ADELLE L. MILTON, APPELLANT,
v.
IRVIN W. LANDERS AND ARNICA MUTUAL INSURANCE COMPANY, ETC., APPELLEES
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A Florida appellate court reversed a summary judgment in a negligence action arising from an automobile accident, holding that the trial court improperly granted summary judgment when material facts regarding the defendant's residency status and amenability to service of process remained in dispute, which were crucial to determining whether the statute of limitations had run.
Summary judgment was improper because material facts remained in dispute—specifically, whether defendant Landers was a Florida resident and whether he was amenable to service of process. The court held that a defendant's absence from Florida tolls the statute of limitations only if the defendant is not amenable to service of process; a movant for summary judgment must adequately demonstrate the nonexistence of all genuine issues of material fact.
[1] A statute of limitations is not tolled by a defendant's absence from the state if jurisdiction over the defendant can be obtained without personal delivery of the summons…
[2] A defendant who commits a tortious act within the state is amenable to process, and the statute of limitations is not tolled by their absence from the state, even if thei…
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Join FLexlaw to unlock all legal intelligence“We are unable to find adequate support in the record to demonstrate that there is no genuine issue of material fact involved in this case. Specifically, the record does not adequately show whether or not the defendant-appellee Landers was a resident of Florida.”
Establishes the core defect in the summary judgment—the movant failed to show absence of material factual disputes regarding residency.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAn automobile accident occurred on October 3, 1970 in Lake Worth, Florida. The plaintiff filed a complaint on October 1, 1975—nearly five years later.…
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DOWNEY, Chief Judge.
On October 1, 1975, appellant filed a complaint against appellees for damages arising out of an automobile accident which occurred in Lake Worth, Florida, on October 3, 1970. After appellant filed an amended complaint, appellees filed an answer which included an affirmative defense of the statute of limitations. Appellees then filed a motion for summary judgment, without filing any proof in support of the motion. Appellant filed opposing affidavits containing, for the most part, incompetent statements. The trial judge granted summary judgment for appellees and appellant perfected this appeal.
We are unable to find adequate support in the record to demonstrate that there is no genuine issue of material fact involved in this case. Specifically, the record does not adequately show whether or not the defendant-appellee Landers was a resident of Florida. Landers’s residential status is crucial to the outcome of appellees’ motion for summary judgment, for if at the time of the accident Landers was not a resident of Florida, or he became a nonresident after the accident, or he has been concealing his whereabouts since the accident, then he would have been subject to substituted serT vice of process under Section 48.171, Florida Statutes (1969); and the statutory period for appellant’s filing of a complaint may well have expired. On the other hand, if Landers was a resident of Florida throughout the period between the date of the accident and the filing of the original complaint, and if he has not been concealing his whereabouts, the periods of his absence from the state would have tolled the running of the statute of limitations and the statutory period may well not have expired. Section 95.07, Florida Statutes (1969). Since Landers’s residential status was in doubt, appellees, as the movants for summary judgment, failed to adequately demonstrate the nonexistence of all genuine issues of material fact.
Appellees contend that the filing of a complaint tolls the running of statutes of limitation, and since appellant could have filed suit at any time during the four year period in accordance with Section 95.11(4), Florida Statutes (1969), appellant’s failure to file a complaint within four years of the accident bars appellant from maintaining her action. We disagree. While Dibble v. Jansen, 129 So. 2d 162 (Fla. 3d DCA 1961), seems to support appellees’ position, we cannot, for the reasons set forth in Friday v. Newman, 183 So. 2d 25 (Fla. 2d DCA 1966), accept that position. As the Friday court pointed out, a defendant’s absence from the state of Florida tolls the applicable statute of limitations only if the defendant is not amenable to the service of process. In the present case, appellees did not demonstrate that Landers was not amenable to the service of process during the interval between the accident and the filing of appellant’s original complaint. As indicated above, this failure required denial of appellees’ motion for summary judgment.
Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.
REVERSED and REMANDED.
CROSS, J., and SCHWARTZ, ALAN R., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Friday v. Newman, 183 So. 2d 25 (Fla. 2d DCA 1966)
- Dibble v. Sid W. Jensen and Ruth Mark Jensen Cresse, 129 So. 2d 162 (Fla. 3d DCA 1961)