JEFF ALLEN WILSON, APPELLANT,
v.
OSCAR KANTER, APPELLEE
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The Florida District Court of Appeal affirmed summary judgment against a plaintiff who filed a personal injury suit one day after the statute of limitations expired, holding that the statute of limitations was not tolled by the defendant's absence from Florida because the defendant was amenable to substituted service of process as a nonresident motor vehicle owner.
The statute of limitations was not tolled. Because the defendant-nonresident was amenable to substituted service of process under Florida law, he was not a nonresident within the contemplation of the tolling statute, and the plaintiff was barred by the statute of limitations when she failed to file suit within the prescribed time period.
[1] A statute of limitations is not tolled by a defendant's absence from the state if the defendant is amenable to substituted service of process.
[2] A defendant who is amenable to service of process under Florida Statute § 48.171 is not considered absent from the state for purposes of tolling the statute of limitation…
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Join FLexlaw to unlock all legal intelligence“and if after the cause of action shall have accrued he departs from the state, the time of his absence shall not be part of the time limited for the commencement of the action.”
The text of Florida Statute § 95.07 cited by the plaintiff to support his argument that the statute of limitations should be tolled.
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Join FLexlaw to unlock all legal intelligenceA motor vehicle accident occurred on June 19, 1969. The defendant-appellee was a Florida resident at the time but later became a nonresident. The plai…
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MORROW, RUSSELL O., Associate Judge.
This is a timely appeal by the plaintiff-appellant from a final summary judgment for the defendant-appellee in a personal injury action arising out of a motor vehicle accident which occurred on June 19, 1969. Suit was filed June 20, 1973 one day after the Statute of Limitations had run. The appellee was a resident of Florida at the time of the accident but later became a nonresident.
The question presented is whether the Statute of Limitations was tolled by reason of the absence of the defendant from the State of Florida. The trial court entered final judgment for the defendant, holding the statute was not tolled.
Florida Statute § 95.07 (now repealed) provided,
“ • • • and if after the cause of action shall have accrued he departs from the state, the time of his absence shall not be part of the time limited for the commencement of the action.”
The plaintiff contends said Statute is clear and unambiguous and does toll the time of limitation within which an action may be brought. When another statute comes into play, the effectiveness of each on the other must be determined. In this case Florida Statute 48.171 “Service on nonresident motor vehicle owners, etc.” is applicable. In Matthews v. Matthews, 177 So. 2d 497 (Fla.App.2d, 1965), a fraud action, the court held that the defendant’s absence from the state did not toll the running of the statute of limitations because she was amenable to substituted service of process. Dibble v. Jensen, 129 So. 2d 162 (Fla.App. 3d, 1961), holds that when defendant became a nonresident of Florida she was amenable to service of process and the statute of limitations was not tolled. However, the complaint herein was not filed within the statutory time. In an earlier case Roess v. Malsby Co., 69 Fla. 15, 67 So. 226 (1915), the court held that if notice of action can be served on a nonresident person or corporation such person or corporation is not a nonresident as contemplated by the statute in question. The plaintiff did not file suit within the statute of limitations and was barred thereby.
AFFIRMED.
WALDEN, C. J., and DOWNEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Matthews v. Olive M. Matthews & Soft Water Laundry, Inc., 177 So. 2d 497 (Fla. 2d DCA 1965)
- Roess v. The Malsby Co., 69 Fla. 15 (Fla. 1915)
- Dibble v. Sid W. Jensen and Ruth Mark Jensen Cresse, 129 So. 2d 162 (Fla. 3d DCA 1961)