JOHN E. NETTLES, TRUCK INSURANCE EXCHANGE, AND INCORPORATED CARRIERS, LTD., APPELLANTS,
v.
CORKLEIGH E. WHITE, APPELLEE
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In this jurisdictional dispute, the Florida appellate court held that while valid service was effected on defendant Nettles (an individual employee), service was improper as to two corporate defendants—an insurance company and a trucking company—due to insufficient allegations regarding the insurance contract and a defective affidavit of service.
Valid service was effected on Nettles because the sheriff's affidavit's notation 'FW 35' reasonably indicated the person served was fifteen years of age or older. Service on Truck Insurance Exchange was improper because the complaint failed to allege sufficient facts showing the insurance contract covered a driver or vehicle located within Florida at the time of contracting. Service on Incorporated Carriers, Ltd. was improper because the constable's statement was not sworn to as required by statute.
[1] A trial court has jurisdiction over a nonresident defendant who commits a tortious act within the state.
[2] Personal service of process must be perfected upon nonresidents subject to Florida's long-arm jurisdiction.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the only issue before this court is whether appellee obtained valid service of process over appellants through alias summonses issued under Florida Rule of Civil Procedure 1.070(b)”
Establishes the core jurisdictional question on appeal
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Join FLexlaw to unlock all legal intelligenceAppellee sued appellants—John E. Nettles, Truck Insurance Exchange, and Incorporated Carriers, Ltd.—for damages arising from a motor vehicle collision…
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OTT, Chief Judge.
Appellants contend that the trial court lacked in personam jurisdiction over them and thus erred in denying their motions to quash process or to dismiss. We agree as to appellants Truck Insurance Exchange and Incorporated Carriers, Ltd., and reverse as to them, but we affirm as to appellant Nettles.
Appellee sued appellants in a three-count complaint seeking damages arising out of a motor vehicle collision which occurred in Florida. Appellee concedes that his initial attempt to effect service of process upon the three nonresident appellants was improper and, therefore, failed to confer jurisdiction upon the trial court. Thus, the only issue before this court is whether appellee obtained valid service of process over appellants through alias summonses issued under Florida Rule of Civil Procedure 1.070(b).
The Florida long-arm statute, section 48.193(l)(b), Florida Statutes (1981), confers jurisdiction of Florida courts over one who commits a tortious act within this state. Under section 48.194, Florida Statutes (1981), personal service of process must be perfected upon nonresidents subject to Florida’s long-arm jurisdiction. P.S.R. Associates v. Artcraft-Heath, 364 So. 2d 855 (Fla. 2d DCA 1978).
Appellee’s complaint alleged that Nettles, an employee of Incorporated Carriers, Ltd., committed the tortious acts of negligence, assault, and battery while driving a motor vehicle within the State of Florida. Appellee attempted to serve Nettles by having the sheriff of Cook County, Illinois, deliver the alias summons and a copy of the complaint to any person residing at Nettles’ usual place of abode who was fifteen years of age or older. § 48.194, Fla.Stat. (1981), § 48.031(1), id. The affidavit accompanying the Cook County Sheriff’s return states that service was effected by delivery to “Ms. Nettles, FW 35, a person of his family of the age of 13 years or upwards.”
Nettles contends that this affidavit does not establish that the alias summons and complaint were delivered to a person fifteen years of age or older as required by section 48.031(1). Appellee responds that the notation “FW 35” logically means that Ms. Nettles was “female, white, age 35.” We cannot say that the trial court abused its discretion in concluding that Ms. Nettles was fifteen years of age or older as indicated by the “FW 35” notation.
Appellant Truck Insurance Exchange, who purportedly insured Nettles at the time of the accident, is subject to jurisdiction under section 48.193(l)(d), Florida Statutes (1981), only if it contracted “to insure any person, property, or risk located within this state at the time of contracting.” Because appellee’s complaint failed to allege sufficient facts to show that Truck Insurance Exchange had insured a driver or his vehicle located within the state at the time of contracting, the trial court should have quashed service of process on the insurer. Esberger v. First Florida Business Consultants, Inc., 338 So. 2d 561 (Fla. 2d DCA 1976). We should note that appellee did not try to obtain jurisdiction by serving the Insurance Commissioner as agent for service of process.
The trial court also erred in failing to quash service of process on appellant Incorporated Carriers, Ltd. Section 48.194 requires that the foreign officer serving process on an out-of-state defendant file an affidavit stating the time, manner, and place of service. The statement filed by the constable of Dallas County, Texas, was not sworn to and, therefore, does not satisfy the statutory affidavit requirement.
We AFFIRM the trial court’s order as to appellant Nettles but REVERSE as to appellants Truck Insurance Exchange and Incorporated Carriers, Ltd., and REMAND for further proceedings consistent with this opinion.
GRIMES and SCHOONOVER, JJ., concur.
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Pina v. Simon-Pina, 544 So. 2d 1161 (Fla. 5th DCA 1989)…Gibney v. Smith, 511 So. 2d 1083 (Fla. 5th DCA 1987). Section 48.194 clearly requires that the process server’s affidavit — not merely an acknowledgment — be filed. Barrios v. Sunshine State Bank, 456 So. 2d 590 (Fla. 3d DCA 1984); Nettles v. White, 439 So. 2d 1048 (Fla. 2d DCA 1983); Neff v. Adler, 416 So. 2d 1240 (Fla. 4th DCA 1982). In this case, the notary only asserted that the process server acknowledged he signed the return. He did not require Rogelio to swear that the facts set forth in the return were…
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MacIVOR v. Volvo Penta OF Am., Inc., 471 So. 2d 187 (Fla. 3d DCA 1985)…s served,” failed to comply with Section 48.194, Florida Statutes (1983), is reversed upon a holding that even assuming, arguendo, that such an affidavit must be filed when service is made in another state of the United States, see Nettles v. White, 439 So. 2d 1048 (Fla. 2d DCA 1983) (service in Texas); Palmer Johnson Yachts v. Ray Richard, Inc., 347 So. 2d 779 (Fla. 3d DCA 1977) (service in Wisconsin), [*188] where, as here, process was served and return of process was completed by an official of a country th…
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Ramana Chigurupati and Durgasguthi Chigurupati v. Progressive Am. Ins. Co., 132 So. 3d 263 (Fla. 4th DCA 2013)…quired by section 48.194, the person swearing before the notary must under oath assert that the facts set forth in the document are true” as opposed to “merely declaring] that he executed and signed the document.” Id. Similarly, in Nettles v. White, 439 So. 2d 1048 (Fla. 2d DCA 1983), the Second District held that an “affidavit” accompanying a return of service did not meet the requirements of section 48.194 because it was not sworn to. Id. at 1049. We find Pina and Nettles instructive to this case. It is a f…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Esberger v. First Fla. Bus. Consultants, Inc., 338 So. 2d 561 (Fla. 2d DCA 1976)
- P. S. R. Assocs. v. Artcraft-Heath, 364 So. 2d 855 (Fla. 2d DCA 1978)