FINKEL OUTDOOR PRODUCTS, INC., APPELLANT,
v.
MARIE S. LASKY, WINDING CREEK CONDOMINIUM CORP., AND CORNERSTONE MANAGEMENT, INC., APPELLEES

Fla. 2d DCA | 1988-07-27
No. 87-3229
LEHAN and FRANK, JJ., concur.
529 So. 2d 317 Florida District Court of Appeal, Second District (1988) Caution
Cited by 21 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Finkel Outdoor Products appealed the denial of its motion to set aside a default judgment entered against it. The court reversed, holding that the trial judge abused his discretion by denying the motion where the defendant acted promptly upon discovering the default, presented a meritorious defense, and the opposing party suffered no prejudice.


Holding

The court reversed and held that the trial court abused its discretion in denying the motion to set aside the default. The court determined that reliance on an insurance carrier to defend is not per se inexcusable neglect, and where an interlocutory default order is challenged, any reasonable doubt should be resolved in favor of vacating the default to allow trial on the merits.


Headnotes

[1] Reliance on a liability insurance company for a timely defense can constitute excusable neglect for purposes of setting aside a default.

[2] A trial court should resolve any reasonable doubt in favor of vacating an interlocutory order of default to allow a trial on the merits.

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Key Quotes

“misplaced reliance upon an insurance company for his timely defense is not excusable neglect by a defendant within the meaning of Rule 1.540(b)”

The Edwards v. City of Fort Walton Beach standard disapproving the blanket rule that insurance company reliance is per se inexcusable neglect

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Facts & Procedural History

Finkel Outdoor Products, a foreign corporation, was named as a defendant in a second amended complaint after 18 months of litigation. It was served on…

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Opinion of the Court
CAMPBELL, Chief Judge.

CAMPBELL, Chief Judge.

Appellant, Finkel Outdoor Products, Inc., appeals the denial of its motion to set aside a default entered against appellant. We reverse.

Appellant was first made a party to the action below when it was named a defendant in a second amended complaint filed after a year and a half of active litigation on the original complaint and the first amended complaint. Appellant, a foreign corporation, was served by service on its registered agent on April 20, 1987.

On May 1, 1987, appellant forwarded the complaint to its liability insurance carrier, Royal Insurance Company (Royal), with a cover letter requesting Royal to defend on appellant’s behalf.

On May 4, 1987, an employee of Royal in New Jersey spoke by telephone with an employee of appellee La-sky’s attorneys and obtained a fifteen day extension of time until May 25,1987, to file defenses on behalf of appellant.

On May 7, 1987, Royal’s New Jersey office mailed the complaint to an adjuster in its Tampa office with instructions to procure counsel and defend on appellant’s behalf. Royal’s Tampa adjuster unilaterally and mistakenly concluded that appellant was in fact not a named defendant and need not appear and defend. Appellant was not a named defendant in the caption or style of the second amended complaint, but was named in the body of the complaint. Lasky’s attorneys defaulted appellant on June 8, 1987, without any further contact with or notice to either Royal or appellant. Royal’s Tampa adjuster subsequently learned that a default had been entered. A notice of appearance was filed by attorneys for appellant on June 15,1987, and on June 26,1987, appellant’s attorneys filed its motion to set aside default. Another of the principal defendants, Winding Creek Condominium Corporation (Winding Creek), though served with the second amended complaint on April 2, 1987, did not respond until September 15, 1987, when it filed a motion to dismiss.

The trial court on September 16, 1987, denied appellant’s motion to set aside default on the stated basis of appellant’s failure to demonstrate excusable neglect. Appellant set forth a meritorious defense and acted promptly and diligently to set aside the default when it was discovered. No prejudice would have resulted to appel-lee Lasky since another of the defendants (Winding Creek) did not respond until three months after the default was entered against appellant. There was no attempt to default Winding Creek. The trial judge apparently found no excusable neglect because there was no showing by appellant that it took any steps to defend except to rely upon its liability carrier to defend.

We conclude the trial judge placed too much emphasis on the appellant’s reliance on its liability carrier. The important time sequences involved in this case are brief. Only fourteen days elapsed between the agreed-upon time for filing defenses, May 25, 1987, and the default, June 8, 1987. Only thirty-eight days elapsed between the time appellant asked its carrier to defend, May 1, 1987, and the default, June 8, 1987.

In Edwards v. City of Fort Walton Beach, 271 So. 2d 136, 137 (Fla.1972), the supreme court expressly and specifically disapproved as a general rule the statement that “misplaced reliance upon an insurance company for his timely defense is not excusable neglect by a defendant within the meaning of Rule 1.540(b).” The court in Edwards noted that the facts of each case are of singular importance in determining whether to grant relief from a default. See Kapetanopoulos v. Herbert, 449 So. 2d 947 (Fla. 2d DCA 1984).

Where the motion to vacate is from an interlocutory order of default and not a final judgment, and where there is any reasonable doubt in the matter of vacating the default, the matter should be resolved in favor of vacating the default and allowing a trial upon the merits. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962).

A mere abuse of discretion is sufficient to warrant reversal of a trial judge’s refusal to vacate an interlocutory order of default as opposed to a gross abuse of discretion needed to reverse a refusal to vacate a default judgment. North Shore Hospital; Kapetanopoulos. We conclude that, under the facts of this case showing appellee would suffer neither delay nor prejudice, the trial judge abused his discretion in failing to set aside the default.

Reversed.

LEHAN and FRANK, JJ., concur.


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Citator

Cited By (11 total)

  • Terrie G. Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090 (Fla. 4th DCA 2006)
    …default, default judgment, and the prevailing party attorney’s fee and cost judgments. THE DEFAULT JUDGMENT A trial court’s refusal to vacate a default judgment is reviewed for a gross abuse of discretion. See Finkel Outdoor Prods., Inc. v. Lasky, 529 So. 2d 317, 318 (Fla. 2d DCA 1988). Rule 1.540(b)(4) provides relief from void judgments. Relief from a void judgment may be granted at any time. See Shields v. Flinn, 528 So. 2d 967, 968 (Fla. 3d DCA 1988); Kennedy v. Richmond, 512 So. 2d 1129, 1130 (Fla. 4t…
  • Szucs v. Qualico Dev., Inc., 893 So. 2d 708 (Fla. 2d DCA 2005)
    …mary judgment and the final judgment’s adjudication of damages. Motion to Vacate Default The standard of review for an order denying a motion to vacate default is whether the trial court abused its discretion. Finkel Outdoor Prods., Inc. v. Lasky, 529 So. 2d 317, 318 (Fla. 2d DCA 1988). When ruling on a motion to vacate a default a court must consider whether the moving party (1) has shown excusable neglect, (2) has a meritorious defense to the opposing party’s claims, and (3) has exercised due diligence in…
  • Coquina Beach Club Condo. Ass'n, Inc. v. Wagner, 813 So. 2d 1061 (Fla. 2d DCA 2002)
    …ult rather than a final judgment, “where there is any reasonable doubt in the matter of vacating the default, the matter should be resolved in favor of vacating the default and allowing a trial upon the merits.” Finkel Outdoor Prods., Inc. v. Lasky, 529 So. 2d 317, 318 (Fla. 2d DCA 1988). We conclude that the trial court abused its discretion in denying the motion to set aside the clerk’s default because the Association established excusable neglect, due diligence, and the existence of a meritorious defense.…

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