25 Fla. L. Weekly Supp. 809a
Online Reference: FLWSUPP 2509SUNDInsurance — Service of process — Failure to perfect within 120 days — Motion to dismiss suit for failure to perfect service of process on insurer within 120 days of filing statement of claim is denied where medical provider twice attempted service through Department of Financial Services, provider was successful within less than 60 days after 120-day time period for service, and statute of limitations would bar provider from refiling suit if it were dismissed
KEMP CHIROPRACTIC, as assignee of MIGUEL JOSEPH SUNDY, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2016-SC-007177. Division CC-Q. November 20, 2017. Dawn Hudson, Judge. Counsel: Don Owens and Steven M. Croskey, PIP Guide Legal, LLC, , Jacksonville, for Plaintiff. David M. Gagnon, Jacksonville, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
This cause came before the Court on Defendant’s Motion to Dismiss. After considering the argument of counsel and all relevant legal authority and being otherwise advised in the premises, this Court does hereby FIND and DECIDE:
FINDINGS OF FACT:
1. This cause originated with a Statement of Claim filed on December 6, 2016.
2. A Summons was issued on December 6, 2016.
3. The Pre-Trial Conference was scheduled January 19, 2017. As of that date, the Defendant had not been served.
4. The Plaintiff served Defendant on May 30, 2017. This was 175 days after the filing of the complaint.
5. The instant motion was filed June 5, 2017.
APPLICABLE RULE:
Florida Rule of Civil Procedure 1.070(j) states, in part:
If service of the initial process and initial pleadings 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; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period. (Fla. Civ. P. Rule 2017).
ANALYSIS:
It is undisputed that the Plaintiff failed to serve Defendant within 120 days as required by the Rule.
The Motion raised by Defendant, if granted, would result in the cause being dismissed. In the instant case, that would effectively terminate the Plaintiff’s ability to have their day in Court as the Statute of Limitations has run in this cause.
Florida Courts have repeatedly and consistently favored a resolution of civil disputes on the merits. Additionally, the First District Court of Appeal stated in Green v. Lingle, 166 So.3d 221 (1st DCA 2015) [40 Fla. L. Weekly D1435c], the Courts have discretion when considering a Motion to Dismiss on this ground.
This Court considers the harsh reality that if this motion is granted, the Plaintiff has no recourse available to have their cause decided on the merits. Additionally, the service was obtained prior to the hearing and 175 days after the Claim was filed.
A court must consider the purpose of the Rule when applying the Rule. The purpose of the applicable rule in this matter, as stated by the Third DCA, quoted by the Second DCA in Chaffon v. Jacobson, 793 So.2d 102,104 (2nd DCA 2001) [26 Fla. L. Weekly D1998a], and further affirmed by the Green court (supra.) is:
“. . . [the purpose of Rule 1.070(j) is] to speed the progress of cases on the civil docket, but not to give defendants a “free” dismissal with prejudice. Thus, where there has been no showing of good cause or excusable neglect, but the statute of limitations has run, discretion should normally be exercised in favor of giving the Plaintiff an extension of time to accomplish service.” Skrbic v. QCRC Assocs. Corp., 761 So.2d 349, 354 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D634c].
This Court, upon consideration that the Defendant is an insurance company, which requires that service made through the Florida Department of Financial Services pursuant to Florida Statutes 48.151 (2017), and that the Plaintiff attempted two times to obtain service on Defendant, and was successful within less than sixty days after the 120 day time period ended, and that the Plaintiff would be barred from bringing suit due to the Statute of Limitations, does deny the Motion.1
CONCLUSION:
The Defendant’s Motion to Dismiss is DENIED for the reasons previously stated.
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1See also Britt v. City of Jacksonville, So.2d 1196 (1st DCA 2004) [29 Fla. L. Weekly D1123c], Regions Bank v. Buoncervello, 220 So.3d 1225 (5th DCA 2017) [42 Fla. L. Weekly D1143a], affirming the broad discretion of a trial court in these matters and also explaining the 1999 amendment which eased the harsh results of the Rule and re-iterated that the intent of the Rule is case management, not a severe sanction.
