Knabb v. Morris

• Decision Date: 14 August 1986
• Docket Number: No. 86-352,86-352
• Citation: 11 Fla. L. Weekly 1796,492 So.2d 839
• Parties: 11 Fla. L. Weekly 1796 Carol J. KNABB and Standard Guaranty Insurance Company, Appellants, v. Susan Arlene MORRIS, a/k/a Susan Adeline Morris, Appellee.
• Court: Florida District Court of Appeals

Page 839

492 So.2d 839

11 Fla. L. Weekly 1796

Carol J. KNABB and Standard Guaranty Insurance Company, Appellants, v.Susan Arlene MORRIS, a/k/a Susan Adeline Morris, Appellee.

No. 86-352.

District Court of Appeal of Florida Fifth District.

Aug. 14, 1986.

Lora A. Dunlap and Reinald Werrenrath, III of Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A., Orlando, for appellants.

Anthony I. Provitola, P.A., DeLand, for appellee.

COBB, Judge.

Knabb appeals the denial of her motion to quash service of process made by appellee/plaintiff below, Susan Morris.

Morris filed a complaint against Knabb and Standard Guaranty Insurance Company(Standard) in September, 1984, arising out of a September, 1980, automobile accident.Service of process was perfected on Standard, Knabb's insurance carrier; however, service of process on Knabb was twice returned unserved.Morris then attempted to achieve substitute service of process on Knabb via section 48.171, Florida Statutes(1985).¹

Morris amended her complaint to allege that Knabb was a resident of the State of Florida at the time of the accident, but was either no longer a resident or was concealing her whereabouts in Florida.Morris also submitted two affidavits.The first affidavit was from her attorney, showing that he had complied with section 48.171 requirements by sending notice to the Secretary of State.The affidavit noted that Morris sent a copy of the complaint by registered mail to Knabb's last known address on August 30, 1985.The complaint was returned marked "Moved Left No Address."

The affidavit of a private investigator hired by Morris was also submitted.His investigation had begun in early 1985 and concluded in May of 1985.The investigator stated that he first went to a Gulf Avenue address listed on the accident report, but Knabb was unknown to the present occupants.The investigator then went to 552 Palmetto Avenue (for reasons unknown) and found no record of Knabb's whereabouts.Knabb was also unknown to the occupants of an East Cypress address listed on Knabb's driving record.The caretaker there, however, stated that she had moved out in September or October of 1984 and left no forwarding address.The investigator searched through the telephone directories and found Knabb listed as having the East Cypress Street address.The investigator contacted the U.S. Postal Service, who informed him that Knabb left no forwarding address.Knabb also was not listed at any of the utility companies.

Knabb moved to quash the service of process on the ground, inter alia, that the facts did not justify substituted service.After a hearing, the motion was denied and this appeal ensued.

The issue on appeal is whether the facts adduced at the hearing support a finding of due diligence by the plaintiff in effectuating substituted service of process on Knabb.The burden to make that showing was on the plaintiff.SeeAB CTC v. Morejon, 324 So.2d 625(Fla.1975);Barriat v. Salahud-din, 389 So.2d 1216(Fla. 3d DCA1980);Robinson v. Cornelius, 377 So.2d 776(Fla. 4th DCA1979);Bird v. International Graphics, Inc., 362 So.2d 316(Fla. 3d DCA1978);Leviten v. Gaunt, 360 So.2d 112(Fla. 3d DCA1978);Fleischman v. Morris, 260 So.2d 278(Fla. 3d DCA1972).

There is a strong public policy interest in seeing that a defendant receives notice of any actions against him so that he may have his day in court in accordance with due process requirements.For this reason, substituted service of process statutes must be strictly complied with.See generally, AB CTC v. Morejon, supra;Young Spring & Wire Corporation v. Smith, 176 So.2d 903(Fla.1965);Barriate v. Salahud-din, supra;Robinson v. Cornelius, supra.Thus, failure to utilize obvious and available leads to locate the defendant is fatal to a finding of due diligence.

In Leviten, supra, the plaintiffs sent notice to the secretary of state and service to two addresses of the defendant in Miami.Both were returned--one marked "unclaimed" and the other marked "no such street number and not in the directory."Plaintiff's attorney deposed defendant's parents, who stated that she had moved out nearly a year before the initiation of the lawsuit after a personal argument, and since that time they had only received a single post card from her from Paris.The parents did,...