In the case of Nachelle Moss v. Estate of Curt Hudson, Case Number 5D17-3356, Florida’s Fifth DCA held that a plaintiff’s complaint should allege the jurisdictional grounds for substituted service of process under section 48.171, Fla. Stat. in order to invoke substituted service of process on Florida’s Secretary of State.
Substitute Service Of Process In Florida For Car Accidents
In Florida, section 48.171, allows someone who has been injured in a car accident to serve the Secretary of State with their lawsuit in the event that the person who caused the accident moves out of the state or conceals his location. Section 48.171, Fla. Stat. states:
Any nonresident of this state … or any resident of this state, being the licensed operator or owner of … any motor vehicle under the laws of this state, who becomes a nonresident or conceals his or her whereabouts, by the acceptance or licensure and by the operation of the motor vehicle, either in person, or by or through his or her servants, agents, or employees … within the state constitutes the Secretary of State his or her agent for the service of process in any civil action begun in the courts of the state against such operator or owner … of the motor vehicle, arising out of or by reason of any accident or collision occurring within the state in which the motor vehicle is involved.
Facts Underlying This Case
With that being said, Hudson’s estate sued Ms. Moss for negligence from a car accident where her car struck Mr. Hudson on a bicycle. The accident resulted in Mr. Hudson’s death. The lawsuit alleged that Ms. Moss was a resident of Hernando County.
The case opinion says that substituted service of process was done after several unsuccessful attempts to serve Ms. Moss personally with the lawsuit.
Thereafter, Ms. Moss’s insurance company provided her with a defense attorney who filed a motion to quash the service of process saying that it was not proper (I assume because her insurance company had contact with her somewhere). The trial judge, knowing that defense counsel was funded by an insurance company, denied the motion to quash and found it compelling that Ms. Moss was represented by counsel, was aware of the case, and was accountable to herself of any due process.
Form Over Substance
On appeal, the Fifth DCA reversed the trial judge because “[a]ctual knowledge of a suit does not cure insufficient service of process” and because Hudson’s complaint did not alleged whether Ms. Moss was 1) a nonresident, 2) subsequently moved out of the state, or 3) was a resident who was concealing whereabouts.
It is one thing to require a lawsuit against a nonresident to allege that the person you are suing to be a resident of another state in order use substituted service of process. However, virtually no plaintiff filing a lawsuit will know at the time that they file their car accident lawsuit that the person who hit them has moved to another state or will intentionally conceal their location until you try to serve that person with the lawsuit.
So how can the courts require a plaintiff to allege such a jurisdictional exception in the original lawsuit itself? I would think that the plaintiff likely filed an affidavit supporting the jurisdictional allegations necessary under section 48.171 in order to obtain an “alias summons” for service on the Secretary of State (I assume that the plaintiff did not simply try to skip regular service of process altogether).
Regardless, it appears that the Fifth DCA wants plaintiffs using substituted methods of service to have alleged the jurisdictional allegations in the initial complaint of the lawsuit. What appears to be missing here is that the trial court later allowed the plaintiff to file an amended lawsuit, presumably to include the required jurisdictional allegations for substituted service methods. Again, it seems that amending the lawsuit to say the same thing that an affidavit needed to obtain an alias summons is unnecessary considering that a plaintiff would need permission from the court to amend the lawsuit anyway. This seems to add significant judicial work to an already busy court docket when such work is not truly necessary to achieve fairness in the court system.
Litigation Is The Insurance Company’s Crown Jewel
It is well known that insurance companies are behind many legal cases. Without funding from an insurance company, no rational person would debate many questions of law because they simply defy reason.
For instance, as in this case, why would Ms. Moss spend her own money to pay an attorney to say that she wasn’t served properly with a lawsuit when she was aware of the lawsuit? The answer is that no sane person would consider that a reasonable way to spend money because it doesn’t change the end result. Instead, challenging service of process under such circumstances would merely just delay the inevitable lawsuit that is coming at you anyway.
On the other hand, litigation is a zero sum game played by insurance companies for profit. When insurance companies can discourage and deter someone with a claim by systematic claim denials, delays, and by ultimately defending a lawsuit, a frustrated plaintiff (who is a real person) will often take less just to avoid the hassle.
This case is a victory for insurance because it unnecessarily puts yet another hurdle in front of legitimately injured plaintiffs. To understand why, we need to go back and examine the idea of what service of process is supposed to be. Service of process was intended to ensure that judgments are not entered against people who are unaware that they have been sued.
In this case, the insurance company did not dispute that Ms. Moss was aware that she was being sued. Instead, the insurance company’s gripe was that the plaintiff didn’t say the “magic words” in order to use substituted service of process. This case could have been completely different if no one knew where Ms. Moss was (even her insurance company). However, even under those circumstances, a plaintiff who has been legitimately injured should be able to access the liability coverage of an insurance company.
The insurance company will say that they need cooperation from their insured in order to defend the lawsuit. I suggest that they do not as the insurance company is required to do their own investigation into the facts and come to their own conclusions about whether their insured is going to be held legally responsible or not (regardless of whether the insured’s story conflicts with the evidence).
This is why “awareness” of being sued should be enough under these circumstances. There may very well be other circumstances where it is not enough.