MARGUERITE J. WELLS AND JOHN WELLS, HER HUSBAND, APPELLANTS,
v.
ELIZABETH MICHAUD, GERALD MICHAUD, ETC., ET AL., APPELLEES
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The court reversed a trial court's dismissal of a personal injury claim, holding that the dismissal was improper on both grounds cited: failure to timely prosecute and failure to serve an indispensable party.
The court held that dismissal for failure to prosecute was improper because at least two of the four incidents of activity constituted affirmative acts directed toward disposition of the case. The court also held that dismissal based on failure to serve the insurance carrier was improper because although failure to join an indispensable party may be grounds for dismissal, mere inability to timely serve such a party is not, and service was properly attempted pursuant to the applicable statute.
[1] Dismissal for failure to prosecute is improper when record activity demonstrates affirmative steps toward case disposition within the year preceding the motion to dismiss…
[2] A statute prohibiting the joinder of an insurance carrier does not apply retroactively to causes of action that arose before its enactment.
Previewing 2 of 4 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 question is whether one or more of those incidents constituted an affirmative act directed toward disposition of the case. See Bair v. Palm Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980). Here, as in Bair, at least two of the incidents are in that category, so dismissal for lack of prosecution was improper.”
Establishes the standard for determining improper dismissal for lack of prosecution and applies it to find the dismissal was improper here.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWells filed a personal injury action against Michaud and others. A motion to dismiss was filed on January 21, 1986, based on failure to timely prosecu…
The full statement of facts, procedural history, and disposition for this case are member content.
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HERSEY, Chief Judge.
We are requested to reverse the trial court’s dismissal of a personal injury claim. Dismissal was based upon failure to timely prosecute and failure to effect service of process upon an indispensable party. We reverse.
Dismissal on the first ground stated is governed by rule 1.420(e), Florida Rules of Civil Procedure. The operative motion to dismiss was filed on January 21,1986. The record discloses four instances of record activity during the one-year period directly preceding the filing of the motion. The question is whether one or more of those incidents constituted an affirmative act directed toward disposition of the case. See Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980). Here, as in Bair, at least two of the incidents are in that category, so dismissal for lack of prosecution was improper. The next question is whether the action was nevertheless properly dismissed because an indispensable party had not been served. We need not extensively treat the propriety of joinder and service upon defendants’ insurance carrier. At the time the cause of action arose, section 627.-7262, Florida Statutes, prohibiting joinder of the insurance carrier, had not been enacted. This statute does not apply retroactively, therefore direct joinder of the insurance carrier is proper under these facts. See VanBibber v. Hartford Accident & Indemnity Insurance Co., 439 So. 2d 880 (Fla.1983). See also Osborne v. Elizabeth Massey Investment Corporation, 467 So. 2d 1095 (Fla. 4th DCA 1985). Additionally, service was properly perfected pursuant to section 48.151(3), Florida Statutes (1985).
The record is not clear whether any of the individual defendants/insureds have been served with process. It is clear, however, that service has been attempted on more than one occasion. While failure to join an indispensable party is grounds for dismissal, the mere inability to timely serve such a party is not.
While the issues we treat here do not follow the lead of either of the parties’ appellate briefs, we think the correct posture of the case is as we have defined it. We reverse and remand for further proceedings.
REVERSED AND REMANDED.
GUNTHER, J., and RIVKIND, LEONARD, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ara Williams VanBIBBER v. Hartford Accident & Indem. Ins. Co., 439 So. 2d 880 (Fla. 1983)
- Bair v. Palm Beach Newspapers, Inc., 387 So. 2d 517 (Fla. 4th DCA 1980)
- J.H. Dowling, Inc. v. Carlton Sheffield and Redia T. Sheffield, 467 So. 2d 1095 (Fla. 1st DCA 1985)