Summary
reversing and remanding with directions to enter judgment for the County where the plaintiff had failed to comply with mandatory service of process requirement of section 768.28, which was raised as an affirmative defense and properly asserted on a motion for directed verdict before the case went to the jury
Summary of this case from Public Health Trust v. AcandaOpinion
No. 98-87
Opinion filed May 19, 1999. JANUARY TERM, 1999
An Appeal from the Circuit Court of Dade County, David L. Tobin, Judge, L.T. No. 95-6408.
Robert A. Ginsburg, Miami-Dade County Attorney, and Thomas A. Tucker Ronzetti and Scott D. Fabricius, Assistant County Attorneys, for appellant.
Robert J. Bryan; Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin Perwin, P.A., and Joel Perwin, for appellees.
Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
The County appeals from a judgment entered pursuant to a jury verdict in a negligence action. For the following reasons, we reverse the order denying the County's Motion for Judgment Notwithstanding the Verdict and remand with directions for the trial court to enter final judgment in favor of the County.
Section 768.28(7) of the Florida Statutes provides that "[I]n actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also . . . upon the Department of Insurance. . . ." (emphasis added). § 768.28(7), Fla. Stat. (1995). In this case, the plaintiff did not serve process upon the Department of Insurance. The County raised the lack of service of process as an affirmative defense; moved for a directed verdict; and moved for judgment notwithstanding the verdict. The defense was therefore properly raised and preserved for review.
Because the plaintiff did not serve process on the Department of Insurance, the County was immune from suit, and the trial court erred in denying the County's motion for a directed verdict. See Metropolitan Dade County v. Braude, 593 So.2d 563, 564 (Fla. 3d DCA 1992) (holding that where County asserted defense of lack of service upon the Department of Insurance, the trial court erred in denying the County's motion for a directed verdict). Because the lack of service of process is dispositive, we do not reach the other issues on appeal.
Reversed and remanded with directions to enter judgment for the County.