ROGELIO INSUA, INDIVIDUALLY, AND ROGELIO INSUA AND EMMA INSUA, INDIVIDUALLY AND AS PARENTS OF ROGELIO INSUA, FORMERLY A MINOR, APPELLANTS,
v.
AIDA G. CHANTRES, APPELLEE
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The Insuas sued school bus driver Aida Chantres for injuries sustained by their minor son. The trial court dismissed the action for failure to prosecute under Rule 1.420(e) despite the parties' agreement to postpone proceedings pending related insurance coverage determinations by the Florida Supreme Court. The appellate court reversed, finding the dismissal to be plain error.
The dismissal was plain error because the pendency of related declaratory actions provided justification for the apparent lack of activity in the case, and the trial court should have reinstated the action in accordance with the parties' agreement. The court reversed the dismissal and indicated that the insurance company's tactics in seeking affirmance despite inducing the delay warranted assessment of attorney's fees under section 57.105(1), Florida Statutes.
[1] The pendency of a related action justifies apparent non-activity in a case, precluding dismissal for failure to prosecute.
[2] A trial court's denial of a motion to vacate a dismissal, without a hearing, constitutes plain error when the dismissal was based on apparent non-activity that was justif…
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Join FLexlaw to unlock all legal intelligence“It is well settled that the pendency of another related action provides justification for apparent non-activity, precluding dismissal for failure to prosecute under Rule 1.420(e).”
Establishes the controlling legal principle that justified the parties' agreement to postpone the action.
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Join FLexlaw to unlock all legal intelligenceA minor passenger was injured while riding in a school bus operated by Aida Chantres, who was insured by Travelers Indemnity Company. The parties agre…
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SCHWARTZ, Chief Judge.
The minor appellant Insua was injured while a passenger in a school bus operated by the appellee Chantres, who was insured by Travelers Indemnity Company. In this action by the Insuas against Chantres, the parties, including and at the instance of the insurance company, agreed to postpone the action pending the determination of Travelers’ own independent declaratory actions to determine the extent of coverage which culminated in the supreme court decisions of Travelers Indemnity Co. v. Suazo, 614 So. 2d 1071 (Fla.1992) and Travelers Indemnity Co. v. Gonzalez, 614 So. 2d 1074 (Fla.1992).
While the latter cases were proceeding, however, a year went by without record activity in this one and the trial judge therefore dismissed the action on her own motion under Florida Rule of Civil Procedure 1.420(e).
Although the plaintiff — -joined by Travelers— moved to vacate the dismissal on the grounds of the agreement of the parties and the pendency of the other actions, the trial judge, without hearing, denied the motion. This was plain error. It is well settled that the pendency of another related action provides justification for apparent non-activity, precluding dismissal for failure to prosecute under Rule 1.420(e).
See Maler v. Baptist Hosp. of Miami, Inc., 532 So. 2d 79 (Fla. 3d DCA 1988); Estate of Mills v. Florida Ins. Guar. Ass’n, 378 So. 2d 301 (Fla. 3d DCA 1979); Smith v. Saint George Island Gulf Beaches, Inc., 343 So. 2d 847 (Fla. 1st DCA 1976).
Under the circumstances, the trial court’s refusal to reinstate the case in accordance with the agreement of the parties is simply inexplicable. See Gold v. Wohl, 617 So. 2d 409 (Fla. 4th DCA 1993).
It is even more disturbing that Travelers, which induced the delay in the first place and agreed to reinstatement below, did not confess error on this appeal and instead filed a brief seeking affirmance. The “gotcha” tactics it has employed, see Miami Nat’l Bank v. Greenfield, 488 So. 2d 559 (Fla. 3d DCA 1986), review denied, 497 So. 2d 1217 (Fla.1986); American Eastern Corp. v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980); Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979), cert. denied, 378 So. 2d 342 (Fla.1979), are so blatant as to render this appeal appropriate for the assessment of fees under section 57.105(1), Florida Statutes (1993).
Reversed.
On the basis of counsel’s frank and forthcoming post-opinion motion, we modify the last sentence of the opinion of December 6, 1995, to reflect that Travelers Indemnity Company had no part in the appellee’s contention in the answer brief that the order should be affirmed and that the actions of counsel, who was responsible for that argument, while ill advised, were based on a conscientious determination that the position was required properly to represent Ms. Chantres. (The answer brief was required to be filed during the period between counsel’s motion to withdraw from that representation and the granting of that motion by this court.) The facts demonstrate, therefore, contrary to our initial conclusion, that neither Travelers nor counsel is properly subject to the sanctions of section 57.105, Florida Statutes (1993).
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COX v. Wiod, Inc., 764 So. 2d 671 (Fla. 4th DCA 2000)…(Fla.1988). It is well settled that the pendency of another related action provides justification for apparent non-activity, precluding dismissal for failure to prosecute under rule 1.420(e), Florida Rules of Civil Procedure. See Insua v. Chantres, 665 So. 2d 288, 289 (Fla. 3d DCA 1995). In order to show good cause as to why the action should remain pending when the record is devoid of activity within the preceding year, a party must show that he is justifiably prevented from proceeding with the lawsuit beca…
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Seabury v. Cheminova, Inc., 868 So. 2d 625 (Fla. 2d DCA 2004)…ismissal for lack of prosecution because “there was extensive record activity in an identical lawsuit between the same parties, the instant lawsuit being a ‘protective’ lawsuit in the event the other lawsuit was dismissed.” And in Insua v. Chantres, 665 So. 2d 288, 289 (Fla. 3d DCA 1996), the related lawsuit was not between identical parties, but it involved an insurance coverage dispute by the company insuring the defendant in plaintiff Insua’s personal injury action. The good cause for the plaintiffs delay…
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Lisa, S.A. v. Gutierrez, 824 So. 2d 975 (Fla. 3d DCA 2002)…the action should not be dismissed. The plaintiff properly argues that “the pendency of another related action provides justification for apparent non-activity, precluding dismissal for failure to prosecute under Rule 1.420(e).” Insua v. Chantres, 665 So. 2d 288, 289 (Fla. 3d DCA 1995). Further, in Mankowitz v. Fishermen’s Hospital, Inc., 753 So. 2d 753, 754 (Fla. 3d DCA 2000), this Court stated that “[t]he pendency of a parallel lawsuit involving the same parties constitutes good cause to avoid dismissal.”…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979)
- Am. E. Corp. v. Henry Blanton, Inc., 382 So. 2d 863 (Fla. 2d DCA 1980)
- Smith v. ST. George Island Gulf Beaches, Inc., 343 So. 2d 847 (Fla. 1st DCA 1976)
- Maler v. Baptist Hosp. OF Miami, Inc., 532 So. 2d 79 (Fla. 3d DCA 1988)
- Travelers Indem. Co. v. Suazo, 614 So. 2d 1071 (Fla. 1992)
- Sedano's Mkt., Inc. v. Aleman, 488 So. 2d 559 (Fla. 3d DCA 1986)
- Miami Nat'l Bank v. Leo Greenfield, Leo Greenfield, P.A., 488 So. 2d 559 (Fla. 3d DCA 1986)
- Sherrod DRY Wall & Cosmopolitan Mut. Ins. Co. v. Reeves, 378 So. 2d 301 (Fla. 1st DCA 1979)
- Est. of Henry Lee Mills v. Fla. Ins. Guar. Ass'n & Stevenson Ins. Assocs., Inc., 378 So. 2d 301 (Fla. 3d DCA 1979)
- Travelers Indem. Co. v. Gonzalez, 614 So. 2d 1074 (Fla. 1992)