11 Fla. L. Weekly Supp. 825b
Insurance — Personal injury protection — Service of process — Delay — Where small claims rules contemplate that summons/notice to appear should be served within 45 days from date of filing of action, but rules of civil procedure allow court to excuse failure to serve for good cause or excusable neglect, court finds that attempts to negotiate settlement of this and 70 other simultaneously-filed suits constitute good cause or excusable neglect for delay in effecting service — Motion to dismiss denied
TALLAHASSEE ORTHOPEDIC CLINIC, III (as assignee for Thomas Lanway), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 03-SC-8323, Division B. June 28, 2004. Roberto A. Arias, Judge. Counsel: Joseph V. Camerlengo and R. Brian Boyd, Camerlengo & Brockwell, P.L., Jacksonville, for Plaintiff. Patrick J. Snyder, James C. Rinaman, III & Associates, P.A., for Defendant.
ORDER DENYING MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS
THIS CAUSE came on to be heard upon the Defendant’s Motion to Dismiss for Insufficient Service of Process. Present before the Court appeared James C. Rinaman, III, Esquire, attorney for Defendant, and Joseph V. Camerlengo, Esquire, attorney for Plaintiff. The Court having reviewed the memoranda of law submitted by the attorneys for their respective parties, and having further considered the facts of this cause, hereby finds that:
A. The Plaintiff, TALLAHASSEE ORTHOPEDIC CLINIC, III, filed several actions against Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, claiming that the Defendant had failed to make full payment of No-fault benefits as required by Section 627.736(4)(b), Florida Statutes.
B. This cause was filed on July 31, 2003. However, no summons was issued in the cause at the time of filing.
C. This is a summary claims case which is covered by the Florida Small Claims Rules.
D. Process was not served against the Defendant until February 23, 2004, two hundred seven (207) days from the date the Complaint was filed.
E. Counsel for the Plaintiff represented to the Court that the reason for his failure to serve the Complaint was due to his efforts to negotiate settlement of not only this cause, but the other approximately seventy (70) cases against Defendant which he had filed simultaneously with this action. Shortly after filing the cases, the Plaintiff began communications with an attorney who was representing the Defendant in a case being handled by the Plaintiff’s attorney. This communication was made in an effort to settle this case, along with the other cases that have been simultaneously been filed.
F. The Plaintiff’s attorney introduced a letter dated November 13, 2003 to the Defendant’s attorney in that other case. This letter documents the fact that the Plaintiff was attempted to negotiate a settlement of this cause. Namely, the letter contained an attachment in which the twenty second (22nd) line dealt with the insured in this case. That letter enclosed a letter of the Complaint filed in this case, as well as, a statement by the Plaintiff that “[w]e have not yet had this case served and intend to do so in the near future, if we cannot reach a prompt and amicable resolution of this matter”.
G. Rule 7.060(a), Florida Small Claims Rules, provides that “[a] summons entitled Notice to Appear stating the time and place of hearing shall be served on Defendant.” Subsection (b) of that Rule also provides that “[a] copy of the Statement of Claim shall be served with a summons/Notice to Appear”. Rule 7.090, Florida Small Claims Rules, provides that “[o]n the date and time appointed in the Notice to Appear, the Plaintiff and Defendant shall appear personally or by counsel”. Additionally, Subsection (b) of that Rule also requires the “summons/Notice to Appear shall specify that the initial appearance shall be for a pre-trial conference. The initial pre-trial conference shall be set by the Clerk, not more than fifty (50) days from the date of the filing of the action.” Lastly, under Rule 7.100, Florida Small Claims Rules, “[a] compulsory or permissive counterclaim shall be filed not less than five (5) days prior to the initial appearance date (pre-trial conference).” Therefore, the Florida Small Claims Rules contemplate that the summons/Notice to Appear should be served in less than forty five (45) days from the date of the filing of the action. However, under Rules 1.070(j), Florida Rules of Civil Procedure, the Court may provide an extension of time, and therefore excuse failure to serve, where the Plaintiff shows good cause or excusable neglect for the failure to serve the summons within the prescribed period of time. Thomas v. Silvers, 748 So.2d 263 (Fla. 1999). This Rule gives a broadened trial Court discretion to permit an extension of time for service of process even as a showing of good cause. This Rule incorporates that, in addition to good cause, the Court may, in its discretion, permit an extension for time for service of process due to excusable neglect. Thomas, supra.
H. This Court cannot conceive and it did not hear any evidence of any other reason, other than the Plaintiff attorney’s good faith belief was that he was involved in settlement negotiations with Defendant’s representative, for not serving the Defendant with this and the other seventy (70) plus law suits that were filed simultaneously with this one. Therefore, the Court finds that such negotiation attempts constitute a good cause or excusable neglect for the delay effecting the service in this case. Carlton v. WalMart, 621 So.2d 451 (Fla. 1st DCA 1993).
For the above stated reasons, it is hereby
ORDERED:
The Defendant’s Motion to Dismiss is hereby DENIED.
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