11 Fla. L. Weekly Supp. 163b
Insurance — Personal injury protection — Motion for default based on defendant’s failure to file answer to amended complaint within 10 days of its filing denied
SEMINOLE CHIROPRACTIC CENTER as assignee of Cedric Church, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 19th Judicial Circuit in and for Seminole County. Case No. 02-SC-3514. December 1, 2003. Donald L. Marblestone, Judge. Counsel: Lee Jacobson. George Milev, Adams, Blackwell & Diaco, P.A., Tampa.
ORDER ON PLAINTIFF’S MOTION FOR DEFAULT
This Cause having come before the Court on November 7, 2003 on Plaintiff’s Motion for Default, Plaintiff and Defendant having appeared through counsel, having presented arguments, and this Court having been duly advised in the premises, the Court hereby ORDER, ADJUDGE and FIND AS FOLLOWS:
1. The Plaintiff, Seminole Chiropractic, as assignee of Cedric Church, filed this Personal Injury Protection Lawsuit to recover payment for medical bills submitted to Defendant, Progressive Express Insurance Company.
2. On May 9, 2003, Plaintiff filed a Motion to Amend Complaint to Add Count for Declaratory Action.
3. On August 18, 2003, upon joint stipulation by the parties, the Court entered an Agreed Order granting Plaintiff’s Motion to Amend Complaint.
4. Plaintiff’s Amended Complaint was deemed filed on August 18, 2003, according to said Order.
5. Defendant did not file a responsive pleading to the Amended Complaint within 10 days of its filing.
6. On September 2, 2003, Plaintiff filed a Motion for Default.
7. On September 3, 2003, Defendant filed an Answer to Plaintiff’s Amended Complaint.
8. Both parties had engaged in continued discovery, motions and calendar calls during the above mentioned time frames.
9. It would be an abuse of discretion and a reversible error for the Court to enter a default based on Defendant’s oversight to file a timely Answer to an Amended Complaint in a case with ongoing litigation since 2002.
10. Plaintiff’s Motion for Default is DENIED.
* * *