Mon 24th Nov | 2014

Service In A Foreign Land

General BY


When most of us find out that a defendant who has committed a tort in the United States actually lives somewhere outside of the United States, said revelation generally makes our stomachs turn and our eyes glaze over. One attorney recently faced this when his client was hit and seriously injured by a Colombian national, while she drove a car she rented from Alamo (she had purchased the supplemental liability insurance (SLI) policy, which provided for $1 million in liability coverage for her as the insured).

In Alvarado-Fernandez v. Mazoff (Fla. 4th DCA October 8, 2014), the plaintiff’s attorney made many attempts to serve Ms. Alvarado-Fernandez, but came up empty each time, finally serving the Secretary of State in accordance with the provisions of §48.161.

The defendant sought to dismiss the plaintiff’s complaint for failure to strictly comply with the two service treaties in effect between Columbia and the United States, or alternatively because plaintiff failed to comply with the substituted service statutes. In essence, the appellate court provided a bit of a bit of a “primer” on the applicability of the Hague Convention as well as other international service treaties.

First, the court explained that international legal agreements entered into by the United States have an effect on domestic law depending on whether the agreement is “self-executing” or “non-self-executing.” International treaties are considered self-executing if they have the force of law without the need for subsequent legislative action. Treaties are considered not self-executing and are understood to require implementing legislation.

The Hague Convention became effective in the United States on February 10, 1969, and is “of equal dignity with acts of Congress and enjoys the constitutional status of supreme law of the land.” It is self-executing and preempts all inconsistent methods of service prescribed by state law and in all cases to which it applies (namely all civil and commercial matters where there is an occasion to transmit a judicial or extrajudicial document for service abroad). The Hague Convention provides several methods to accomplish service however, it is expressly inapplicable in cases where the location of the person to be served is unknown.

The Inter-American Service Contention on Letters Rogatory and Additional Protocol (the IASC), on the other hand, which was signed on January 30, 1975, and amended on May 8, 1979, sets forth procedures for obtaining service of process over individuals in the signatory nations, stating that the Convention shall apply to the performance of procedural acts like service of process. However, the IASC further provides that letters rogatory shall be executed in accordance with the laws and procedural rules of the state of destination.

The court explained that several U.S. courts have held that the IASC is neither the exclusive nor a mandatory channel for transmission of service of process between signatories, unlike the Hague Convention which is mandatory. As a result, strict compliance with the provisions of the IASC to the exclusion of utilizing any other methods is not required.

In the Alvarado-Fernandez case, the court concluded that because the Hague Convention did not apply, and because the IASC was not mandatory, the only thing the court had to evaluate was whether plaintiff properly complied with the substituted service of process statutes (§48.161, 48.171 and 48.181). The record reflected and the court found that the plaintiff had persistently searched for the defendant in Columbia, and first attempted to serve her when he filed his complaint in 2009. However, the address and driver’s license number the defendant driver had supplied to the rental car company and to the police for the accident report, were incorrect, and there was no other information to establish where she was located.

Plaintiff sought information from Alamo, scheduled five separate hearings, and prevailed upon the trial judge to compel discovery regarding this information. Still, plaintiff came up empty-handed.

The plaintiff hired two separate attorneys to try and find the defendant in Columbia. The plaintiff provided these attorneys with defendant’s driver’s license number and the police report, her date of birth, and her supposed address, yet neither attorney was able to locate her. When one of the retained attorneys found someone through social media who he believed was the defendant, plaintiff sent a copy of the summons and complaint to this person’s work address by registered mail, but never received a return receipt and was not able to track the mailing outside of the United States.

Ultimately, the court found plaintiff complied with the substitute service statutes and in light of the diligence he showed, the court upheld the trial court’s denial of defendant’s motion to dismiss for insufficient service.