Wells v. Michaud

• Decision Date: 16 December 1987
• Docket Number: No. 4-86-1590,4-86-1590
• Citation: 12 Fla. L. Weekly 2870,516 So.2d 1066
• Parties: 12 Fla. L. Weekly 2870 Marguerite J. WELLS and John Wells, her husband, Appellants, v. Elizabeth MICHAUD, Gerald Michaud, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 1066

516 So.2d 1066

12 Fla. L. Weekly 2870

Marguerite J. WELLS and John Wells, her husband, Appellants, v.Elizabeth MICHAUD, Gerald Michaud, etc., et al., Appellees.

No. 4-86-1590.

District Court of Appeal of Florida Fourth District.

Dec. 16, 1987.

James A. Brown, Fort Lauderdale, for appellants.

Glenn J. Webber of Ligman, Martin, Shiley, Neswiacheny & Evans, Fort Lauderdale, for appellees.

HERSEY, Chief Judge.

We are requested to reverse the trial court's dismissal of a personal injury claim.Dismissal was based upon failure to timely prosecute and failure to effect service of process upon an indispensable party.We reverse.

Dismissal on the first ground stated is governed by rule 1.420(e),Florida Rules of Civil Procedure.The operative motion to dismiss was filed on January 21, 1986.The record discloses four instances of record activity during the one-year period directly preceding the filing of the motion.The question is whether one or more of those incidents constituted an affirmative act directed toward disposition of the case.SeeBair v. Palm Beach Newspapers, Inc., 387 So.2d 517(Fla. 4th DCA1980).Here, as in Bair, at least two of the incidents are in that category, so dismissal for lack of prosecution was improper.

The next question is whether the action was nevertheless properly dismissed because an indispensable party had not been served.We need not extensively treat the propriety of joinder and service upon defendants' insurance carrier.At the time the cause of action arose, section 627.7262, Florida Statutes, prohibiting joinder of the insurance carrier, had not been enacted.This statute does not apply retroactively, therefore direct joinder of the insurance carrier is proper under these facts.SeeVanBibber v. Hartford Accident &amp Indemnity Insurance Co., 439 So.2d 880(Fla.1983).See alsoOsborne v. Elizabeth Massey Investment Corporation, 467 So.2d 1095(Fla. 4th DCA1985).Additionally, service was properly perfected pursuant to section 48.151(3), Florida Statutes(1985).

The record is not clear whether any of the individual defendants/insureds have been served with process.It is clear, however, that service has been attempted on more than one occasion.While failure to join an indispensable party is grounds for dismissal, the mere inability to timely serve such a party is not.

While the issues we treat here do not follow the lead of either of the parties' appellate briefs, we think the correct posture of the...