Supreme Court of Florida
In Re: Amendments to Florida Rules of Civil Procedure 1.070 and 1.650—(Per Curiam; FLSC; 1/19/23). This is a fast-tracked amendment to the rule on service of process and the rule for medical malpractice presuit screening in light of 2022 amendments to chapters 48 and 766 of Florida Statutes. On January 2, 2023, chapter 2022-190, Laws of Florida, took effect. The new laws made sweeping changes to the manner of service of process under sections 48.061, 48.062, 48.071, 48.081, 48.091, 48.101, 48.102, 48.111, 48.161, 48.181, 48.184, 48.194, 48.197, 89.011, 495.145, and 605.0117, 607.17101, 607.1520, 617.0504, 617.1510, 620.1117, and 620.1907. There are also important and extensive changes to the medmal presuit procedures under section 766.106. http://laws.flrules.org/2022/190 is a must-read for anyone who initiates civil suits. In regard to the medmal change, service need not be by certified mail any longer. Now, you can serve by certified mail, USPS with a tracking number, an interstate commercial mail carrier or delivery service, or a process server. Proof of service to an address on file with the Department of Health, Secretary of State, or ACHA creates a rebuttable presumption that service was received by the prospective defendant. If service is challenged, the trial court must hold a hearing to find out whether the prospective defendant “or a person legally related to the prospective defendant” was provided the notice and the date of the service. Service must be challenged in the FIRST response to the complaint, and if the court determines that service was made but neither the prospective defendant nor a person legally related to the defendant knew or should have known of the service, the court must stay the case for a presuit investigation period, and the statute of limitations and statute of repose is tolled from the time of service until the end of the conclusion of the presuit investigation, and the stay of litigation shall automatically end at the conclusion of the presuit investigation period. Consequently, the Supreme Court of Florida immediately amended Rule 1.070, and it made sweeping amendments to Rule 1.650. The new language in the rule incorporates the four options for service. The new rule deletes the option for challenging service by a motion to dismiss or abate and clarifies that service must be challenged by the first response to the complaint, and that the court must conduct an evidentiary hearing following such a challenge. The Rule incorporates section 766.106(2)(a)(1-4) in regard to time for service and tolling.
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC