BELTON DONALD CHAMBERLIN AND BETH MOREAN, APPELLANTS,
v.
MID-CENTURY INSURANCE COMPANY, A FOREIGN CORPORATION, ROBERT DONNELLY AND AETNA CASUALTY & SURETY COMPANY, APPELLEES
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Chamberlin appeals from an order denying his motion to vacate a default judgment entered against him in an insurance coverage dispute. The appellate court affirms the trial court's denial, holding that the trial court did not abuse its discretion in refusing to vacate the default based on Chamberlin's lack of legal representation.
The trial court did not grossly abuse its discretion in denying the motion to vacate. Although Florida policy is liberal regarding vacation of defaults, the appellate standard requires a showing of gross abuse of discretion to overturn a trial court's decision on such a motion.
[1] A trial court's decision on a motion to vacate a default judgment is reviewed for gross abuse of discretion.
[2] A defendant's lack of legal representation, without more, does not automatically constitute excusable neglect for failing to respond to a pleading.
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Join FLexlaw to unlock all legal intelligence“Florida law is liberal in its policy towards vacating defaults”
Establishes the underlying policy favoring relief from defaults, though not absolute
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Join FLexlaw to unlock all legal intelligenceMorean sued Donnelly, Chamberlin, and Mid-Century Insurance Company for personal injuries from an automobile accident. Defaults were entered against t…
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RYDER, Judge.
Appellant/defendant/cross-defendant Chamberlin and appellant/plaintiff Morean appeal from an order denying Chamberlin’s motion to vacate default.
Appellant/plaintiff Morean had filed a complaint for personal injuries as a result of an automobile accident against Robert Donnelly, Chamberlin and Chamberlin’s alleged insurance carrier Mid-Century Insurance Company. Subsequent thereto, More- an obtained defaults against the two individual defendants. Mid-Century Insurance Company answered, denying coverage of Chamberlin.
On October 3, 1976 Morean and Mid-Century entered into a stipulation allowing Mid-Century to file a cross-claim against Chamberlin. We wish to observe at this juncture that our decision here does not preclude plaintiffs right under this stipulation to proceed accordingly against Mid-Century. The circuit court approved the stipulation on October 5, 1976 and granted Mid-Century leave to file the cross-claim against Chamberlin. Mid-Century filed the cross-claim on November 22, 1976 and obtained constructive service of process on Chamberlin in Michigan.
Mid-Century, on December 16, 1976, moved for entry of a default against Cham-berlin for his failure to file or serve any papers in response to the cross-claim and default was entered on December 17, 1976.
In the first week of February 1977, Chamberlin returned to Florida and employed counsel to represent him for the first time. On February 21, 1977, counsel for Chamberlin filed a motion to vacate the default on three grounds, one of which was that the entry of the default was not the result of gross negligence by Chamberlin but because he was not represented by legal counsel. By order of March 25, 1977 the court below denied the motion to vacate the default finding that no evidence of excusable neglect was presented. Chamberlin moved for a re-hearing and said motion was denied on May 4, 1977 from which comes this interlocutory appeal.
Chamberlin urges this court to reverse stating that Florida law is liberal in its policy towards vacating defaults. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962).
Appellant’s position is well taken at the trial court level. However, the trial court, after a hearing and consideration of all facts and evidence before it, determined not to vacate the default and the test at the appellate level on this point is as urged by the appellee as also stated by the North Shore court at page 852. Here, the Florida Supreme Court in correcting the 3rd District Court of Appeal on this very point reiterated its position that to reverse a trial court’s ruling on a motion to vacate, on appeal, a showing of gross abuse of the trial court’s discretion is necessary. See also the Supreme Court’s latest discussion of this point in Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla.1977).
After consideration of the record on appeal, the briefs and arguments, we conclude that the trial court below did not grossly abuse its discretion and, therefore, we must affirm.
Affirmed.
GRIMES, Acting C. J., and OTT, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)…tional factor in determining whether the neglect was excusable the court may consider whether the defendant subsequently demonstrated due diligence in seeking relief upon learning of the default. See, e. g., Chamberlin v. Mid-Century Insurance Co., 350 So. 2d 364 (Fla.2d DCA 1977) (subsequent delay factor in affirming trial court). We believe that this standard as first enunciated by the Supreme Court of Florida in Russ v. Gilbert, 19 Fla. 54, 57 (1882), cited by the court in Coggin v. Barfield, 150 Fla. 551…
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Schwab & Co., Inc. v. Breezy BAY, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978)…dest scope and in order to reverse a judge’s ruling thereunder, there must be a showing of a gross abuse of discretion. Randle Eastern Ambulance Service, Inc. v. Vasta, 345 So. 2d 1084 (Fla. 3d DCA 1977); Chamberlin v. Mid-Century Insurance Company, 350 So. 2d 364 (Fla. 2d DCA 1977). [*119] After reviewing the record in the case at bar, we cannot say that the trial judge abused his discretion, grossly or otherwise in determining that Schwab’s misplaced reliance upon its insurer for its timely defense is not e…
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Garcia Ins. Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977)…sistency disappears. The latter proposition has been with us for quite some time, see, e. g., Coggin v. Barfield, 150 Fla. 551, 8 So. 2d 9 (1942), and has been reiterated recently both by this court, Chamberlin v. Mid-Century Insurance Co., et al., 350 So. 2d 364 (Opinion filed October 5, 1977), and the supreme court, Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla.1977). See also this court’s recent opinion in Bailey v. Deebold, 351 So. 2d 355 (Opinion filed October, 21, 1977). With reference to the for…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla. 1977)