SERAFIN MARTINEZ AND PREFERRED RISK MUTUAL INSURANCE CO., AN OHIO CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLANTS,
v.
EUGENE E. KANITZ, INDIVIDUALLY, AND MYRA D. KANITZ, A MINOR BY AND THROUGH FATHER AND NEXT BEST FRIEND, EUGENE E. KANITZ, APPELLEES
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Martinez and his insurer appealed an order denying their motion to set aside a default judgment entered due to late mail delivery during the Christmas holidays. The court reversed, holding that defendants were not negligent in missing the pleading deadline when the delay resulted from postal delays beyond their control and they had a meritorious defense.
The court reversed and remanded with instructions to set aside the default judgment, holding that defendants were entitled to relief from the default where the delay resulted from circumstances beyond their control (postal delays), they were not negligent or careless, and they asserted a meritorious defense.
[1] An interlocutory appeal may be taken from an order denying a motion to set aside a default, even if no final judgment has been rendered.
[2] A default entered against a defendant may be set aside when the defendant demonstrates a meritorious defense and shows that the default was not due to negligence, careles…
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Join FLexlaw to unlock all legal intelligence“Defendants claim they suffered late delivery of mail due to the Christmas holidays; that they were not negligent, careless or inadvertent; that they have a meritorious defense and are ready for an early and speedy trial.”
Establishes the factual basis for defendants' relief—circumstances beyond their control, absence of negligence, and existence of a meritorious defense.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendants were served with complaints on December 7-9, 1970, giving them 20 days to respond. The Miami office of defendants' insurance company receiv…
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Defendants take this interlocutory appeal from an order which denied their Supplemental Motion to set aside a default. See Rule 4.2(a), F.A.R., 32 F.S.A. No final judgment has ever been rendered in this case.
The individual defendant Martinez was served on December 7th and the defendant insurance company on December 9, 1970. They had 20 days thereafter in which to plead or answer. Plaintiffs filed a motion for default on December 29, 1970 and default was entered against Martinez on December 29, 1970, and against the insurance company on January 4, 1970.
Defendants filed an answer on January 21, 1971 and denied negligence and other matters and affirmatively alleged contributory negligence on the part of the injured plaintiff and that the negligence of a third party caused the alleged injuries or damages. At the same time defendants filed a motion to set aside the default and later filed a supplemental motion to set aside the default. These motions set forth that plaintiffs’ pleadings were mailed to the de*406fendant’s home office in Iowa and from there remailed to the local office in Miami, Florida. The attachments to the motions indicate the Miami office mailed the complaints to its attorney on December 21, 1970. This was in time for an answer or pleadings to be properly filed by defendants. These pleadings were not delivered to the attorney for the defendants until January 6, 1971, as evidenced by his receipt for certified mail. By the time the pleadings were delivered to defendants’ local attorney the defaults had been entered. Defendants claim they suffered late delivery of mail due to the Christmas holidays; that they were not negligent, careless or inadvertent; that they have a meritorious defense and are ready for an early and speedy trial. Cf. Miami Dolphins, Ltd. v. Florida Dept. of Commerce, Fla.App.1971, 252 So.2d 396.
This case is governed, in our opinion, by North Shore Hospital, Inc. v. Barber, Fla. 1962, 143 So.2d 849; and is accordingly reversed and remanded with instructions to set aside the default heretofore entered and to proceed accordingly.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- State v. Carroll, 252 So. 2d 396 (Fla. 3d DCA 1971)