Chamberlin v. Mid-Century Ins. Co., Inc., MID-CENTURY
| Citation | 350 So.2d 364 |
| Decision Date | 05 October 1977 |
| Docket Number | MID-CENTURY,No. 77-699,77-699 |
| Court | Court of Appeal of Florida (US) |
| Parties | Delton Donald CHAMBERLIN and Beth Morean, Appellants, v.INSURANCE COMPANY, a Foreign Corporation, Robert Donnelly and Aetna Casualty & Surety Company, Appellees. |
William D. Keith of Monaco & Cardillo, Naples, for appellant chamberlin.
G. Holdt Garver of Thomas & Garver, Naples, for appellant Morean.
Kempton P. Logan of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee Mid-Century.
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, Morean 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 plaintiff's 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 Chamberlin 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...
To continue reading
Request your trial
-
B. C. Builders Supply Co., Inc. v. Maldonado
...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 C......
-
Miami-Dade County v. Coral Bay Section C
...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 C......
-
Zettler v. Ehrlich
...upon this appeal and find them to be without merit. Murphy v. Murphy, 378 So.2d 27 (Fla. 3d DCA 1979); Chamberlin v. Mid-Century Insurance Co., 350 So.2d 364, 365 (Fla. 2d DCA 1977). SCHWARTZ, Judge (specially concurring). I certainly agree that the February 10, 1978 letter from Mulkeen was......
-
Kapetanopoulos v. Herbert, 83-1591
...avoided will not establish excusable neglect. Benedict v. W.T. Hallow Co., 52 Fla. 188, 42 So. 239 (1906); Chamberlin v. Mid-Century Insurance Co., 350 So.2d 364 (Fla. 2d DCA 1977). However, in this case appellants had a reasonable basis to believe that pleadings would be filed on their beh......