NATIONAL SAFETY ASSOCIATES, INC., a Tennessee corporation, Appellant,
v.
ALLSTATE INSURANCE COMPANY, a foreign corporation, authorized to do business as subrogee of Rose Chiaia, Appellee.
District Court of Appeal of Florida, Second District.
Pamela A. Chamberlin of Mitrani, Rynor, Adamsky, Macaulay & Zorrilla, P.A., Miami, for Appellant.
Karl C. Landsteiner of Goetz, Hartman & Landsteiner, Fort Myers, for Appellee.
SCHEB, JOHN M., (Senior) Judge.
National Safety Associates, Inc. (NSA), challenges the trial court's order denying its motion to quash service of process by Allstate Insurance Company. NSA argues that service was invalid because it did not comply with section 48.081(1), Florida Statutes (1997). We agree and reverse.
Allstate sued NSA in the circuit court in Collier County. A summons issued on December 14, 1998, indicated that the complaint was to be served upon Jay Martin as the registered agent for NSA. On January 13, 1999, Clarence Turks, Jr., a deputy sheriff in Tennessee, delivered the summons and complaint to Michael Ferraris, *317 NSA's Director of Human Resources, at NSA's offices in Memphis, Tennessee. NSA did not respond, and a default was entered against it on October 10, 1999, followed by a default judgment on October 18, 1999.
On November 3, 1999, NSA filed a notice of special appearance "for the purposes of preserving its challenge to service of process and personal jurisdiction." NSA filed Jay Martin's affidavit in which he stated that he was president of NSA and that he had not become aware of the suit until September 7, 1999, some eight months after service of process on Michael Ferraris. Additionally, NSA filed Mr. Ferraris' affidavit stating that, on January 13, 1999, he was Director of Human Resources but that he did not hold any of the positions mentioned in section 48.081(1) that would make him eligible to receive service on behalf of NSA. The trial court set aside the default and the default judgment and reserved ruling on the motion to quash service of process to allow Allstate leave to file an amended affidavit of service.
In his deposition, Mr. Martin stated that Mr. Ferraris was "at the bottom of [the] management layer" within NSA. At deposition, Deputy Turks stated that he had asked for Mr. Martin and was told he was not there; nevertheless, he did not seek to serve the summons and complaint on any of the other officers named in section 48.081(1). Rather, Deputy Turks said the receptionist directed him to Mr. Ferraris, who accepted service. The trial court ruled that there was "no clear and convincing evidence" that service was not properly made and denied NSA's motion to quash. This appeal ensued.
Section 48.081(1) provides:
(1) Process against any private corporation, domestic or foreign, may be served:
(a) On the president or vice president, or other head of the corporation;
(b) In the absence of any person described in paragraph (a), on the cashier, treasurer, secretary, or general manager;
(c) In the absence of any person described in paragraph (a) or paragraph (b), on any director; or
(d) In the absence of any person described in paragraph (a), paragraph (b), or paragraph (c), on any officer or business agent residing in the state.
Proper service of process is indispensable for the court to obtain personal jurisdiction over a defendant. Despite the fact that service of process was attempted in Tennessee to subject NSA to the jurisdiction of the Florida court, service was required to be made in accordance with Florida law. To obtain personal jurisdiction over a corporate defendant, a return of process showing service on an inferior officer of a corporation must show that all superior officers designated in the statute were absent when service was attempted. Largay Enters., Inc. v. Berman,
Allstate contends that Telf Corp. v. Gomez,
Because Deputy Turks served a company employee without first determining that the president was outside the jurisdiction and without seeking to serve one of the other officers named in section 48.081(1), the service on Mr. Ferraris was invalid. NSA properly preserved its objection to service by raising the deficiency in the proposed answer attached to its motion to set aside the default. Fla. R. Civ. P. 1.140(b). We reject Allstate's contention that NSA waived any complaint against the mode of service of process, because it sought affirmative relief before raising the issue of service of process. Florida courts have repeatedly held that filing a motion to vacate a default does not waive jurisdictional defenses where such defenses are raised simultaneously with the motion. See, e.g., Ginsberg v. Lamour,
Accordingly, we reverse the trial court's order denying NSA's motion to quash service of process.
PARKER, A.C.J., and WHATLEY, J., Concur.
