INTER-ATLANTIC INSURANCE SERVICES, INC., APPELLANT,
v.
MARIA HERNANDEZ, APPELLEE
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Inter-Atlantic Insurance Services appeals a trial court's denial of its motion to vacate a default judgment entered against it in an insurance coverage dispute. The court affirmed, holding that Inter-Atlantic failed to demonstrate excusable neglect required to set aside the default.
The court held that Inter-Atlantic failed to demonstrate excusable neglect because its affidavit contained only conclusory statements rather than facts explaining why it should be excused for not responding to the complaint, and therefore the trial court did not abuse its discretion in denying the motion to vacate.
[1] A motion to set aside a default judgment requires the defendant to demonstrate both excusable neglect and a meritorious defense.
[2] A party moving to vacate a default must present facts explaining or justifying the mistake or inadvertence by affidavit or other sworn statement.
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Join FLexlaw to unlock all legal intelligence“It is well established that in considering a motion to set aside a default judgment the trial court must determine whether the defendant demonstrated that his neglect to respond was excusable and that he had a meritorious defense.”
Establishes the two-part test required for vacating a default judgment under Florida law.
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Join FLexlaw to unlock all legal intelligenceMaria Hernandez was involved in an automobile collision on February 2, 1991, and sued her insurance agents and surplus lines insurers for breach of co…
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PER CURIAM.
The defendant, Inter-Atlantic Insurance Services [Inter-Atlantic], appeals from an order denying its motion to vacate default and judgment. We affirm.
The plaintiff, Maria A. Hernandez, was involved in an automobile collision on February 2, 1991. Her automobile insurers refused to pay her claims denying coverage because she had failed to pay her insurance premiums and the policy had been cancelled. As a result, the plaintiff brought an action for declaratory judgment and for damages to enforce the contract for automobile insurance benefits against her surplus lines insurers, Walbrook Insurance Company and Anglo-American Insurance Company, and against the agents, Ferrer Insurance, Inc. and Inter-Atlantic. The complaint was served upon Inter-Atlantic on June 17, 1992. The trial court entered a default judgment against Inter-Atlantic on February 4, 1993, for failure to file a responsive pleading.
Walbrook and Anglo-American were granted summary judgment before trial. The case proceeded to trial and the jury returned a verdict against the remaining defendants, including Inter-Atlantic, for $16,-870.00 plus costs. Upon rendition of the final judgment, Inter-Atlantic moved to set aside the default judgment. Inter-Atlantic’s president filed an affidavit alleging that no pleadings or notices reached persons or counsel responsible for litigation until May 10, 1993, and that Inter-Atlantic was not aware of any of the court proceedings in this matter until then. The trial court denied the motion to set aside the default and Inter-Atlantic appealed.
Inter-Atlantic contends that the trial court abused its discretion in denying Inter-Atlantic’s motion to vacate default judgment where a default was entered despite excusable neglect and the existence of a meritorious defense. We disagree.
It is well established that in considering a motion to set aside a default judgment the trial court must determine whether the defendant demonstrated that his neglect to respond was excusable and that he had a meritorious defense. B.C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981).
The requirement that the defendant demonstrate excusable neglect requires more than a conclusionary statement. A party moving to vacate a default must set forth facts explaining or justifying the mistake or inadvertence by affidavit or other sworn statement, ... and failure to do so will prevent the appellate court from finding a gross abuse of discretion.
B.C. Builders, 405 So. 2d at 1348 (citations omitted).
In the instant case, Inter-Atlantic did not present any evidence of excusable neglect. The affidavit filed by Inter-Atlantic contains conclusive statements rather than the facts required to explain why it should be excused for not responding to plaintiffs complaint. See Napco Paints, Inc. v. LaPorte (U.S.), Inc., 490 So. 2d 1023 (Fla. 3d DCA 1986); Newkirk v. Florida Ins. Guar. Ass’n, Inc., 464 So. 2d 1256 (Fla. 3d DCA 1985). Since Inter-Atlantic failed to show any excusable neglect, we find that the trial court did not abuse its discretion in failing to set aside the default.
Affirmed.
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Sec. Bank, N.A. v. Bellsouth Advertising & Publ'g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996)…other sworn proof. See Santucci Armando, S.C.L. v. Piazza, 658 So. 2d 1169 (Fla. 2d DCA 1995); Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So. 2d 838, 840 (Fla. 2d DCA 1994); Inter-Atlantic Insurance Services, Inc. v. Hernandez, 632 So. 2d 1069, 1070 (Fla. 3d DCA 1994); Vanguard Group, Inc. v. Vanguard Security, Inc., 409 So. 2d 1219 (Fla. 3d DCA 1982); B.C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345, 1348 (Fla. 3d DCA 1981); T.I.E. Communications, Inc. v. Toyota Motors Center…
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Baptist Hosp. OF Miami, Inc. v. Demario, 661 So. 2d 319 (Fla. 3d DCA 1995)…ned to the suit papers when they reached the finance department, and the affidavits of record do not offer a basis on which to draw any factual conclusion or inference.4 We affirm on authority of Inter-Atlantic Insurance Services, Inc. v. Hernandez, 632 So. 2d 1069, 1070 (Fla. 3d DCA 1994), and Intertrans Navigation, Inc. v. Seguros St. Paul de Venezuela, C.A., 576 So. 2d 419, 420 (Fla. 3d DCA 1991).5 Although the default will stand as to the plaintiffs individual claim, we express no opinion on what practica…
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Zivitz v. Zivitz, 16 So. 3d 841 (Fla. 2d DCA 2009)…band claimed that he did not respond to divorce petition because he thought he and the wife were reconciling, as the wife had told him not to worry about the divorce since she was going to drop the matter); Inter-Atl. Ins. Servs., Inc. v. Hernandez, 632 So. 2d 1069, 1070 (Fla. 3d DCA 1994) (affidavit containing conclusory statements was insufficient to establish excusable neglect). As in these cases, neither Robert’s motion nor his affidavits demonstrated excusable neglect for failing to timely comply with the…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)
- Napco Paints, Inc. v. LaPORTE (U.S.), Inc., 490 So. 2d 1023 (Fla. 3d DCA 1986)
- Newkirk v. Fla. Ins. Guar. Ass'n, Inc., 464 So. 2d 1256 (Fla. 3d DCA 1985)
- Nat'l Ben Franklin Life Ins. Corp. v. Cohen, 464 So. 2d 1256 (Fla. 4th DCA 1985)