Espinosa v. Racki
| Decision Date | 23 December 1975 |
| Docket Number | No. 75--84,75--84 |
| Citation | 324 So.2d 105 |
| Parties | Edurado ESPINOSA et al., Appellants, v. Alfred Robert RACKI, a minor, by and through his father and next friend, Alfred R. Racki, and Alfred R. Racki, Individually, Appellees. |
| Court | Florida District Court of Appeals |
Stephens, Magill, Thornton & Sevier, Miami, for appellants.
Robert M. Sussman, Hialeah, and Larry Schatzman, Miami, for appellees.
Before HENDRY, HAVERFIELD and NATHAN, JJ.
Defendants appeal an order denying their motion to vacate final judgment pursuant to RCP 1.540(b). 1
As a result of injuries sustained in an automobile-motorcycle collision, plaintiff, Alfred Racki, on July 19, 1974 filed suit against Angel Espinosa, the operator of the automobile at the time of the accident, Eduardo Espinosa, its owner, and Resources Insurance Company, the liability insurer. A copy of the complaint and summons was mailed to the New York office of defendant Resources which then assigned the case to its Florida adjuster, Rocky Kuznik of General Insurance Adjusters, which was employed by Resources to help handle its backload of claims. Upon his first notice of the claim on August 16, Mr. Kuznik immediately contacted plaintiff's attorney and at the attorney's request sent a copy of the insurance coverage on the condition that he forward to Mr. Kuznik plaintiff's medical records. In addition, Mr. Kuznik noted this file in his diary, obtained a statement from Eduardo Espinosa and sent out a witness statement to an independent witness whose testimony was favorable to the defense.
Plaintiff's attorney did not forward the medical records of plaintiff to Mr. Kuznik, and on September 12 filed without notice a motion for default against the defendants for their failure to file a responsive pleading to the complaint. The motion was granted and on November 5 the trial court entered a final judgment in the total sum of $42,000. Having received notice of the judgment for the first time on December 13, Resources shortly thereafter filed an answer which alleged a meritorious defense and a motion to vacate the final judgment. The primary grounds for the motion to vacate was that (1) plaintiff's attorney had failed to send the medical records as agreed, and (2) Mr. Kuznik used a diary system to keep abreast of the many files in his office and in addition to a large volume of cases and an administrative backup, the diary in which he entered the file in this...
To continue reading
Request your trial
-
Security Bank, N.A. v. BellSouth Advertising & Pub. Corp.
...the merits are precluded. See, e.g., Cinkat Transp., Inc. v. Maryland Casualty Co., 596 So.2d 746 (Fla. 3d DCA 1992); Espinosa v. Racki, 324 So.2d 105 (Fla. 3d DCA 1975). The bank's failure to offer any record evidence of excusable neglect, due to either misfeasance of counsel or the unavai......
-
B. C. Builders Supply Co., Inc. v. Maldonado
...340 So.2d 515 (Fla.3d DCA 1976); Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla.3d DCA 1976); Espinosa v. Racki, 324 So.2d 105 (Fla.3d DCA 1975); Plotkin v. Deatrick Leasing Co., 267 So.2d 368 (Fla.3d DCA 1972); Renuart-Bailey-Cheely Lumber and Supply Co. v. Hall, 26......
-
Miami-Dade County v. Coral Bay Section C
...So.2d 515 (Fla. 3d DCA 1976); Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976); Espinosa v. Racki, 324 So.2d 105 (Fla. 3d DCA 1975); Plotkin v. Deatrick Leasing Co., 267 So.2d 368 (Fla. 3d DCA 1972); Renuart-Bailey-Cheely Lumber and Supply Co. v. Hall, 26......
-
Dunn v. Jo Ann Taube Realty, Inc., 80-1882
...North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); McAlice v. Kirsch, 368 So.2d 401 (Fla. 3d DCA 1979); Espinosa v. Racki, 324 So.2d 105 (Fla. 3d DCA 1975); Rubin v. Baker, 276 So.2d 532 (Fla. 3d DCA 1973). Accordingly, the order under review is reversed with directions to vaca......