Sportatorium, Inc. v. Kamilar
Sportatorium, Inc. v. Kamilar
Opinion of the Court
The appellant brings this appeal,
The appellee was injured in an altercation at the appellant’s facility in Broward County. As a result of the alleged injuries, he filed the instant suit. Service was perfected on a Lia Damonte, as agent of the appellant, on March 20, 1981. The complaint was given to Gordon Jennings, Comptroller of Sportatorium. He, in turn, sent the complaint and summons to the Adler Agency, where it was received April 1,1981. The documents were returned to Jennings on April 22, with a letter indicating they were no longer insurance agent for the facility. Jennings then learned that Georgetown Agency carried Sportatorium’s coverage. He thereupon forwarded the papers to the Georgetown Agency, which received them on April 28. They were forwarded to Hull & Company, the producing agent, who received them on May 1. Hull & Company then notified the Guaranty National Insurance Company in Englewood, Colorado, which referred the matter to counsel in Dade County.
The appellant contends the trial court erred in denying the motion to vacate, on the ground that under the doctrine of North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962) and its progeny, the appellant has demonstrated both excusable neglect and a meritorious defense. This failure to grant the motion to vacate default constituted a gross abuse of discretion. As stated in North Shore Hospital, Inc. v. Barber, supra, whether a default should be opened must depend on all the facts and circumstances connected with the case. This being so, under the facts of this case, including the time involved, it would appear that the trial court incorrectly determined that the appellant failed to prove excusable neglect, particularly in light of the established policy to liberally set aside defaults. See: Cunningham v. White, 390 So.2d 467 (Fla.3d DCA 1980).
Therefore, we reverse the order denying the motion to vacate the default, with directions to vacate the default and permit the defendant to file its defenses.
Reversed and remanded, with directions.
. The appeal is taken from a non-final order, pursuant to Rule 9.130(a)(3)(C)(iv), F.A.R., and Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla.3d DCA 1981).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.