Before discussing substituted service of process, it is helpful to understand due process and service of process generally.
Before a court can deprive someone of life, liberty, or property, the affected individual must be afforded due process. Specifically, “Procedural due process requires both fair notice and a real opportunity to be heard.” Keys Citizens for Responsible Gov’t v. Fla. Keys Aqueduct Auth., 795 So. 2d 940, 948 (Fla. 2001) (emphasis added).
A plaintiff starts a lawsuit by filing a complaint. Once a lawsuit has been filed, the court will issue a summons, which explains to the addressee that they have been named as a defendant in a lawsuit and commands the defendant to respond to the complaint within a certain amount of time.
To afford defendants the notice required by due process, the plaintiff then has the complaint and summons personally served on the defendant by a process server. This is called “service of process” and it is the means by which a party is notified that a court is exercising jurisdiction over the particular defendant. The purpose of service of process is to provide proper notice to a defendant so that he is answerable to a claim.
Occasionally, obstinate defendants attempt to evade service, assuming this blocks the lawsuit from going forward. In some cases, this can delay the plaintiff’s lawsuit until service on the defendant is successfully obtained. Fortunately, under certain circumstances, Florida law allows for an alternative form of service, “substituted service,” which is found in Fla. Stat. § 48.161.
“When authorized by law, substituted service of process on a person who conceals his or her whereabouts by serving a public officer designated by law shall be made by leaving a copy of the process with a fee of $8.75 with the public officer. The service is sufficient service on a defendant who has appointed a public officer as his or her agent for the service of process.” Fla. Stat. § 48.161 (emphasis added).
There are several situations in which substituted service is “authorized by law.” One of the most common situations is found Fla. Stat. § 48.171, which allows substituted service when the plaintiff’s claims arise out a motor vehicle accident and the defendant, operator and/or owner of the vehicle that caused the collision, becomes a nonresident or conceals his or her whereabouts.
“Any nonresident of this state, being the operator or owner of any motor vehicle … 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 … within the state constitutes the Secretary of State his or her agent for the service of process in any civil action … against such operator or owner … arising out of or by reason of any accident or collision occurring within the state in which the motor vehicle is involved.” Fla. Stat. § 48.171 (emphasis added).
Before plaintiffs can attempt substituted service through the Secretary of State, they first must have exercised due diligence in trying to locate and serve the defendant which is ultimately unsuccessful. Cross v. Kalina, 681 So. 2d 855, 856 (Fla. 5th DCA 1996). Therefore, it is incumbent upon the plaintiff to diligently seek out the proper address of the defendant and the plaintiff must reasonably employ knowledge at his command, so that, if possible, the defendant will have notice of the suit. Robinson v. Cornelius, 377 So. 2d 776, 778 (Fla. 4th DCA 1979).
The legal test for a diligent search is whether the plaintiff: (1) reasonably employed the knowledge at his command, (2) made diligent inquiry, and (3) exerted an honest and conscientious effort appropriate to the surrounding circumstances to acquire the information necessary to effect personal service on the defendant. Miller v. Partin, 31 So. 3d 224, 228 (Fla. 5th DCA 2010).
Assuming the plaintiff has been unsuccessful, despite due diligence, in locating the defendant, a plaintiff must accurately follow the procedural requirements of Fla. Stat. § 48.161 for substituted service to be effective.
This requires several steps that can be summarized as follows:
(a) The complaint must be amended to allege that the defendant has become a nonresident or that the defendant is concealing his or her whereabouts and plead the statutory basis for invoking § 48.171. If the complaint fails to do so then a motion to quash process can be granted.
(b) The plaintiff must get the clerk to issue a new summons reflecting that the defendant will be served care of his or her designated agent, the Secretary of State.
(c) The plaintiff then sends two copies of the amended complaint and two copies of the newly issued summons to the Secretary of State along with a check for the $8.75 fee and a cover letter indicating what section of the substituted service statute is being utilized.
(d) The plaintiff will then receive a return of service from the Secretary of State, which along with a copy of the complaint and new summons, must be mailed to the defendant via registered or certified mail. See Fla. Stat. § 48.161.
(e) The plaintiff must then file the return receipt, for the papers mailed to the defendant, and an affidavit of counsel indicating compliance with Fla. Stat. § 48.161, on or before the return day of the process or within such time as the court allows.
Since substituted service is the “exception” to the general rule requiring a defendant to be personally served, due process values require strict compliance with the statutory requirements. Monaco v. Nealon, 810 So. 2d 1084, 1086 (Fla. 4th DCA 2002).
In Monaco v. Nealon, 810 So. 2d 1084 (Fla. 4th DCA 2002), the Court held that substituted service was not perfected on the defendant motor vehicle owner or operator. First, the Court found the record reflected no attempt by the plaintiff to serve either defendant by registered or certified mail, and contains no affidavit of compliance reflecting any attempt to serve the defendants by mail. Id. at 1086. Second, the Court also found that plaintiff’s complaint failed to plead the statutory basis for invoking Fla. Stat. § 48.171 with respect to the motor vehicle owner defendant. Id.
In Smith v. Leaman, 826 So. 2d 1077 (Fla. 2nd DCA 2002), a driver appealed the trial court’s order denying his motion to quash a service of process, contending the plaintiff did not strictly comply with substituted service requirements. The Court held that when the failure of delivery of process was not caused by the defendant’s rejection of the mail and where such failure might have resulted from a cause not chargeable to the defendant, the statutory requirements for substituted service have not been met. Id. at 1079.
Fla. Stat. § 48.171 allows for an alternative method of service of process upon the motor vehicle operator or owner defendant who has become a nonresident or who is concealing his or her whereabouts. Substituted service can be an effective means for plaintiff’s counsel to secure service on a defendant. It can allow for the case to move forward and be placed at issue to proceed through jury trial. However, all efforts must be made to locate and serve the defendant, and when unsuccessful, the plaintiff must then strictly comply with Fla. Stat. § 48.161, which sets forth the method of substituted service of process.
Author Gulisano Posted on Categories Civil Litigation, Civil ProcedureAddress
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