HomeMy WebLinkAbout1877 t
c
t
• ~ • t
•
liability for compensatory damages to the
penalty stated in its bond cannot seek re-
lief from execution in the full amount of
compensatory damages awarded Plaintiff,
such defense having been waived.
Appellant-suggests five-points_on appeal wherein it
is contended that the motion for stay should not have been granted
because the questions raised were concluded by the final judgment
of December 1976 and there was neither allegation nor proof of
good cause to grant the stay of execution as required by the rule. .
Appellee has cross-appealed and contends the trial court erred in
not staying the entire judgment against Aetna except for $3,000.
In our opinion the trial court erred fn granting the .
motion for stay as to any amount. Aetna-with full and adequate -
notice thereof allowed the trial proceedings to be-concluded with-_______~
out filing any pleadings or appearing therein in any fashion. If
it had a defense to the suit, either as to liability or the amount
of damages, it was obligated to plead and prove it. To allow
Aetna to assert its limited coverage long after judgment and the
time for appeal had passed would allow a defaulting insurance car-
rier in a similar delinquent situation to come forward and contend
that as a matter of fact it really didn't have any coverage at all
for the incident in question. We have not overlooked appellees'
reliance upon Moreno v: Aldrich, 113 So.2d 406 (Fla. 2dDCA 1959)
and Fitzgerald v. Addison, 287 So.2d 151 (Fla. 2dDCA 1973). They
are easily distinguishable from the facts of this case.
Apparently_ the basis upon which Aetna contends that
the execution should be stayed is that Ewing's lawyer, Sharkey,
represented to Aetna he would provide a defense for Aetra.l Shar-
key never appeared as counsel in this case, nor did he corroborate
the contention in Aetna's notion. Thus, nothing alleged in Aetna's
Neg igence o course wi not support t e setting as e o
default judgment absent exigent circumstances. Westinghouse Credit
Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4thDCA 1978;
Allen v. WriRtit, 350 So.2d 111 (Fla. 1stDCA 1977); Sun Finance Corp.
v. Friend, 139 So.2d 484 (Fla. 3dDCA 1962); White v. Spears,. 123 So_
2d 639 (Fla. 3dDCA 1960).
-3-
- B~ 3~S ~~i877