M.W. v. SPCP Group V, LLC, ___ So. 3d ___, 40 Fla. L. Weekly D336 (Fla. 3d DCA February 4, 2015)
The plaintiff’s lawyer in a personal injury case made two demands for the defendant’s policy limits. The defendant’s lawyer replied in writing and spoke to the plaintiff’s lawyer by telephone. The plaintiff’s lawyer regarded the defendant’s lawyer as uncooperative and filed suit. When the defendant did not file any paper in the action, the plaintiff’s lawyer applied for a clerk’s default without notice to the defendant. After the default was entered, the defendant’s lawyer called the plaintiff’s lawyer to determine whether the defendant’s insurance company was defending the case. The plaintiff’s lawyer instructed his assistant to tell the defendant’s lawyer to contact the insurance company and to say that they did not know what the insurance company was doing. After this exchange, the plaintiff’s lawyer proceeded to trial on the issue of damages, and the jury returned a verdict of $1,250,000. The trial court subsequently granted the defendant’s motion to vacate the default and default final judgment based upon the plaintiff’s failure to provide notice of its application for default, and the appellate court affirmed because the trial court did not commit a gross abuse of discretion. “[N]otice of an application for default should always be served when the plaintiff is aware that a defendant is being represented by counsel who has expressed an intention to defend on the merits.” This rule applies even if the “opposing party is uncooperative, neglectful, or incompetent.” Judge Logue wrote the majority opinion, Judge Shepherd wrote a concurring opinion, and Judge Emas wrote a specially concurring opinion.
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