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Professional Liability

Legal Updates for Florida Coverage and Property Litigation

Fourth District Court of Appeals Rules in Favor of Homeowners, Citing Trial Court Calendaring Error.

Howard Roy Housen and Valerie Housen v. Universal Property & Casualty Insurance Company, Fla. 4th DCA, No. 4D2023-2720, January 22, 2025

March 1, 2025

by Carolin A. Pacheco

The Fourth District Court of Appeals found that the homeowners demonstrated excusable neglect and the trial court erred when it denied their motion to vacate the judgment.

Notably, in the underlying litigation, the homeowners filed a complaint against their homeowner’s insurance company for breach of contract. The parties agreed to non-binding arbitration under Florida Rule of Civil Procedure 1.800 and section 44.103, Florida Statutes (2020). After the arbitrator filed its decision in favor of the insurance carrier, the homeowners failed to file a notice of rejection of the arbitration decision and requesting trial within 20 days per Rule 1.820(h). Rather, they filed a motion for new trial 29 days after the arbitrator filed its decision. 

The untimely filing was not addressed for another 16 days, through their second motion for trial de novo. In their supportive affidavit, the homeowners explained that they failed to comply with the filing deadline due to clerical error; the deadline was not properly calendared. The circuit court rejected the argument and entered summary judgment in favor of the insurance carrier.

The Fourth District Court of Appeal recognized the precedent established Polymer Extrusion Tech. Inc. v. Glasshape Mfg., Ltd., 374 So. 3d 34, 38 (Fla. 4th DCA 2023) and stated that Florida Rule of Civil Procedure 1.442(c)(3) states: “[a] motion to vacate such a judgment ‘should be considered on its merits and in light of case law pertaining to motions to vacate for excusable neglect . . . .’” Id. (quoting Preferred Mut. Ins. Co. v. Davis, 629 So. 2d 259, 261 (Fla. 4th DCA 1993)). Excusable neglect is found “where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.” Quest Diagnostics, Inc. v. Haynie, 320 So. 3d 171, 175 (Fla. 4th DCA 2021)(quoting Somero v. Hendry Gen. Hosp., 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985)).

In its decision, the Fourth District Court of Appeal qualified the legal secretary’s calendaring error as excusable neglect. 

 

Legal Update for Florida Coverage & Property Litigation – March 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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