Florida Senate - 2022 COMMITTEE AMENDMENT
Bill No. CS for SB 1062
Ì1865626Î186562
LEGISLATIVE ACTION
Senate . House
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The Committee on Commerce and Tourism (Bradley) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 544 - 955
4 and insert:
5 service electronically by e-mail or other technology by any
6 person authorized to serve process in accordance with this
7 chapter, or by an attorney. The court may authorize other
8 methods of service consistent with the principles of due
9 process. In suits involving a breach of contract, the court may
10 consider authorizing the parties to effectuate service in the
11 manner provided for in the contractual notice provision of the
12 subject contract.
13 Section 9. Subsection (1) of section 48.111, Florida
14 Statutes, is amended to read:
15 48.111 Service on public agencies and officers.—
16 (1) Process against any municipal corporation, agency,
17 board, or commission, department, or subdivision of the state or
18 any county which has a governing board, council, or commission
19 or which is a body corporate shall be served:
20 (a) On the registered agent; or
21 (b) If the municipal corporation, agency, board, or
22 commission, department, or subdivision of the state does not
23 have a registered agent, or if the registered agent cannot
24 otherwise be served after one good faith attempt:
25 1. On the president, mayor, chair, or other head thereof;
26 and in the his or her absence of all persons listed in this
27 subparagraph;
28 2.(b) On the vice president, vice mayor, or vice chair, and
29 or in the absence of all persons listed in subparagraph 1. and
30 this subparagraph of the above;
31 3.(c) On any member of the governing board, council, or
32 commission, the manager of the governmental entity, if any, or
33 an in-house attorney for the governmental entity, if any, and in
34 the absence of all the persons listed in subparagraph 1.,
35 subparagraph 2., and this subparagraph;
36 4. On any employee of the governmental entity at the main
37 office of the governmental entity.
38 Section 10. Subsection (2) of section 48.151, Florida
39 Statutes, is amended to read:
40 48.151 Service on statutory agents for certain persons.—
41 (2) This section does not apply to substituted service of
42 process under s. 48.161 or s. 48.181 on nonresidents.
43 Section 11. Section 48.161, Florida Statutes, is amended to
44 read:
45 48.161 Method of substituted service on nonresident.—
46 (1) When authorized by law, substituted service of process
47 on a nonresident individual or a corporation or other business
48 entity incorporated or formed under the laws of any other state,
49 territory, or commonwealth, or the laws of any foreign country,
50 may or a person who conceals his or her whereabouts by serving a
51 public officer designated by law shall be made by sending
52 leaving a copy of the process to the office of the Secretary of
53 State by personal delivery; by registered mail; with a fee of
54 $8.75 with the public officer or in his or her office or by
55 mailing the copies by certified mail, return receipt requested;
56 by use of a commercial firm regularly engaged in the business of
57 document or package delivery; or by electronic transmission to
58 the public officer with the fee. The service is sufficient
59 service on a party that defendant who has appointed or is deemed
60 to have appointed the Secretary of State a public officer as
61 such party’s his or her agent for the service of process. The
62 Secretary of State shall keep a record of all process served on
63 the Secretary of State showing the day and hour of service.
64 (2) Notice of service and a copy of the process must shall
65 be sent forthwith by the party effectuating service or by such
66 party’s attorney by registered mail; by registered or certified
67 mail, return receipt requested; or by use of a commercial firm
68 regularly engaged in the business of document or package
69 delivery. In addition, if the parties have recently and
70 regularly used e-mail or other electronic means to communicate
71 between themselves, the notice of service and a copy of the
72 process must be sent by such electronic means or, if the party
73 is being served by substituted service, the notice of service
74 and a copy of the process must be served at such party’s last
75 known physical address and, if applicable, last known electronic
76 address. The party effectuating service shall file proof of
77 service or return receipts showing delivery to the other party
78 by mail or courier and by electronic means, if electronic means
79 were used, unless the party is actively refusing or rejecting
80 the delivery of the notice. An by the plaintiff or his or her
81 attorney to the defendant, and the defendant’s return receipt
82 and the affidavit of compliance of the party effectuating
83 service plaintiff or such party’s his or her attorney must of
84 compliance shall be filed within 40 days after on or before the
85 date return day of service on the Secretary of State process or
86 within such additional time as the court allows. The affidavit
87 of compliance must set forth the facts that justify substituted
88 service under this section and that show due diligence was
89 exercised in attempting to locate and effectuate personal
90 service on the party before using substituted service under this
91 section. The party effectuating service does not need to allege
92 in its original or amended complaint the facts required to be
93 set forth in the affidavit of compliance.
94 (3) When an individual or a business entity conceals its
95 whereabouts, the party seeking to effectuate service, after
96 exercising due diligence to locate and effectuate personal
97 service, may use substituted service pursuant to subsection (1)
98 in connection with any action in which the court has
99 jurisdiction over such individual or business entity. The party
100 seeking to effectuate service must also comply with subsection
101 (2); however, a return receipt or other proof showing acceptance
102 of receipt of the notice of service and a, or the notice and
103 copy of the shall be served on the defendant, if found within
104 the state, by an officer authorized to serve legal process by
105 the concealed party need not be filed, or if found without the
106 state, by a sheriff or a deputy sheriff of any county of this
107 state or any duly constituted public officer qualified to serve
108 like process in the state or jurisdiction where the defendant is
109 found. The officer’s return showing service shall be filed on or
110 before the return day of the process or within such time as the
111 court allows. The fee paid by the plaintiff to the public
112 officer shall be taxed as cost if he or she prevails in the
113 action. The public officer shall keep a record of all process
114 served on him or her showing the day and hour of service.
115 (4) The party effectuating service is considered to have
116 used due diligence if that party:
117 (a) Made diligent inquiry and exerted an honest and
118 conscientious effort appropriate to the circumstances to acquire
119 the information necessary to effectuate personal service;
120 (b) In seeking to effectuate personal service, reasonably
121 employed the knowledge at the party’s command, including
122 knowledge obtained pursuant to paragraph (a); and
123 (c) Made an appropriate number of attempts to serve the
124 party, taking into account the particular circumstances, during
125 such times when and where such party is reasonably likely to be
126 found, as determined through resources reasonably available to
127 the party seeking to secure service of process.
128 (5)(2) If any individual person on whom service of process
129 is authorized under subsection (1) dies, service may be made in
130 the same manner on his or her administrator, executor, curator,
131 or personal representative in the same manner.
132 (9)(3) This section does not apply to persons on whom
133 service is authorized under s. 48.151.
134 (6)(4) The Secretary of State public officer may designate
135 an individual some other person in his or her office to accept
136 service.
137 (7) Service of process is effectuated under this section on
138 the date the service is received by the Department of State.
139 (8) The Department of State shall maintain a record of each
140 process served pursuant to this section and record the time of
141 and the action taken regarding the service.
142 Section 12. Section 48.181, Florida Statutes, is amended to
143 read:
144 48.181 Substituted service on nonresidents and foreign
145 business entities nonresident engaging in business in state or
146 concealing their whereabouts.—
147 (1) As used in this section, the term “foreign business
148 entity” means any corporation or other business entity that is
149 incorporated, formed, or existing under the laws of any other
150 state, territory, or commonwealth, or the laws of any foreign
151 country.
152 (2) The acceptance by any individual person or persons,
153 individually or associated together as a copartnership or any
154 other form or type of association, who is a resident are
155 residents of any other state, territory, or commonwealth, or of
156 any foreign or country, or by any foreign business entity and
157 all foreign corporations, and any person who is a resident of
158 the state and who subsequently becomes a nonresident of the
159 state or conceals his or her whereabouts, of the privilege
160 extended by law to nonresidents and others to operate, conduct,
161 engage in, or carry on a business or business venture in this
162 the state, or to have an office or agency in this the state, is
163 deemed to constitute constitutes an appointment by the
164 individual or persons and foreign business entity corporations
165 of the Secretary of State of this the state as its their agent
166 on whom all process in any action or proceeding against the
167 individual or foreign business entity them, or any combination
168 thereof of them, arising out of any transaction or operation
169 connected with or incidental to the business or business venture
170 may be served as substituted service in accordance with this
171 chapter. The acceptance of the privilege is signification of the
172 agreement of the respective individual or persons and foreign
173 business entity corporations that the process served against it
174 in accordance with this chapter them which is so served is of
175 the same validity as if served personally on the individual
176 persons or foreign business entity corporations.
177 (3)(2) If a foreign business entity corporation has
178 registered to do business a resident agent or officer in this
179 the state and has maintained its registration in an active
180 status or otherwise continued to have a registered agent,
181 personal service of process must first shall be attempted served
182 on the foreign business entity in the manner and order of
183 priority described in this chapter as applicable to the foreign
184 business entity. If, after due diligence, the party seeking to
185 effectuate service of process is unable to effectuate service of
186 process on the registered agent or other official as provided in
187 this chapter, the party may use substituted service of process
188 on the Secretary of State resident agent or officer.
189 (4) Any individual or foreign business entity that conceals
190 its whereabouts is deemed to have appointed the Secretary of
191 State as its agent on whom all process may be served, in any
192 action or proceeding against it, or any combination thereof,
193 arising out of any transaction or operation connected with or
194 incidental to any business or business venture carried on in
195 this state by such individual or foreign business entity.
196 (5)(3) Any individual or foreign business entity that
197 person, firm, or corporation which sells, consigns, or leases by
198 any means whatsoever tangible or intangible personal property,
199 through brokers, jobbers, wholesalers, or distributors to any
200 individual person, firm, or corporation, or other business
201 entity in this state is conclusively presumed to be both engaged
202 in substantial and not isolated activities within this state and
203 operating, conducting, engaging in, or carrying on a business or
204 business venture in this state.
205 (6) Service pursuant to this section must be effectuated in
206 the manner prescribed by s. 48.161.
207 Section 13. Section 48.184, Florida Statutes, is created to
208 read:
209 48.184 Service of process for removal of unknown parties in
210 possession.—
211 (1) This section applies only to actions governed by s.
212 82.03, s. 83.21, s. 83.59, or s. 723.061 and only to the extent
213 that such actions seek relief for the removal of unknown parties
214 in possession of real property. The provisions of this section
215 are cumulative to other provisions of law or rules of court
216 about service of process, and all other such provisions are
217 cumulative to this section.
218 (2) A summons must be issued in the name of “Unknown Party
219 in Possession” when the name of an occupant of real property is
220 not known to the plaintiff and the property occupied by the
221 unknown party is identified in the complaint and summons. A
222 separate summons must be issued for each such unknown occupant.
223 (3) The plaintiff shall attempt to serve the summons on any
224 unknown occupant of the property described in the summons and
225 complaint. If service on the unknown occupant is not effectuated
226 on the first attempt, at least two additional attempts must be
227 made. The three attempts to obtain service must be made once
228 during business hours, once during nonbusiness hours, and once
229 during a weekend. The process server shall make an inquiry as to
230 the name of the unknown occupant at the time of service. The
231 return of service must note the name of the occupant if obtained
232 by the process server or state that the name of the occupant
233 could not be obtained after inquiry. If the name of the occupant
234 becomes known to the plaintiff through the return of service or
235 otherwise, without notice or hearing thereon, all subsequent
236 proceedings must be conducted under the true name of such
237 occupant and all prior proceedings are deemed amended
238 accordingly.
239 (4) Service of process must also be made on unknown
240 occupants by both of the following means:
241 (a) By attaching the summons and complaint to a conspicuous
242 location on the premises involved in the proceedings.
243 (b) Upon issuance of the summons, by the plaintiff
244 providing the clerk of the court with one additional copy of the
245 summons and complaint for each unknown occupant and a prestamped
246 envelope for each unknown occupant addressed to the unknown
247 occupant at the address of the premises involved in the
248 proceedings. The clerk of the court shall immediately mail a
249 copy of the summons and complaint by first-class mail, note the
250 fact of mailing in the docket, and file a certificate in the
251 court file of the fact and date of mailing. The clerk of the
252 court shall charge such fees for such services as provided by
253 law.
254 (5) Service is effective on the unknown occupant in
255 possession on the later of the date that personal service is
256 made, the date of attaching the summons and complaint to a
257 conspicuous location on the premises, or upon mailing by the
258 clerk.
259 (6) The judgment and writ of possession must refer to any
260 unknown occupant in possession by name if the name is shown on
261 the return of service or is otherwise known to the plaintiff. If
262 the name of any unknown occupant in possession is not shown on
263 the return of service or otherwise known to the plaintiff and
264 service has been effectuated as provided in this section, the
265 judgment and writ of possession must refer to each such person
266 as “Unknown Party in Possession,” and the writ of possession
267 must be executed by the sheriff by dispossessing the occupants
268 and placing the plaintiff in possession of the property.
269 Section 14. Subsections (1) and (2) of section 48.194,
270 Florida Statutes, are amended to read:
271 48.194 Personal service in another outside state,
272 territory, or commonwealth of the United States.—
273 (1) Except as otherwise provided herein, service of process
274 on a party in another persons outside of this state, territory,
275 or commonwealth of the United States must shall be made in the
276 same manner as service within this state by any person
277 authorized to serve process in the state where service shall be
278 made the person is served. No order of court is required. A
279 court may consider the return-of-service form described in s.
280 48.21, or any other competent evidence, must be filed with the
281 court stating the time, manner, and place of service. The court
282 may consider such evidence in determining whether service has
283 been properly made. Service of process on persons outside the
284 United States may be required to conform to the provisions of
285 the Hague Convention on the Service Abroad of Judicial and
286 Extrajudicial Documents in Civil or Commercial Matters.
287 (2) When where in rem or quasi in rem relief is sought in a
288 foreclosure proceeding as defined by s. 702.09, and the address
289 of the person to be served is known, service of process on a
290 person in another state, territory, or commonwealth outside of
291 the United States this state where the address of the person to
292 be served is known may be made by registered mail as follows:
293 (a) The party’s attorney or the party, if the party is not
294 represented by an attorney, shall place a copy of the original
295 process and the complaint, petition, or other initial pleading
296 or paper and, if applicable, the order to show cause issued
297 pursuant to s. 702.10 in a sealed envelope with adequate postage
298 addressed to the person to be served.
299 (b) The envelope must shall be placed in the mail as
300 registered mail.
301 (c) Service under this subsection is deemed shall be
302 considered obtained upon the signing of the return receipt by
303 the person allowed to be served by law.
304 Section 15. Section 48.197, Florida Statutes, is created to
305 read:
306 48.197 Service in a foreign country.—
307 (1) Service of process may be effectuated in a foreign
308 country upon a party, other than a minor or an incompetent
309 person, as provided in any of the following:
310 (a) By any internationally agreed-upon means of service
311 reasonably calculated to give actual notice of the proceedings,
312 such as those authorized by the Hague Convention on the Service
313 Abroad of Judicial and Extrajudicial Documents in Civil or
314 Commercial Matters.
315 (b) If there is no internationally agreed-upon means of
316 service, or if an international agreement allows but does not
317 specify other means, by a method reasonably calculated to give
318 actual notice of the proceedings:
319 1. As prescribed by the foreign country’s law for service
320 in that country in an action in its courts of general
321 jurisdiction;
322 2. As the foreign authority directs in response to a letter
323 rogatory or letter of request; or
324 3. Unless prohibited by the foreign country’s law, by:
325 a. If serving an individual, delivering a copy of the
326 summons and of the complaint to the individual personally; or
327 b. Using any form of mail that the clerk addresses and
328 sends to the party and which requires a signed receipt.
329 (c) Pursuant to motion and order by the court, by other
330 means, including electronically by e-mail or other technology,
331 which the party seeking service shows is reasonably calculated
332 to give actual notice of the proceedings and is not prohibited
333 by international agreement, as the court orders.
334 (2) Service of process may be effectuated in a foreign
335 country upon a minor or an incompetent person in the manner
336 prescribed by subparagraph (1)(b)1., subparagraph (1)(b)2., or
337 paragraph (1)(c).
338 Section 16. Subsection (15) of section 49.011, Florida
339 Statutes, is amended to read:
340 49.011 Service of process by publication; cases in which
341 allowed.—Service of process by publication may be made in any
342 court on any party identified in s. 49.021 in any action or
343 proceeding:
344 (15) To determine paternity, but only as to:
345 (a) The legal father in a paternity action in which another
346 man is alleged to be the biological father, in which case it is
347 necessary to serve process on the legal father in order to
348 establish paternity with regard to the alleged biological
349 father; or
350 (b) The legal mother when there is no legal father.
351 Section 17. Effective upon this act becoming a law,
352 subsection (2), paragraph (a) of subsection (3), and subsection
353 (4) of section 766.106, Florida Statutes, are amended to read:
354 766.106 Notice before filing action for medical negligence;
355 presuit screening period; offers for admission of liability and
356 for arbitration; informal discovery; review.—
357 (2) PRESUIT NOTICE.—
358 (a) After completion of presuit investigation pursuant to
359 s. 766.203(2) and before prior to filing a complaint for medical
360 negligence, a claimant shall notify each prospective defendant
361 of intent to initiate litigation for medical negligence by at
362 least one of the following verifiable means:
363 1. United States Postal Service certified mail, return
364 receipt requested;
365 2. United States Postal Service mail with a tracking
366 number;
367 3. An interstate commercial mail carrier or delivery
368 service; or
369 4. Any person authorized by law to serve process.
370 (b)1. Proof of service made pursuant to this subsection and
371 delivered to an address on file with the Department of Health,
372 the Secretary of State, or the Agency for Health Care
373 Administration creates a rebuttable presumption that service was
374 received by the prospective defendant.
375 2. If service is challenged during subsequent litigation,
376 the court must conduct an evidentiary hearing to determine
377 whether the prospective defendant or a person legally related to
378 the prospective defendant was provided notice pursuant to this
379 subsection and, if so, the date of such service. If service is
380 challenged under this subparagraph, it must be challenged in the
381 first response to the complaint, and if:
382 a. The court determines that service was properly made at
383 the prospective defendant’s address as listed on the state
384 licensing agency website or an address on file with the
385 Secretary of State; and
386 b. The prospective defendant proves by the greater weight
387 of the evidence that neither the prospective defendant nor a
388 person legally related to the prospective defendant at the time
389 of service knew or should have known of the service,
390
391 the court must stay the case for a presuit investigation period
392 pursuant to s. 766.106, and the statute of limitations and
393 statute of repose must be tolled from the time service was
394 properly made at the prospective defendant’s address as listed
395 on the state licensing agency website or an address on file with
396 the Secretary of State. The tolling shall end at the conclusion
397 of the presuit investigation period provided for in this
398 subsection, and the stay of litigation shall automatically end
399 at the conclusion of the presuit investigation period by
400 certified mail, return receipt requested, of intent to initiate
401 litigation for medical negligence.
402 (c) Notice to each prospective defendant must include, if
403 available, a list of all known health care providers seen by the
404 claimant for the injuries complained of subsequent to the
405 alleged act of negligence, all known health care providers
406 during the 2-year period before prior to the alleged act of
407 negligence who treated or evaluated the claimant, copies of all
408 of the medical records relied upon by the expert in signing the
409 affidavit, and the executed authorization form provided in s.
410 766.1065.
411 (d)(b) Following the initiation of a suit alleging medical
412 negligence with a court of competent jurisdiction, and service
413 of the complaint upon a prospective defendant, the claimant
414 shall provide a copy of the complaint to the Department of
415 Health and, if the complaint involves a facility licensed under
416 chapter 395, the Agency for Health Care Administration. The
417 requirement of providing the complaint to the Department of
418 Health or the Agency for Health Care Administration does not
419 impair the claimant’s legal rights or ability to seek relief for
420 his or her claim. The Department of Health or the Agency for
421 Health Care Administration shall review each incident that is
422 the subject of the complaint and determine whether it involved
423 conduct by a licensee which is potentially subject to
424 disciplinary action, in which case, for a licensed health care
425 practitioner, the provisions of s. 456.073 applies apply and,
426 for a licensed facility, the provisions of part I of chapter 395
427 applies apply.
428 (3) PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.—
429 (a) A no suit may not be filed for a period of 90 days
430 after notice is delivered mailed to any prospective defendant.
431 During the 90-day period, the prospective defendant or the
432 prospective defendant’s insurer or self-insurer shall conduct a
433 review as provided in s. 766.203(3) to determine the liability
434 of the prospective defendant. Each insurer or self-insurer shall
435 have a procedure for the prompt investigation, review, and
436 evaluation of claims during the 90-day period. This procedure
437 must shall include one or more of the following:
438 1. Internal review by a duly qualified claims adjuster;
439 2. Creation of a panel comprised of an attorney
440 knowledgeable in the prosecution or defense of medical
441 negligence actions, a health care provider trained in the same
442 or similar medical specialty as the prospective defendant, and a
443 duly qualified claims adjuster;
444 3. A contractual agreement with a state or local
445 professional society of health care providers, which maintains a
446 medical review committee; or
447 4. Any other similar procedure which fairly and promptly
448 evaluates the pending claim.
449
450 Each insurer or self-insurer shall investigate the claim in good
451 faith, and both the claimant and prospective defendant shall
452 cooperate with the insurer in good faith. If the insurer
453 requires, a claimant must shall appear before a pretrial
454 screening panel or before a medical review committee and shall
455 submit to a physical examination, if required. Unreasonable
456 failure of any party to comply with this section justifies
457 dismissal of claims or defenses. There shall be no civil
458 liability for participation in a pretrial screening procedure if
459 done without intentional fraud.
460 (4) SERVICE OF PRESUIT NOTICE AND TOLLING.—The notice of
461 intent to initiate litigation must shall be served within the
462 time limits set forth in s. 95.11. However, upon mailing of the
463 notice of intent to initiate litigation, as provided in
464 subparagraph (2)(a)1., subparagraph (2)(a)2., or subparagraph
465 (2)(a)3., and during the 90-day period provided in subsection
466 (3), the statute of limitations is tolled as to all prospective
467 potential defendants. If the notice of intent to initiate
468 litigation is served by a process server as provided in
469 subparagraph (2)(a)4., the statute of limitations is tolled upon
470 the process server’s first attempt to serve the prospective
471 defendant and continues during the 90-day period as to all
472 prospective defendants. Upon stipulation by the parties, the 90
473 day period may be extended and the statute of limitations is
474 tolled during any such extension. Upon receiving notice of
475 termination of negotiations in an extended period, the claimant
476 shall have 60 days or the remainder of the period of the statute
477 of limitations, whichever is greater, within which to file suit.
478 As used in this section, the terms “prospective” and “potential”
479 are interchangeable.
480 ================= T I T L E A M E N D M E N T ================
481 And the title is amended as follows:
482 Delete lines 30 - 62
483 and insert:
484 certain circumstances; amending s. 48.111, F.S.;
485 revising provisions related to service on public
486 agencies and officers; authorizing service on
487 specified persons under certain circumstances;
488 amending s. 48.151, F.S.; revising the applicability
489 of provisions relating to service on statutory agents
490 for certain persons; amending s. 48.161, F.S.;
491 revising provisions relating to substituted service;
492 providing for substituted service on individuals or
493 corporations or other business entities; specifying
494 actions that may be considered due diligence in
495 effectuating service; specifying when service is
496 considered effectuated; requiring the Department of
497 State to maintain certain records; amending s. 48.181,
498 F.S.; defining the term “foreign business entity”;
499 revising provisions relating to substituted service;
500 providing for substituted service on certain
501 nonresidents and foreign business entities and on
502 individuals and foreign business entities concealing
503 their whereabouts; creating s. 48.184, F.S.; providing
504 for service of process for removal of unknown parties
505 in possession of real property; amending s. 48.194,
506 F.S.; revising provisions relating to service outside
507 this state but within the United States; deleting
508 provisions relating to service outside the United
509 States; creating s. 48.197, F.S.; providing for
510 service in a foreign country; amending s. 49.011,
511 F.S.; providing for constructive service on the legal
512 mother in certain situations; amending s. 766.106,
513 F.S.; revising requirements for service of presuit
514 notice before filing a medical negligence complaint;
515 creating a rebuttable presumption that service was
516 received by a prospective defendant in certain
517 circumstances; providing court duties if service is
518 challenged during subsequent litigation; revising
519 provisions concerning tolling of the statute of
520 limitations upon service of presuit notice by
521 specified means; specifying that the terms
522 “prospective” and “potential” are interchangeable;
523 amending ss. 495.145, 605.0117,