Garvin v. South Carolina Ins. Co.
| Decision Date | 29 June 1988 |
| Docket Number | No. 87-2021,87-2021 |
| Parties | 13 Fla. L. Weekly 1551 Ron GARVIN, Appellant, v. SOUTH CAROLINA INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Robert Goldhagen of Goldhagen & Davis, Tampa, for appellant.
Gerald T. Albrecht of Richard H. Wilson, P.A., Tampa, for appellee.
Ron Garvin was employed by Conda Construction Company as a subcontractor to erect roof trusses and apply the sheeting. During the evening of September 18, 1984, after completion of the day's work, the partially finished structure collapsed. South Carolina Insurance Company satisfied Conda's loss and was subrogated to the claim; it sued Garvin. Garvin was served with the complaint and summons on April 12, 1985. On May 22, 1985, because Garvin had failed to file an appropriate motion or responsive pleading, the clerk entered a default which ultimately ripened into a final judgment entered by the trial court on February 5, 1986. Garvin did not learn of the final judgment until April of 1986, when he was served with a subpoena issued in aid of execution.
Several months later, on September 4, 1986, Garvin's attorney filed a motion, verified by Garvin, for relief from judgment accompanied by an affidavit executed by George Conda. Conda's affidavit exonerates Garvin from responsibility for the wall's collapse and attributes the defect to a source other than Garvin--an obvious meritorious defense. In his verified motion, Garvin asserts that he spoke on several occasions with his insurance broker, Roque, concerning the litigation and was assured it was being taken care of by Aetna Insurance Company. Aetna, however, denied coverage based upon Garvin's failure to comply with the policy's notice provision. The trial court denied the motion for relief from judgment, leaving Garvin indebted in the amount of $12,970.92 plus interest and costs. Garvin appeals from the trial court's order, contending that the default falls within the scope of excusable neglect arising from the failure of his insurance broker, Roque, to notify Aetna of the pending litigation. See Kapetanopoulos v. Herbert, 449 So.2d 947 (Fla. 2d DCA 1984).
We affirm the trial court.
Notwithstanding that the timing of an attack upon a default judgment has been characterized as a factor that "may" be considered in conjunction with the elements of excusable neglect and a meritorious defense, Gibraltar Service Corporation v. Lone And Associates, Inc., 488 So.2d 582, 584 (Fla. 4th DCA 1986), we have consistently...
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