11 Fla. L. Weekly Supp. 911a
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 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 Yolanda Beltran), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2003-SC-8228. Division CC-O. July 2, 2004. Ronald P. Higbee, 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., Jacksonville, for Defendant.
ORDER DENYING MOTION TO DISMISSFOR INSUFFICIENT SERVICE OF PROCESS
This cause came on to be heard upon the defendant’s Motion to Dismiss for Insufficient Service of Process. The court having reviewed the memoranda of law submitted by the attorneys for their respective parties and having further considered the facts of this case, hereby finds that:
A. The plaintiff, Tallahassee Orthopedic Clinic, III, filed multiple actions against the 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 11, 2004 — one hundred ninety-five (195) 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 had been simultaneously filed.
F. The plaintiff’s attorney introduced a letter dated November 13, 2003, that was sent to the defendant’s attorney in that other case. This letter documents the fact that the plaintiff was attempting to negotiate a settlement of this cause. Namely, the letter contained an attachment in which the second 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 Rule 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 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.
The evidence before this court is that the plaintiff’s attorney acted in the good faith belief that he was involved in settlement negotiations with the defendant’s representative in this and the other seventy (70) plus lawsuits 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).
In consideration of the above and foregoing, it is
ORDERED AND ADJUDGED that the defendant’s Motion to Dismiss is hereby denied.
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