Legal Question in Personal Injury in Florida

Property Damage in Small Claims Case

I was involved in a car wreck in which the other driver rear ended me causing frame damage to my car. He was cited for careless driving by the police. I have tried to settle with his insurance company for Loss of Use and the diminished value of my car. I have filed a small claims case against the other driver. He is the only defendant named in the suit.

My understanding is that his insurance company is obligated to defend him. The sheriff has been unable to serve the defendent with the summons at this point. If the defendent is not served before the pre-trial hearing date, is the insurance company obligated to appear if I notify them of the court date by faxing them a copy of the summons/notification? If so, and neither party appears for court, would I then win the case? Does the insurance company have to be notified of the court date by the defendant? Or does it matter how they are notified, as long as they are notified?

If I have to reschedule the case because the defendant was not served, and neither party shows for the rescheduled case after I serve the defendent by publication, will I be able to collect from the insurance company or only from the defendant?

Thank you for your help.


Asked on 11/25/02, 1:31 pm

3 Answers from Attorneys
Randall Gilbert Gilbert & Caddy P.A.

Re: Property Damage in Small Claims Case

Your answers lie in Florida Chapter 48 regarding service of process. They are not easy to understand so if you do not find your answers there, I recommend hiring a local attorney to assist you. Good luck,

Randall Gilbert

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Answered on 11/25/02, 1:35 pm
Michael Tobin Michael M. Tobin, P.A.

Re: Property Damage in Small Claims Case

You must get service of process if you want a valid judgment. The insurance company must be called uponto defend by their insured in order for the company to be liable.

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Answered on 11/25/02, 2:05 pm
George Savage George S. Savage, P.A.

Re: Property Damage in Small Claims Case

So many questions, so little time. First, under the Small claims rules (Rule 7.0 et seq. of the Florida Rules of Civil Procedure), you can serve a defendant by certified mail if the person is a Florida resident (which I assume the person is). It has to be sent by the Clerk of Court though or an attorney of record.

If you know his insurance company, send a copy by certified mail to them as well, just in case. If you have not effected service at the time of your pre-trial conference, the judge will roll it over for the following month or so.

Service by publication is a little tricky. But if no one shows up, and you show that you have published in accordance with Florida law, the judge at the pre-trial will give you a default judgment for the amount of your damages.

Good luck.

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Answered on 11/25/02, 4:19 pm


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