Home Life Ins. Co. v. Regueira, 69--674

• Decision Date: 16 December 1970
• Docket Number: No. 69--674,69--674
• Citation: 243 So.2d 460
• Parties: HOME LIFE INSURANCE COMPANY, Appellant, v. Agnes C. REGUEIRA, Appellee.
• Court: Florida District Court of Appeals

Page 460

243 So.2d 460

HOME LIFE INSURANCE COMPANY, Appellant, v. Agnes C. REGUEIRA, Appellee.

No. 69--674.

District Court of Appeal of Florida, Second District.

Dec. 16, 1970.

Rehearing Denied Feb. 16, 1971.

Joseph B. Cofer, of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellant.

Arnold D. Levine and Michael J. Freedman, Tampa, for appellee.

McNULTY, Judge.

We are called upon to decide the sufficiency of process in this action brought by the named beneficiary of a life insurance policy against the insurer.

Agnes C. Regueira filed her complaint in the Circuit Court of Hillsborough County. Pursuant to § 624.0222(1), F.S.A., the sheriff of Leon County served the required three copies of the summons and complaint on the state treasurer, ex officio the insurance commissioner, who, thereafter, failed to comply with the further provisions of said § 624.0222(1) in that instead of promptly forwarding a copy of the summons and complaint, by registered or certified mail, to a named designee of the appellant insurance company, he erroneously forwarded such summons and complaint, by certified mail, back to the attorney for the plaintiff. From the record it appears that no one in the commissioner's office specifically recalls having sent anything to the insurance company's designee, but the commissioner's file in the matter reveals a carbon Copy of a covering letter of transmittal sent to the designee in which it appears that a copy of the summons and of the complaint were in fact enclosed therewith. There is no showing that that epistle was sent by registered or certified mail, and, indeed, appellant denies ever having received it by or through any of its officers or agents. Default judgment was entered against appellant upon its failure to appear timely and plead, and a subsequent motion to set aside such judgment was filed and denied within the time for taking an appeal. This appeal from the final judgment then ensued.

On the pertinent facts aforesaid, and in denying appellant's motion to set aside the judgment, the trial court first of all expressly found (apparently under the 'shop book' rationale) that a copy of the summons and complaint had in fact been forwarded to appellant's designee, although not by registered or certified mail. That is to say, the court necessarily must have indulged in the inference, based upon the commissioner's file copy of the letter of transmittal to such designee and on testimony as to usual office practice ¹, that a copy of the summons and complaint had indeed been sent. He thereupon determined that the statute was thereby satisfied and that the process was valid and binding. We are compelled to disagree.

Arguendo, the 'shop book' rationale may well be relied upon to establish some form of forwarding of the process herein. But forwarding isn't the gravamen or aim of a service of process statute--receipt is. This is so because, as we noted in a very similar, though not controlling case ², '* * * the essential purpose of process is Notice, * * *', and there can be no notice in the legal sense without receipt of process. Oftentimes, of course, circumstances defy ready delivery and receipt of process, hence the necessity for statutes providing for substituted or constructive service thereof; but by strict compliance with prescribed forwarding procedures in such cases the contemplated receipt is rendered reasonably likely, thus satisfying due process. Indeed, receipt in such cases may often be presumed. ³ It follows, therefore, that notice, as contemplated by service of process, must be equated with, or predicated upon, actual or presumed Receipt of such process, not with transmittal thereof. Stated otherwise, the formalities of forwarding are not to accomplish forwarding for itself, but rather are intended to reasonably assure receipt.

Now, we can take judicial knowledge that proof of receipt of process, and therefore notice, can be documented by registered or certified mail. On the other hand, in order to establish such receipt by mere utilization of the 'shop book' rationale, i.e., based upon a prior inference of transmittal, there would have to be reliance upon superimposed inferences. The legislature obviously intended to obviate this indulgence by expressly requiring 'registered or certified mail' as the method of transmittal so that proof of Receipt can be established other than by inference. Additionally, of course, and as noted, such transmittal increases the likelihood of receipt so as to comport with due process. We conclude at the outset, therefore, that the undisputed evidence is legally insufficient to support a finding that a copy of the summons and complaint herein was in fact 'forwarded' to appellant in satisfaction of the statutory mandate.

It is alternatively urged by appellee, nevertheless, that even if the commissioner was derelict in the premises he was, at the time, acting as 'resident agent' for the appellant, and that therefore Appellant should be bound by such dereliction rather than appellee, who fully complied with the statute, be prejudiced. She relies on paragraph (3) of § 624.0221 F.S.A., which provides as follows:

'Service of process upon the commissioner 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.' (Italics supplied.)

She argues that pursuant to this...