12 Fla. L. Weekly Supp. 690a
Insurance — Personal injury protection — Default — Vacation — Jurisdiction — Service of process — Trial court denying motion to vacate default had insufficient proof to determine that jurisdiction had been established over insurer where court had return receipt for service of process on Department of Insurance but lacked proof of compliance with statutory procedures for forwarding copy of process to insurer
ALLSTATE INSURANCE COMPANY, a foreign corporation, Defendant/Appellant, v. T. STEPHEN HINES, D.C., INC., A Florida corporation, Plaintiff/Appellee. Circuit Court, 5th Judicial Circuit (Appellate) in and for Citrus, Hernando, Lake, Marion, and Sumter Counties. Case No. 2004-AC-000026. L.C. Case No. 2003-SC-3229. May 9, 2005. Appeal from the Marion County Court.
OPINION
(MERRITT, J., PRESIDING.) The Appellee, “Hines”, sued the Appellant; “Allstate”, to recover the cost of chiropractic treatment for one of Allstate’s insureds. Hines’ first summons was returned by the Florida Department of Insurance, as not correctly identifying the company. Thereafter, Hines filed an amended statement of claim on January 21, 2004, correcting the name of the carrier to, “Allstate Insurance Company”. The amended statement of claim and an alias summons for pretrial and mediation conference was sent via certified mail for service through the Florida Department of Insurance.
On March 5, 2004, Hines filed the return receipt signed by a Damien Peterson at the Florida Department of Insurance. The trial judge had the pre-trial conference on March 30, 2004, and found he had subject matter and personal jurisdiction, and entered a default and default judgment against Allstate for $1,077.95.
On July, 20, 2004, Allstate filed a motion and supporting memorandum of law to set aside the defaults. The trial judge denied the motion saying:
“COMES NOW the Court upon Defendant’s “Motion To Set Aside Default” filed with the Clerk on July 20, 2004, which motion seeks to have this case reopened and, without hearing, but having reviewed the Court file and finding that Plaintiff appeared but Defendant failed to appear at the Pre-Trial Conference noticed and held in this case on March 20, 2004 , [sic] that a “Court Entered Default And Default Judgment” was entered in this case on March 31, 2004, which was copied to Defendant, that Defendant’s instant motion was filed four months after the Judgment was entered, that the Affidavit referenced in paragraph 1 of Defendant’s instant motion appears not to have been filed in this case and that Defendant has failed to show excusable neglect.”.
Allstate appeals the trial judge’s entry of defaults and denial of rehearing, arguing that the defaults should be set aside due to improper service of process.
Service of process on insurers authorized to do business in Florida is specifically governed by Florida Statutes sections 624.422 and 624.423 that are set out in full here:
“624.422. Service of process; appointment of Chief Financial Officer as process agent
(1) Each licensed insurer, whether domestic, foreign, or alien, shall be deemed to have appointed the Chief Financial Officer and her or his successors in office as its attorney to receive service of all legal process issued against it in any civil action or proceeding in this state; and process so served shall be valid and binding upon the insurer.
(2) Prior to its authorization to transact insurance in this state, each insurer shall file with the department designation of the name and address of the person to whom process against it served upon the Chief Financial Officer is to be forwarded. The insurer may change the designation at any time by a new filing.
(3) Service of process upon the Chief Financial Officer as the insurer’s attorney pursuant to such an appointment shall be the sole method of service of process upon an authorized domestic, foreign, or alien insurer in this state.
624.423. Serving process
(1) Service of process upon the Chief Financial Officer as process agent of the insurer (under s. 624.422) shall be made by serving copies in triplicate of the process upon the Chief Financial Officer or upon her or his assistant, deputy, or other person in charge of her or his office. Upon receiving such service, the Chief Financial Officer shall file one copy in her or his office, return one copy with her or his admission of service, and promptly forward one copy of the process by registered or certified mail to the person last designated by the insurer to receive the same, as provided under s. 624.422(2).
(2) Where process is served upon the Chief Financial Officer as an insurer’s process agent, the insurer shall not be required to answer or plead except within 20 days after the date upon which the Chief Financial Officer mailed a copy of the process served upon her or him as required by subsection (1).
(3) Process served upon the Chief Financial Officer and copy thereof forwarded as in this section provided shall for all purposes constitute valid and binding service thereof upon the insurer.”
Prior to 1971, sections 624.423 and 624.422 were numbered, sections 624.0222 and 624.022, respectively. A thorough appellate examination and analysis of the older numbered statutes is found in the case of, Home Life Ins. Co. v. Regueira, 243 So.2d 460 (Fla. 2d DCA 1970), Cert. dismissed, 248 So.2d 170 (Fla. 1971). In the Home Life case, the court opined:
“The service of process requirements contemplated by ss 624.0221 and 624.0222, supra, are essentially to expedite the institution and progress of insurance litigation for the protection and convenience of both the public and insurance companies doing business in this state. As to his function in effecting service of process in such litigation, the commissioner is nothing more than an official conduit through whom process is centrally initiated (a benefit to the public) and by whom ‘notice’ to the insurer is assured (a benefit to the insurer). He is no more the agent of one than he is of the other in the performance of his duties in the premises.
In further support of our holding here that both service upon the commissioner And strict compliance with the forwarding procedures prescribed in the statute are essential, we observe that, pursuant to paragraph (2) of s 624.0222, supra, the time within which an insurance company is required to respond to a summons and complaint is computed not from the date of initial service thereof upon the commissioner but rather from the date of his subsequent compliance with the statutory duties imposed on him, i.e., the ‘forwarding’ of the summons and complaints to the insurer’s designee by registered or certified mail.
Finally, we allude to the provision of paragraph (3) of s 624.0222, supra, which provides that:
‘Process served upon the commissioner and copy thereof forwarded as in this section provided shall for all purposes constitute valid and binding service thereof upon the insurer.’ (Italics supplied.)
Clearly, by the mandate of this subsection only service upon the commissioner And transmittal thereof by him Forwarded as prescribed constitutes ‘valid and binding service.’ Anything less is fatal.” Id. at 463.
Needless to say, jurisdiction is the essential prerequisite to the exercise of any court’s authority and it is axiomatic that:
“[s]tatutes dealing with service of process are to be strictly construed. Sierra Holding Inc.; Baraban v. Sussman, 439 So.2d 1046 (Fla. 4th DCA 1983). The burden of proof to sustain the validity of service of process is upon the person who seeks to invoke the jurisdiction of the court, and to achieve proper service of process, there must be a strict compliance with the applicable statute.” See, Carlini v. State Dept. of Legal Affairs, 521 So.2d 254, 256 (Fla. 4th DCA 1988).
Based on the applicable law and the record before us, it is evident that the trial judge had insufficient proof to find that jurisdiction had been established over Allstate. For this reason, the case is reversed and remanded to the trial court to conduct a hearing on the motion to set aside the default based on lack of jurisdiction.
REVERSED WITH INSTRUCTIONS.
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