defendant failed to appear for calendar call. If the Defendant had decided to appear, it would have known that the trial was going to be held on June 6, 2000 instead of June 12, 2000. Therefore, the notice of trial was sufficient and State Farm’s failure to appear at trial and defend itself was a direct result of its own actions, not those of the Plaintiff or this Court.
The Defendant, State Farm, has also moved for an Order Conforming the Final Judgment to the State Farm policy limits of $25,000.00, pursuant to Rule 1.540(b)(1) or (3) of the Florida Rules of Civil Procedure. Rule 1.540(b) provides in pertinent part that “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, or order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . . (3) fraud (whether heretofore denominate intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party . . . .”
Relief from judgment pursuant to Rule 1.540(b)(3), Florida Rules of Civil Procedure is directed to the sound discretion of the court and cannot be invoked as a matter of right. Ashland Oil, Inc. v. Pickard, 289 So.2d 781 (Fla. 3d DCA 1974). The rule is intended to prevent manifest injustice, and the moving party must demonstrate the existence of ground to justify the court exercising its discretion. Id.
The Defendant asserts that, even though Plaintiff’s attorney, by his own admission, knew prior to trial that the State Farm policy limits were in the amount of $25,000.00, he nevertheless requested that this Court enter Final Judgment upon the verdict of $1,180,242.46, which verdict exceeds the stated policy limits by $1,155,242.46. The Defendant argues that the conduct of the Plaintiff’s attorney was in direct contradiction to well established insurance law in the State of Florida, thereby making such conduct fall within the category of conduct outlined in Rule 1.540(b)(1) mistake, inadvertence, surprise or excusable neglect, or (3) fraud, misrepresentation, or other misconduct of opposing counsel.
A request for relief under Rule 1.540(b)(3), Fl. R. Civ. P., alleging fraud, misrepresentation or other misconduct of the adverse party is “by far the most serious charge that could be leveled toward an adverse party and must always be established by `clear and convincing evidence’.” Danner v. Danner, 206 So.2d 650 (Fla. 2d DCA 1968). “Fraud is an act or omission of the successful party that result in a judgment obtained by misrepresentation, artifice, trickery, duress, coercion, overreaching, or circumvention.” Trawick, Florida Practice & Procedure, §26-8 (1997 Edition). “Misrepresentation and other misconduct have been included as grounds for relief in conjunction with fraud to give wide scope to the basis for relief and to eliminate artificial distinctions between types of misconduct.” Id.
It is well settled that, whatever the alleged acts of misconduct by an adverse party, they must have been of such a nature that Defendant would have acted to its material detriment. See Estate of Bobinger v. Deltona Corp., 563 So. 2d 739 (Fla. 2d DCA 1990). The misconduct would have be such as to cause the defendant from failing to put forth any defense. State Farm has failed to allege how the Plaintiff’s counsel causing final judgment to be entered in an amount exceeding the policy limits, prevented State Farm from failing to timely act to defend this action.
A party’s failure to plead available defenses is not a basis for relief from a judgment under Rule 1.540(b), Florida Rules of Civil Procedure. See Miami National Bank v. Sobel, 198 So.2d 841 (Fla. 3d DCA 1967). “The failure of a party to take the required steps necessary to protect its own interests, cannot, standing alone, be grounds to vacate judicially authorized acts to the detriment of other innocent parties . . . . [t]he law requires certain diligence of those subject to it, and this diligence cannot be lightly excused.” John Crescent, Inc. v. Schwartz, 382 So.2d 383 (Fla. 4th DCA 1980). Plaintiff did not take any steps to prevent State Farm from defending this action. Had State Farm participated in the prosecution of this action, they would have most certainly been able to assert any and all defenses. State Farm, however, did not participate, for reasons known only unto it. For State Farm to now infer that the actions of Plaintiff’s counsel in requesting that the final judgment be entered upon the verdict, although it exceeded the policy limits, constitutes the type of misconduct within the meaning of the statute, is simply disingenuous.
The Defendant also asserts that the conduct of Plaintiff’s counsel, in requesting this Court to enter judgment in excess of the policy limits, falls within the category of conduct outlined in subdivision (1) of Rule 1.540, i.e., mistake, inadvertence.
The mistake which is envisioned by the Rule is the type of honest and inadvertent mistake, resulting in an act or omission by one or more of the parties to the action of the Court, and is usually for setting the record straight. See Danner v. Danner, 206 So.2d 650 (Fla. 2d DCA 1968). For the reasons stated below, this Court finds that the relief from judgment based on mistake or inadvertence is not applicable to the facts of this case.
The Defendant argues, in support of its motion, that Florida courts have repeatedly held that where bad faith has not been alleged and where a judgment has been entered against an insurer in excess of its policy limits, a motion to conform the judgment to the policy limits is the proper motion for relief and should be granted, citing Government Employees Insurance Co v. Robinson, 581 So.2d 230 (Fla. 3d DCA 1991); Stella v. Craine, 281 So.2d 584 (Fla. 4th DCA 1973); Dixie Ins. Co. v. Lewis, 484 So.2d 89 (Fla. 2nd DCA 1996); Allstate Ins. Co. v. Shilling, 374 So.2d 611 (Fla. 4th DCA 1979); and Soler v. Kukula, 297 So.2d 600 (Fla. 3d DCA 1974).
While at first glance, the cases cited could support the Defendant’s argument, upon a further review, the facts in those cases are clearly distinguishable from this matter. First and foremost, in every one of those cases, the defendants took part in the defense of the action. In Robinson, supra, GEICO answered the complaint, interposing defenses to both liability and the claimed amount of damages, and it was established that the insurer’s liability was limited to that of the policy. In Stella, supra, when the insurer filed an answer to the complaint, it admitted the issuance of the liability policy insuring the defendant-owner for all sums which he might be found legally obligated to pay, up to the limits of the policy. The policy limits were not alleged, however, at the pretrial conference defendant’s counsel put plaintiff’s counsel on notice of the amount of the policy limits. Similarly, in the cases of Shilling, supra, Dixie, supra, and Soler, supra, the policy limits were revealed in pretrial discovery and there was no disagreement as to the limits of the policy. State Farm, for whatever reason, did not take any part in this action, making these facts distinguishable.
Furthermore, in all of those cases cited by State Farm in support of their motion, the defendant insurers, when moving to amend the judgment, attached a supporting affidavit and/or a copy of the insurance policy. When moving to amend judgment, “[s]omething more than a mere allegation in a motion to limit liability is necessary for the insured to have his day in court.” Williams v. Banning, 259 So.2d 725 (Fla. 2d DCA 1972). The Court notes that there is no supporting affidavit, or insurance policy attached in State Farm’s motion.
It is true that, absent unusual circumstances, an insurer cannot be held liable for an amount in excess of the stated insurance policy limits. Shilling, supra. However, it is also true that circumstances in a case may be such that a Court is justified in refusing to reduce a judgment to the limits of the policy. This case is just such a case.
This Court is of the opinion that State Farm has been grossly negligent in its handling of this matter. The facts of this case are strikingly similar to those in the cases of Otero v. Government Employees Insurance Co., 606 So. 443 (Fla. 2d DCA), and Hurley v. Government Employees Insurance Company, 619 So.2d 477 (Fla. 2d DCA 1993). In those cases, GEICO also failed to take any action in the lawsuits against it, despite receiving numerous pleadings. The Court, in finding that GEICO had been grossly negligent in its inaction with regard to the underlying lawsuit, the Court stated:
GEICO is not a mom-and-pop business confronted by an occasional lawsuit. It is a large corporate entity whose business includes engaging in litigation on a regular basis. When confronted with a continuing shower of legal proceedings naming it as the defendant, including a notice of trial, GEICO did nothing. This inaction clearly constitutes gross negligence barring GEICO from relief.
That reasoning is easily applicable to the matter at bar. It is undisputed that counsel for Plaintiff initiated or forwarded in excess of 25 pieces of correspondence and legal pleadings, which State Farm chose to ignore. Three different claims adjusters were involved in this matter, yet not one of them referred the matter to counsel to file a responsive pleading. Although not properly served, State Farm conceded that it had notice and yet does not offer any explanation as to why it failed to file any kind of response to this lawsuit. Furthermore, State Farm had notice of the default and did not timely move to vacate it. It was not until State Farm was confronted with the possible aftereffects of this final judgment, that it decided to act.6
This Court is further of the opinion that State Farm’s negligence has continued to this date. As stated earlier, despite State Farm’s failure to show it was entitled to relief under Rule 1.500 Fla. R. Civ. P., this Court vacated the clerk’s default, but there was no default judgment to set aside. State Farm did originally set forth a viable argument to vacate the judgment entered herein. However, State Farm abandoned the only ground upon which relief would have been granted, that of lack of personal jurisdiction based on improper service. Therefore, this Court was left with the motion to conform the judgment under the very narrow grounds of Rule 1.540(b)(1) or (3), Fla. R. Civ. P. As State Farm clearly did not satisfy those grounds, there is no basis for this Court to grant the relief requested.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant, State Farm’s Motion to Set Aside Final Judgment and Motion to Conform Judgment to Insurance Policy Limits, are DENIED.
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1As will be discussed below, the complaint was served on State Farm directly, in error. Service of the complaint should have been on the Florida Commissioner of Insurance as provided in §624.422 Florida Statutes.
2Defendant moves to vacate default judgment and set aside final judgment pursuant to Rule 1.540, Florida Rules of Civil Procedure.
3Indeed, because this Court agreed that the failure to serve the Commissioner of Insurance was fatal to confer personal jurisdiction over the Defendant, the Court was prepared to grant the Defendant’s motion prior to the hearing.
4Because of the concern over the ramifications of the Defendant’s decision, this Court asked the Defendant at least 3 times if they were sure they did not wish to pursue this argument, to which they affirmatively replied that they were abandoning their argument with regard to service of process. As stated previously, without a doubt, had the Defendant pursued this argument, this Court would have granted their motion.
5It is undisputed that a party may waive the defense of lack of personal jurisdiction.
6The Court notes that it has not addressed State Farm’s argument that State Farm was not notified of the Final Judgment until more than 60 days after it was entered. Considering State Farm’s complete failure to take any action in this matter, this Court is doubtful that it would have responded to the notice of the entry of the final judgment.
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