9 Fla. L. Weekly Supp. 278b
Insurance — Civil procedure — Error to dismiss action for failure to perfect service where service, albeit invalid, was perfected prior to lapse of 120-day period and subsequent 60-day extension
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, vs. ENRIQUE A. MARCANO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 01-097 AP. L.T. Case No. 98-7301 CC 25. Opinion filed March 19, 2002. An appeal from the County Court of Miami-Dade County, Florida, Wendell M. Graham, Judge. Counsel: Lee L. Hinnant, for Appellant. Warren Jacobs, for Appellee.
(Before MARC SCHUMACHER, PETER LOPEZ and KEVIN EMAS, JJ.)
(PETER LOPEZ, J.) This is an appeal from an order of dismissal based upon the Appellant’s failure to timely serve the Appellee.
The Appellee, Mr. Marcano, was not served with the initial pleading within the initial time limit of 120 days or within the 60 day extension period granted by the lower tribunal. We find that State Farm made attempts to timely serve the Appellee. On November 11, 1998, State Farm sought to serve the defendant by serving David Martinez at an address where the defendant had resided four months prior. Upon the filing of the return of service, the Appellee filed a motion to quash the service. The motion was granted because the service was not made on an individual who resided at the defendant’s usual place of abode. At the same hearing, the court granted the Appellant’s motion for extension. The period to serve was extended for an additional 60 days commencing on January 8, 1999. Under this order, the, time to serve was extended until March 9, 1999. On March 8, 1999, State Farm tried to serve Mr. Marcano via registered mail in Venezuela and at a Pompano Beach address. On the following day, State Farm attempted substituted service through the Secretary of State. This last effort to serve was within the 60 day extension period and the lower court ruled that the service was valid.
Mr. Marcano filed a motion to quash the substituted service on the Secretary of State. The lower court denied his motion and, thereafter, Mr. Marcano appealed the lower court’s ruling. On March 30, 2000, the 11th Judicial Circuit, sitting in its appellate capacity, determined that the substitute service on the Secretary of State improper, as the diligent search had not been completed and failed to establish that Mr. Marcano lived outside of Florida.
We find that the lower court committed error by dismissing the case since the previous invalid service, which was the subject of appellate review, was effectuated prior to the initial 120 day period and the subsequent 60 day extension elapsing. Bice v. Metz Const. Co., 699 So. 2d 745, 746 (Fla. 4th DCA 1997), rev. den. sub. nom, James Young & Co. v. Bice, 705 So. 2d 901 (Fla. 1998); Smith v. Saunders, 652 So. 2d 1187, 1188 (Fla. 2d DCA 1995); Caban v. Skinner, 648 So. 2d 251 (Fla. 3d DCA 1994). Upon remand, no further time limits were set at the status conference on June 2, 2000, and the record now reflects that State Farm effectuated service on the Secretary of State on November 16, 2000. Therefore, Appellee’s motion for dismissal should have been denied. We make no finding as to the validity of the more recent service on the Secretary of State as that is the subject of a pending motion to quash, as yet not ruled on.
REVERSED AND REMANDED for further proceedings in compliance with this mandate. (MARC SCHUMACHER and KEVIN EMAS, JJ., concurring.)
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