Olympus Insurance Company v. Maikel Hernandez ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
OLYMPUS INSURANCE COMPANY,
Petitioner,
v.
MAIKEL HERNANDEZ,
as Personal representative of the Estate of Yaimi Gandul,
Respondent.
No. 4D15-1060
[August 19, 2015]
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Thomas M. Lynch, Judge; L.T. Case No.
CACE14-004731 05.
Matthew C. Scarfone of Colodny Fass, P.A., Fort Lauderdale, for
petitioner.
Scot Strems of The Strems Law Firm, P.A., Coral Gables, for
respondent.
PER CURIAM.
The trial court departed from the essential requirements of law when it
granted the motion for substitution of party and denied the motion to
dismiss based upon counsel’s unsworn assertions of excusable neglect.
Steinhardt v. Intercondominium Grp. Inc., 771 So. 2d 614, 614 (Fla. 4th
DCA 2000). The petition for writ of certiorari is granted, and the trial
court’s February 19, 2015 order is quashed. On remand, the trial court is
directed to conduct an evidentiary hearing to determine whether the
untimely filing of the motion for substitution of party was caused by
excusable neglect. Id. at 615.
STEVENSON and FORST, JJ., concur.
CONNER, J., dissents with opinion.
CONNER, J., dissenting.
I dissent and agree with the reasoning expressed by Judge Warner in
her dissent in Volkswagen Group of America, Inc. v. Harmon, 110 So. 3d
536 (Fla. 4th DCA 2013).
* * *
Not final until disposition of timely filed motion for rehearing.
2