What does the Rule say?

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 39

SEPTEMBER 27, 2024

TRIAL COURT DID NOT ERR IN DENYING MOTION FOR ATTORNEY’S FEES BASED UPON AN OFFER OF JUDGMENT WHERE THE OFFER DID NOT STATE THAT IT RESOLVED ALL DAMAGES THAT WOULD OTHERWISE BE AWARDED IN A FINAL JUDGMENT IN THE ACTION

5979 Alton Road v. Stav Software, LLC, 49 Fla. L. Weekly D1918 (Fla. 3rd DCA Sept. 18, 2024):

The prevailing party sought attorneys’ fees based upon its offer of judgment.

The rule expressly requires that the offer of judgment states “that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served.” Fla. R. Civ. P. 1.442(c)(2)(B).

Because the appellant’s proposal did not state that it would resolve all damages in the action or use the language required by the rule, the trial court properly refused to enforce it.

TRIAL COURT ERRED BY DENYING DEFENDANT’S MOTION SEEKING TO QUASH SERVICE AND VACATE THE DEFAULT FINAL JUDGMENT, WHEN PLAINTIFF FAILED TO STRICTLY COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON A CORPORATION THROUGH A PRIVATE MAILBOX

Celebrity Actors Camp, Inc. v. Bred Benner, 49 Fla. L. Weekly D1922 (Fla. 2nd DCA Sept. 18, 2024):

The plaintiff sued the defendants for breach of a service contract that promised to provide the plaintiff’s son with celebrity training for commercials, television and film.

The plaintiff filed her complaint and served process on the defendants through a Florida Pak Mail, which is a store offering mailbox services. The defendants maintained a mailbox at Pak Mail and one of them had provided the Florida Division of Corporations with the address of the mailbox as the address for its officer and registered agent as well as the address of its principal office and mailing address.

The plaintiff secured a clerk’s default, entered when the defendants failed to answer the complaint. Upon learning of the initial default, the defendants unsuccessfully moved to vacate the default judgment and quash the service of process, leading them to appeal.

According to Section 48.031(6)(a), if the only address for a person to be served which is discoverable through public records is a private mailbox, substituted service may be made by leaving a copy of the process with the person in charge of the private mailbox, but only if the process server determines that the person to be served maintains a mailbox at that location. Claimants do not have carte blanche to make service of process on corporations at private mailbox addresses and must establish strict compliance with the statutory requirements.

In this case, the plaintiff failed to demonstrate compliance with the second requirement for service at the private mailbox. While the plaintiff contended that the private mailbox was the only way to accomplish service, and that he could not find another address for service of process, no evidence was presented that the only address discoverable through the public records for the corporation, its officers, directors, or registered agent was a private mailbox. An attorney’s argument regarding these facts is not a substitute for evidence.

Because these defendants were not properly served with the complaint, the court reversed the order, vacating the judgments and remanding for further proceedings.

ERROR TO ENTER SUMMARY JUDGMENT IN FAVOR OF THE INSURED’S ENTITLEMENT TO UM COVERAGE, BASED ON THE INSURER HAVING FAILED TO SEND THE INSURED A UM SELECTION/REJECTION FORM FOR OBTAINING A WRITTEN REJECTION—THE FACTS SHOW INSURED WAS NOT ENTITLED TO RECEIVE A NEW FORM FOR REJECTION

Progressive Select Insurance Co. v. Dunkle, 49 Fla. L. Weekly D1934 (Fla. 6th DCA Sept. 30, 2024):

A single man applied to Progressive for insurance coverage for his vehicles. The plaintiff was listed on the application as a rated driver because she lived at the same address. As a rated driver, the victim had rights to the bodily injury benefits under the policy.

Under the title “relationship” on the application, the man was identified as the insured and the plaintiff was identified as “other.” Progressive uses “other” to refer to someone unrelated by blood or marriage to the applicant.

The man subsequently signed the UM coverage selection/rejection form, choosing to reject all UM coverage. The form advised it would apply to all renewals and replacements of such policy.

Over a year later, the insured and the plaintiff married, and he changed his marital status on the policy, adding the plaintiff to his policy as a named insured. A revised renewal declarations page was issued shortly thereafter to reflect the changes, and both the insured and the plaintiff were listed as named insureds. The dec page showed that the insured had rejected UM coverage, and there was no premium charged for UM coverage.

Progressive did not send a new UM selection/rejection form when the plaintiff became a named insured. Although the plaintiff could have requested a change in coverage when she became a named insured, she did not. Every renewal declarations page that issued in the three years in between their marriage and the accident, rejected UM coverage.

Because the plaintiff becoming a named insured on the existing policy did not render the policy “new,” Progressive was not required to provide her with a new UM selection/rejection form when she joined her husband in the named insured category. Instead, the husband’s original rejection of UM coverage was still in effect, and the rejection applied to the original selection of non-stacked UM coverage which was applicable to all renewals, extensions, changes to an existing policy, unless an insured specifically requests a change and pays the additional premium (which had not occurred in this case).

THE TRIAL COURT LACKED DISCRETION TO SET ACTION FOR TRIAL AFTER PLAINTIFFS FILED A MOTION TO STRIKE THE DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES

Citizens Property Insurance Co. v. Borges, 49 Fla. L. Weekly D1936 (Fla. 6th DCA Sept. 20, 2024):

Citizens petitioned the court for a writ of mandamus compelling the trial court to remove the case from its trial docket because the case was no longer at issue.

An action is at issue after any motions directed to the last pleading served have been disposed of. Thereafter, any party may file and serve a notice that the action is at issue, and the court may set the matter for trial.

However, before the trial court set the matter for trial, the plaintiff had moved to strike Citizens’ answer and affirmative defenses.

By the plain meaning of Rule 1.440(a) the action was not at issue, and the trial court had no discretion to set the case for trial.