Articles

Service of Process: Gaining Substitute Service on the Operator or Owner of a Motor Vehicle
By: Scott Smith, Esq.

Have you recently experienced the frustration of receiving the Affidavit of Service back from your chosen certified process server that indicates he or she was unable to locate and serve the defendant motor vehicle operator or owner?  If your case load consists of even just a handful of auto accident cases, you have likely been in such a situation and left scrambling to find a better address for the defendant. Moreover, you have likely even failed to gain service on the defendant after providing your process server with an alias and/or pluries summons containing multiple different addresses.

For whatever reason, the inability of the process server to locate the defendant to gain sufficient legal service of process seems to be occurring much more often then ever before.  Theories as to why Florida residents/citizens are failing to keep their driver's license, credit card records, bank records, etc. current with their actual residence is a debate better left for others.  For us trial lawyers the practical effect is that we need to gain service on the defendant so we can move our client's case forward in a diligent manner and put pressure on the insurance carrier with an imminent trial date.  In certain instances there is no other alternative but to achieve substitute service on the defendant via Section 48.171, Florida Statutes.

It would be remiss to not mention in this article that it is well settled that the fundamental purpose of service is to give proper notice to the defendant in the case that he is answerable to the claim of the plaintiff and, therefore, to vest jurisdiction in the court entertaining the controversy.  Shurman v. Atlantic Mortgage & Investment Corporation, 795 So.2d 952 (Fla. 2001).  Likewise, the purpose of constructive or substituted service is to bring knowledge of the pending litigation to the defendant in order that he may appear and guard his interests.  In other words, the purpose of this jurisdictional scheme is to give the person affected notice of the proceedings and an opportunity to defend his or her rights.  Because of the importance of litigants receiving notice of actions against them, statutes governing service of process are to be strictly construed and enforced.  Schupak v. Sutton Hill Assocs., 710 So.2d 707, 708 (Fla. 4th DCA 1998).

Section 48.031(1)(a), Florida Statutes, provides that Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.  Aside from the common due process principles that mandate service upon the defendant, the Florida Rules of Civil Procedure also require service be perfected within a prescribed period of time.  Rule 1.070(j) states that if service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party.  Of course, the dilemma for the trial lawyer is presented when service on the defendant cannot be perfected within the time prescribed by the rules and there appears no real likelihood the defendant will be located and served.

Fortunately, section 48.171, Florida Statutes, allows for an alternative form of service, substitute service, when the defendant operator and/or owner have become a nonresident or conceals his or her whereabouts.  Section 48.171 states:
"Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to nonresident operators and owners, of operating a motor vehicle or of having it operated, or of permitting any motor vehicle owned, or leased, or controlled by him or her to be operated with his or her knowledge, permission, acquiescence, or consent, within the state, or any resident of this state, being the licensed operator or owner of or the lessee, or otherwise entitled to control 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, or by persons with his or her knowledge, acquiescence, and consent 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, lessee, or other person entitled to control 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."

Nevertheless, additional pitfalls are associated with attempting to gain substitute service on a defendant.  Because the statute allowing substituted service is an 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, (Fla. 4th DCA 2002).

Prior to even attempting to gain substitute service on a defendant operator or owner, counsel for plaintiff must have used due diligence in trying to locate and serve the defendant.  A plaintiff may not use substituted service of process allowed by sections 48.161 and 48.171 unless it is shown that efforts have been made to find the defendant.  Cross v. Kalina, 681 So.2d 855 (Fla. 5th DCA 1996); See Knabb v. Morris, 492 So.2d 839 (Fla. 5th DCA 1986) (hiring of private investigator not enough to establish due diligence when investigator failed to utilize obvious and available resources to locate defendant).    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 (Fla. 4th DCA 1979).

Further, when using substituted service under section 48.171, a plaintiff must meet two requirements: 1) the complaint must allege the ultimate facts bringing the defendant within the purview of the statute, and 2) the service must strictly comply with section 48.161, Florida Statutes, which sets forth the method of substituted service of process.  Under section 48.161, the plaintiff must serve the secretary of state and mail a copy of the summons and complaint to the defendant by registered or certified mail.  In addition to providing the Secretary of State a copy of the process a fee of $8.75 is also required.  The plaintiff must then file the return receipt for the papers mailed to the defendant along with an affidavit showing compliance with the applicable statute.

Moreover, the amended complaint must plead the statutory basis for invoking section 48.171 with respect to the defendant whom the plaintiff desires to gain substitute service upon.  To support substituted service of process on a defendant, the complaint must allege the jurisdictional requirements prescribed by statute. If the complaint fails to do so then a motion to quash process can be granted.  If the complaint fails to allege that the defendant is a nonresident or concealing his or her whereabouts than on that basis alone the complaint could be considered fatally defective.

In the Monaco case the 4th DCA 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.  Monaco v. Nealon, 810 So.2d at 1086.  Second, the Court also found that plaintiff's complaint failed to plead the statutory basis for invoking section 48.171 with respect to the motor vehicle owner defendant.  Monaco at 1086.

In conclusion, section 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.  With that said, the section does not give carte blanche authority to counsel for plaintiff to use in every case and/or situation.  First and foremost, due diligence must be exercised by counsel in trying to locate and serve the defendant.  Case law requires more than just trying to serve the defendant at the address indicated on the crash report.  The cases actually appear to require counsel to exhaust all possible means in locating the defendant before electing to gain substitute service through the Secretary of State.  Second, procedural requirements must be followed accurately for sufficient substitute service.  The complaint must be amended to reflect that the defendant has become a nonresident or that the defendant is concealing his or her whereabouts.  The process must then be served upon the Secretary of State with a fee of $8.75.  The new summons should reflect the defendant will be served care of his or her designated agent, the Secretary of State.  Two copies of the amended complaint should go to the Secretary of State along with a cover letter indicating what section of chapter 48, Florida Statutes, is being utilized.  The process and the return of service received back from the Secretary of State must be mailed to the defendant via registered or certified mail.  Last, an affidavit of counsel indicating compliance with section 48.161 must be filed with the court.

Substitute 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 find the defendant, and when satisfied every effort has been made to locate and serve the defendant, counsel must then properly follow the procedural requirements announced in the applicable statutes.

(Any questions regarding the actual filing of the summons and complaint with the Secretary of State can be directed to the Florida Department of State at (850) 245-6053).