Nationwide Mut. Fire Ins. Co. v. Holmes

• Court: Florida District Court of Appeals
• Writing for the Court: DAUKSCH
• Citation: Nationwide Mut. Fire Ins. Co. v. Holmes, 352 So.2d 1233 (Fla. App. 1977)
• Decision Date: 29 November 1977
• Docket Number: No. 77-755,77-755
• Parties: NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. James G. HOLMES and Emil Frantsi, Appellees.

Page 1233

352 So.2d 1233

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. James G. HOLMES and Emil Frantsi, Appellees.

No. 77-755.

District Court of Appeal of Florida, Fourth District.

Nov. 29, 1977.

Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellant.

Joel T. Daves, III of Burdick & Daves, West Palm Beach, for appellees.

DAUKSCH, Judge.

Defendant Nationwide Mutual Fire Insurance Company seeks interlocutory review of an Order granting Plaintiff Holmes' Motion to Join an Indispensable Party and Orders denying Nationwide's Motion for Summary Judgment and Motion to Dismiss for lack of jurisdiction over the person. This latter Order would be specifically reviewable by interlocutory appeal, Fla.App.R. 4.2(a), but for the fact that Nationwide's Motion to Dismiss was predicated upon the erroneous ground of lack of jurisdiction over its person. Nationwide did not raise the defense of insufficiency of service of process so the trial court had jurisdiction over its person once service was perfected. More properly, the Motion should have been grounded on failure to properly join an indispensable party. Although none of the Orders are subject to interlocutory review, in the exercise of our discretion, we treat this appeal as a Petition for Writ of Certiorari.

In April, 1976, Holmes brought suit against Emil Frantsi and his insurer, Nationwide, for damages resulting from a two car collision in which Mr. Holmes and Mr. Frantsi were the drivers. On July 21, 1976, the Defendants filed a Suggestion of Death of Defendant Emil Frantsi. On November 2, 1976, the Defendants moved to dismiss the complaint as to Mr. Frantsi on the ground that Plaintiff failed to move for substitution of another party within the 90-day period required by Fla.R.Civ.P. 1.260(a)(1). The Motion was granted. Defendant Nationwide then moved for summary judgment on the ground that Mr. Frantsi was an indispensable party to the action and Plaintiff could not pursue a direct action against Nationwide once Mr. Frantsi, or his personal representative, was no longer a defendant. The trial court denied Nationwide's Motion and Plaintiff was permitted to join the personal representative of Mr. Frantsi's estate as a Defendant. Nationwide then moved to dismiss the action on the erroneous ground of lack of jurisdiction over the person, asserting that the estate could not be liable if the insured, Mr. Frantsi, could not be liable. This Motion was denied.

The issue for our determination is whether it was error to allow Plaintiff to join the personal representative of Mr. Frantsi's estate in order to preserve a direct action against Nationwide.

Fla.R.Civ.P. 1.260(a)(1) concerns the substitution of proper parties following a suggestion of the death of a party. Once the death is suggested in the manner provided by the rule, a motion for substitution must be made within 90 days or "the action shall be dismissed as to the deceased party." The rule...