Given the transient nature of Florida's population, it is not surprising that Florida residents are often involved in motor vehicle accidents with both out-of-state drivers and Florida residents who thereafter move to another state. When it comes time to file a lawsuit against them, the address they provided at the time of the crash may be worthless and they may be nowhere to be found in the State of Florida. Some may merely be hiding in an attempt to evade service of the lawsuit. Under these circumstances, Florida law provides the process by which the Defendant may be given "constructive" service which permits the lawsuit to move forward without the Defendant having been personally served.
Florida Statute 48.171 is entitled "Service on Non-Resident Motor Vehicle Owners, etc". While the statute's title refers only to non-resident motorists, it also applies to Florida residents who conceal their whereabouts within the state. The statute basically says that by owning and or operating a motor vehicle in the State of Florida, those persons give consent to have the Florida Secretary of State accept service of process (the lawsuit) for them should they leave the state or conceal their whereabouts. In order to obtain service in this manner however, the law requires the plaintiff to take a number of steps to establish that the defendant simply cannot be located and served. The standard necessary to satisfy 48.171 has been established by Florida Courts as follows:
" The test for whether a plaintiff may rely on substituted service is not whether it was in fact possible to effect personal service in a given case, but whether the plaintiff reasonably employed knowledge at their command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire information necessary to enable them to effect personal service on the defendant." Delancy v Tobias 26 So3d 77( Fla. 3d DCA 2010)
This standard has been applied to numerous Florida cases in which it was found that the plaintiff did not exert an "honest and conscientious effort " to serve a defendant. In Dubois v Butler, 901 So2d 1029 (Fla. 4th DCA 2005) the plaintiff merely attempted to serve the defendant at an address listed on the three year old accident report. Likewise in Hanna v Millbyer, 570 S02d 1087 ( Fla. 3d DCA 1990) the plaintiff invoked the his right to proceed upon substituted service of process merely after failing to effect personal service at the defendant's last known address. In both cases, the substituted service was disallowed.
The lesson to be learned is that the plaintiff, through his attorney, is required to do some detective work by following up obvious leads and using generally known data bases in an attempt to locate the defendant. These efforts then need to be documented in an affidavit which is filed with the court. Lastly, the material facts establishing the appropriateness of substituted service need to be alleged in the Complaint ( lawsuit) to be filed. Realistically, if substituted service is approved and obtained, in most cases the defendant's insurer will immediately get involved in locating their insured and providing a defense, since they were probably placed on notice that a lawsuit may be forthcoming from the date of the accident. In the few instances I have had to resort to substituted service, I also send a copy of the Complaint to the defendant's insurance company, since they will be the entity to defend the case and either pay the jury award or sign the settlement check. If you have been injured by a party who is suspected to have left the state or simply cannot be located, please call me at my offices at 727-822-3700 for a no-cost consultation.
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