DANIEL ROBINSON AND EXCEL INSURANCE CO., APPELLANTS,
v.
DAVID CORNELIUS, APPELLEE

Fla. 4th DCA | 1979-12-05
No. 79-1279
MOORE and GLICKSTEIN, JJ., concur.
377 So. 2d 776 Florida District Court of Appeal, Fourth District (1979) Caution
Cited by 22 cases

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Synopsis

In a tort action arising from an automobile accident, the court reversed the trial court's order permitting substituted service of process on defendant Robinson under Florida's long-arm statute, finding that the plaintiff failed to conduct an adequate and diligent search for the defendant's whereabouts before attempting service.


Holding

The court held that the plaintiff failed to meet the strict burden of demonstrating diligent search and inquiry required for substituted service of process. Six or seven unsuccessful attempts to serve the defendant at a single address, combined with failure to investigate an alternative address known to exist, do not constitute adequate diligence or establish that the defendant was concealing his whereabouts.


Headnotes

[1] A party seeking to effect substituted service of process bears the burden of presenting facts that clearly justify the statute's applicability.

[2] Statutes providing for substituted service of process must be strictly construed.

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Key Quotes

“One seeking to effect substituted service of process has the burden of presenting facts which clearly justify the applicability of the statute.”

Establishes the strict burden on plaintiff seeking substituted service under Florida law.

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Facts & Procedural History

Plaintiff Cornelius sued defendant Daniel Robinson for automobile accident injuries. Service was effected on Robinson's insurance company through the …

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Opinion of the Court
HERSEY, Judge.

HERSEY, Judge.

This was an action to recover damages for injuries resulting from an automobile accident. Service of process was effected upon appellant Daniel Robinson’s insurance company by service on the Insurance Commissioner of the State of Florida. Appellee attempted to perfect service on the individual appellant pursuant to the provisions of Sections 48.161 and 48.171, Florida Statutes (1977) on the grounds that Robinson was avoiding service of process. The trial court entered an order on May 1, 1979 finding that sufficient evidence appeared in the record to support the conclusion that adequate search and inquiry had been made as to the whereabouts of Robinson and that Robinson was either concealing his whereabouts or residing without the State. The court found service under the long-arm statute proper and gave appellant Robinson thirty days from the date of the order within which to file a responsive pleading. This appeal was taken from that order. The sole question presented by this appeal is the sufficiency of appellee’s search and inquiry to determine the whereabouts of appellant Robinson. Appellee obtained an address (533 N.W. 19th Avenue, Fort Lauderdale, Florida), from the Florida Department of Motor Vehicles and unsuccessfully attempted to have process served at that address. Subsequently, appellee made another inquiry to the Florida Department of Motor Vehicles, but received the same address. Appellee then served Interrogatories on appellant, Excel, the answers to which disclosed that Excel had made contact with appellant Robinson at a different address in Fort Lauderdale, at 1557 West Sunrise Boulevard. There is no indication in the record that appellee ever made any effort to determine whether appellant Robinson might have been at this second address. As a matter of fact, appellee requested one Lomazzo to investigate the whereabouts of defendant Robinson in June of 1978. The affidavit of Lomazzo, dated January 15, 1979, disclosed that investigation was made at the 533 address, conclud [*DCCCLVIII] ing that appellant Robinson no longer resided there. Subsequently, appellee’s counsel went to the same address and gave an affidavit to the effect that appellant Robinson did not reside there. On two different occasions, at appellee’s directions, the Secretary of State attempted service of process by mail to the 533 address.

Aside from the two inquiries to the Florida Department of Motor Vehicles and various attempts to locate appellant Robinson at the 533 address, the record does not disclose any meaningful search or inquiry as to the whereabouts of appellant Robinson. There is not even an allegation that the telephone book was checked or that the address disclosed in the Answers to Interrogatories was investigated. In short, appellee, possessed of the knowledge that appellant Robinson did not reside at the 533 address, on six or seven occasions took some action, the success of which was predicated upon appellant Robinson’s continued residence at the 533 address.

In Bird v. International Graphics, Inc., 362 So. 2d 316, 317 (Fla. 3rd DCA 1978), addressing this issue, the court said:

One seeking to effect substituted service of process has the burden of presenting facts which clearly justify the applicability of the statute. AB CTC v. Morejon, 324 So. 2d 625 (Fla.1975). The failure of the sheriff and a process service to locate the defendant at three addresses furnished by the plaintiff is not enough to establish concealment. The record does not show by affidavit or otherwise that sufficient search and inquiry was actually made to ascertain that the defendant was concealing his whereabouts. Cf. Fleischman v. Morris, 260 So. 2d 278 (Fla. 3d DCA 1972).

If failure to locate the defendant at three addresses is not sufficient to establish concealment, then how much more effective are six or seven such attempts at one address?

In Leviten v. Gaunt, 360 So. 2d 112, 113 (Fla. 3rd DCA 1978), the Court stated:

A statute providing for substituted service must be strictly construed, and the party seeking to effect service under it has the burden of presenting facts which clearly justify its applicability. Young Spring Wire Corporation v. Smith, 176 So. 2d 903 (Fla.1965), and cases cited therein. Where neither the affidavit nor the record reveal appropriate diligence in seeking to find the party sought to be served, nor in establishing the fact that such party was indeed attempting to conceal himself, the mere filing of an affidavit alleging concealment is an insufficient basis upon which to predicate substituted service. Fleischman v. Morris, 260 So. 2d 278 (Fla. 3d DCA 1972).”

A statute for constructive service of process must be strictly complied with, and the burden is on the plaintiff seeking to obtain service under it to show strict compliance. Callaghan v. Callaghan, 337 So. 2d 986 (Fla. 4th DCA 1976). The plaintiff must reasonably employ knowledge at his command, so that, if possible, the defendant will have notice of the suit. McAlice v. Kirsch, 368 So. 2d 401 (Fla. 3rd DCA 1979).

Where the failure of delivery of process is not caused by the defendant addressee’s rejection of the mail, and where such failure might have resulted from a cause not chargeable to the defendant, then the statutory requirements for constructive service of process have not been met and the service of process is therefore insufficient. Turcotte v. Graves, 374 So. 2d 641 (Fla. 4th DCA 1979).

Under the circumstances, it is clear that appellee did not even minimally sustain the burden imposed by law of diligent search and inquiry sufficient to justify substituted service of process. The Order on Defendant’s Motion to Dismiss of May 1,1979 is in that respect erroneous, and we therefore reverse with instructions to enter an order granting the appellant’s motion to dismiss.

REVERSED AND REMANDED.

MOORE and GLICKSTEIN, JJ., concur.


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Citator

Cited By (20 total)

  • Demars v. Vill. OF Sandalwood Lakes Homeowners Ass'n, Inc., 625 So. 2d 1219 (Fla. 4th DCA 1993)
    …ess are insufficient to prove diligent search. See e.g., Tulpere v. Duval Fed. Sav. & Loan Ass’n, 548 So. 2d 1190 (Fla. 4th DCA 1989); Hobe Sound Indus. Park, Inc. v. First Union Nat’l Bank, 594 So. 2d 334 (Fla. 4th DCA 1992); Robinson v. Cornelius, 377 So. 2d 776 (Fla. 4th DCA 1979). The problem in this case occurs as to whether a factually insufficient affidavit renders the judgment entered in reliance thereon absolutely void or merely voidable. It is our conclusion that it renders the judgment voidable.…
  • Wyatt v. Haese, 649 So. 2d 905 (Fla. 4th DCA 1995)
    …, no conclusion can be drawn that the failure to deliver process was caused by the defendant rejecting the mail. See Lendsay v. Cotton, 123 So. 2d 745 (Fla. 3d DCA 1960); Turcotte v. Graves, 374 So. 2d 641 (Fla. 4th DCA 1979); Robinson v. Cornelius, 377 So. 2d 776 (Fla. 4th DCA 1979). Consequently, the statutory requirement was not met as no return receipt for the certified mail was obtained, nor can an inference of intentional rejection be made from the record. Further, appellees failed to file an affidavit…
  • Gans v. Heathgate-Sunflower Homeowners Ass'n, Inc., 593 So. 2d 549 (Fla. 4th DCA 1992)
    …l court did not have the authority to enter the appealed order or the underlying orders and judgment. It is a fundamental principle of law that a plaintiff must strictly comply with a service of process by publication statute. Robinson v. Cornelius, 377 So. 2d 776, 778 (Fla. 4th DCA 1979). An order of publication based on a sworn statement which does not comply with the statute fails to confer jurisdiction. Taylor, 358 So. 2d at 70. Section 49.041, Florida Statutes (1987) reads in pertinent part: Sworn state…

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