YELVINGTON TRANSPORT, INC., AND WILLIAM HARRY LAMPKIN, APPELLANTS,
v.
ENRIQUE HERSMAN, APPELLEE
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Yelvington Transport and William Harry Lampkin appealed a trial court order denying their motion to set aside clerk's defaults. The appellate court reversed, finding the defendants established excusable neglect, demonstrated a meritorious defense, and acted promptly upon learning of the defaults, warranting relief from the default judgment.
The court reversed the trial court's order, holding that the defendants established excusable neglect through sworn affidavits attributable to clerical error and mistaken impression, demonstrated a meritorious defense through their proposed answer denying negligence and asserting affirmative defenses, and acted promptly upon learning of the defaults, thereby warranting relief.
[1] A clerical error by an insurer in misfiling suit papers constitutes excusable neglect for failing to timely respond to a complaint.
[2] A mistaken impression by a supervisor that no action is needed on suit papers, due to prior forwarding to an insurer, can constitute excusable neglect.
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Join FLexlaw to unlock all legal intelligence“Clerical employees at Nationwide, however, misfiled the suit papers and did not engage counsel, as required, to respond to the complaint. Moreover, the vice-president mistakenly advised his employee, William Harry Lampkin, that no action need be taken on Lampkin's suit papers in view of the prior forwarding of Yelvington's suit papers to Nationwide. Plainly, the aforesaid clerical error and mistaken impression constitute the requisite excusable neglect under the established case law in this state.”
Establishes that clerical errors and mistaken impressions constitute excusable neglect for purposes of setting aside defaults
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Join FLexlaw to unlock all legal intelligenceYelvington Transport's vice-president timely forwarded lawsuit papers to Nationwide Insurance Company for defense. Clerical employees at Nationwide mi…
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PER CURIAM.
This is an appeal by the defendants Yelv-ington Transport, Inc. and William Harry Lampkin from a non-final order denying the defendants’ motion to set aside two clerk’s defaults. See Fla.R.Civ.P. 1.500(d). We reverse the order under review based on the following briefly stated legal analysis.
First, the defendants, by sworn affidavits, established excusable neglect in failing to timely respond to the complaint filed below by the plaintiff Enrique Hersman. It appears that Yelvington Transport’s vice-president timely forwarded the suit papers herein to its insurer, Nationwide Insurance Co., for the purpose of defending the instant action. Clerical employees at Nationwide, however, misfiled the suit papers and did not engage counsel, as required, to respond to the complaint. Moreover, the vice-president mistakenly advised his employee, William Harry Lampkin, that no action need be taken on Lampkin’s suit papers in view of the prior forwarding of Yelvington’s suit papers to Nationwide. Plainly, the aforesaid clerical error and mistaken impression constitute the requisite excusable neglect under the established case law in this state. Foundation Well Point Corp. of Fla. v. Bauman, 437 So. 2d 729 (Fla. 3d DCA 1983), pet. for review denied, 447 So. 2d 885 (Fla.1984); Broward County v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983); Brandt v. Dolman, 421 So. 2d 689 (Fla. 4th DCA 1982); County Nat’l Bank of North Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981); Renuart-Bailey-Cheely Lumber & Supply Co. v. Hall, 264 So. 2d 84 (Fla. 3d DCA 1972).
Second, the defendants made an adequate showing of a meritorious defense by filing a proposed answer which generally denied the complaint’s allegations of negligence and set up certain affirmative defenses. Although this answer would have been an inadequate showing of a meritorious defense had a final judgment been entered on the clerk’s defaults, Moore v. Powell, 480 So. 2d 187, 139 (Fla. 4th DCA 1985), pet. for review denied, 492 So. 2d 1333 (Fla.1986), it was plainly a sufficient showing of a meritorious defense to set aside the clerk’s defaults which were entered below. Moore, 480 So. 2d at 139; see also Broward County v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983).
Third, it is plain that the defendants acted promptly to set aside the clerk’s defaults herein upon learning of same. Brandt v. Dolman, 421 So. 2d 689 (Fla. 4th DCA 1982); County Nat’l Bank of North Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981).
Finally, the trial court abused its discretion in refusing to set aside the clerk’s defaults in this case, given the above-stated showing. Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA), pet. for review denied, 476 So. 2d 674 (Fla.1985); Broward County v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983); Travelers Ins. Co. v. Bryson, 341 So. 2d 1013 (Fla. 4th DCA 1977). The non-final order under review is therefore reversed and the cause is remanded to the trial court with directions (a) to set aside the clerk’s defaults entered below, and (b) to allow the defendants to file their proposed answer to the plaintiff’s complaint.
Reversed and remanded.
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Cited By
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Venero v. Balbuena, 652 So. 2d 1271 (Fla. 3d DCA 1995)…buena admitted that Venero had a meritorious defense, and Venero showed excusable neglect in failing to answer the complaint because he relied upon the insurer’s assurances that the matter would be handled. See Yelvington Transport, Inc. v. Hersman, 513 So. 2d 1361 (Fla. 3d DCA 1987). [*1273] Finally, looking at the totality of the circumstances, the record reveals that Venero did exercise due diligence in seeking relief upon learning of the default. See Apolaro v. Falcon, 566 So. 2d 815 (Fla. 3d DCA 1990); Ci…
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Ponderosa, Inc. v. Stephens, 539 So. 2d 1162 (Fla. 2d DCA 1989)…torious defense sufficient for purposes of setting aside an interlocutory order of default. See North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Collins v. Collins, 519 So. 2d 729 (Fla. 2d DCA 1988); Yelvington Transp., Inc. v. Hersman, 513 So. 2d 1361 (Fla. 3d DCA 1987); Broward County v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983); Westinghouse. Since Ponderosa carried its burden of establishing excusable neglect, a meritorious defense, and due diligence, the trial court abused its discretion in…
Authorities Cited
- Glenna Somero and Robert Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985)
- Cnty. Nat'l Bank OF N. Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981)
- Travelers Ins. Co. v. Daisey Q. Bryson and Salvatore DeLuca, 341 So. 2d 1013 (Fla. 4th DCA 1977)
- Broward Cnty. v. Perdue, 432 So. 2d 742 (Fla. 4th DCA 1983)
- Wes Brandt v. Dolman, 421 So. 2d 689 (Fla. 4th DCA 1982)
- LaNorris Hobbs v. State, 264 So. 2d 84 (Fla. 1st DCA 1972)
- Found. Well Point Corp. OF Fla. & Eddie Bee Paulk v. Bauman, 437 So. 2d 729 (Fla. 3d DCA 1983)
- Searle v. Fortune Fed. Sav. & Loan Ass'n, 480 So. 2d 187 (Fla. 2d DCA 1985)