15 Fla. L. Weekly Supp. 270c
Insurance — Automobile — Default — Vacation — Motion to vacate default judgment is denied where insurer strictly complied with constructive notice provisions and went beyond mere database search and cursory attempts to locate defendant by following investigative leads and going to possible addresses in attempts to serve process, and defendant would have been personally served had he complied with requirements to notify Department of Highway Safety and Motor Vehicles of changes of address
MERCURY INSURANCE COMPANY OF FLORIDA, as subrogee of ANNETTA BERSCHE, Plaintiff, v. CARL DELGADILLO, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 05-18986. October 12, 2007. Joelle Ann Ober, Judge. Counsel: Paul A. Bernardini, Jr., Law Office of Thomas E. O’Hara, Clearwater.
ORDER
THIS MATTER having come before the Court upon Defendant’s Motion to Vacate Default Judgment, the Defendant representing himself pro se, and the Plaintiff being represented by counsel, and the Court, having taken evidence and hearing argument by the parties makes the following findings of fact and conclusions of law:
1. That Plaintiff, Mercury, has demonstrated strict compliance with the constructive notice provisions set forth in Florida Statutes 48.161 and 48.171.
2. The Court heard testimony from the Plaintiff’s private investigator and process server, David Schulz of Marciniak Detective Agency.
3. Mr. Schulz was forwarded investigative leads as to the Defendant’s whereabouts, whose last known address was 15113 Buckhorn Court, Apartment 304, Lutz, FL 33559-7720. There were three other physical addresses that came up during the time Plaintiff was attempting to locate the Defendant. Mr. Schulz, or process servers acting at his direction, physically went to these addresses attempting to serve the Defendant. But this was to no avail. The addresses were invalid and nobody seemed to know where the Defendant had moved to.
4. Importantly, public records were investigated. As this case arises out of an automobile accident, F.S. 322.19(2) creates an affirmative obligation for a licensed driver to notify the Department of Highway Safety and Motor Vehicles (DHSMV) no later than 10 calendar days upon changing his residence.
5. With respect to motor vehicle registrations, F.S. 320.02 requires the registrant to provide a valid street address, among other things. The registrant also has a duty to notify DHSMV of any changes in his address within 20 days upon moving. F.S. 320.02(4).
6. The Defendant testified that at all times, he was in compliance with the F.S. 322.19(2) and 322.19(2) [sic]. This was not supported by the record evidence. Further, the Defendant produced a copy of his driver’s license bearing no street address, but a post office box. It is not entirely clear when this was done, but service upon a post office box is invalid.
7. The Plaintiff also introduced a declaration under seal by the United States Postal Service indicating that the Defendant had not left any forwarding addresses.
8. The Defendant contends that he became employed by the State of Florida working as a DJJ correctional officer and that due diligence would have yielded a valid home address.
9. The test for determining the sufficiency for substitute service is not whether it was in fact possible to effect personal service in a given case. Rather, it is whether the Plaintiff reasonably employed knowledge at his command, made a diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances to acquire the information necessary to enable him to effect personal service on the Defendant. DuBoise v. Butler, 901 So.2d 1029 (4 DCA 2005).
10. In this case, the Court finds the efforts used by the Plaintiff went beyond a mere data base search followed by cursory attempts to physically locate the Defendant.
11. Further, had the Defendant been compliant with the notification requirements arising out of his use and ownership of a motor vehicle, he would have likely been personally served cf., Vidal v. Perez, 720 So.2d 605 (3 DCA 1998) (allowing more than 120 days to perfect service on a defendant that is non-compliant with DHSMV notification requirements).
12. Based on the foregoing, it is ORDERED and ADJUDGED that Defendant’s Motion to Vacate Judgment is DENIED.
