Finkel Outdoor Products, Inc. v. Lasky
| Decision Date | 27 July 1988 |
| Docket Number | No. 87-3229,87-3229 |
| Parties | 13 Fla. L. Weekly 1793 FINKEL OUTDOOR PRODUCTS, INC., Appellant, v. Marie S. LASKY, Winding Creek Condominium Corp., and Cornerstone Management, Inc., Appellees. |
| Court | Florida District Court of Appeals |
David J. Abbey and Brian W. Reynolds of Fox & Grove, Chartered, St. Petersburg, and Sharon Lee Stedman of Rumberger, Kirk, Caldwell, Cabaniss, Burke & Wechsler, Orlando, for appellant.
J. Avril of Perenich & Carroll, P.A., Clearwater, for appellees Marie S. Lasky and Robert Lasky.
Appellant, Finkel Outdoor Products, Inc., appeals the denial of its motion to set aside a default entered against appellant. We reverse.
Appellant was first made a party to the action below when it was named a defendant in a second amended complaint filed after a year and a half of active litigation on the original complaint and the first amended complaint. Appellant, a foreign corporation, was served by service on its registered agent on April 20, 1987. On May 1, 1987, appellant forwarded the complaint to its liability insurance carrier, Royal Insurance Company (Royal), with a cover letter requesting Royal to defend on appellant's behalf. On May 4, 1987, an employee of Royal in New Jersey spoke by telephone with an employee of appellee Lasky's attorneys and obtained a fifteen day extension of time until May 25, 1987, to file defenses on behalf of appellant. On May 7, 1987, Royal's New Jersey office mailed the complaint to an adjuster in its Tampa office with instructions to procure counsel and defend on appellant's behalf. Royal's Tampa adjuster unilaterally and mistakenly concluded that appellant was in fact not a named defendant and need not appear and defend. Appellant was not a named defendant in the caption or style of the second amended complaint, but was named in the body of the complaint. Lasky's attorneys defaulted appellant on June 8, 1987, without any further contact with or notice to either Royal or appellant. Royal's Tampa adjuster subsequently learned that a default had been entered. A notice of appearance was filed by attorneys for appellant on June 15, 1987, and on June 26, 1987, appellant's attorneys filed its motion to set aside default. Another of the principal defendants, Winding Creek Condominium Corporation (Winding Creek), though served with the second amended complaint on April 2, 1987, did not respond until September 15, 1987, when it filed a motion to dismiss. The trial court on September 16, 1987, denied appellant's motion to set aside default on the stated basis of appellant's failure to demonstrate excusable neglect. Appellant set forth a meritorious defense and acted promptly and diligently to set aside the default when it was discovered. No prejudice would have resulted to appellee Lasky since another of the defendants (Winding Creek) did not respond until three months after the default was entered against appellant. There was no attempt to default...
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