The Bank tried only once to personally Aserve@ or deliver legal papers to the homeowners at the Kissimmee address. The papers were returned with a note stating the property was vacant. Although the Bank had an old address in England, it did not attempt delivery at that address. Instead, the Bank filed an Aaffidavit of constructive service@ alleging the Bank had made a diligent search and inquiry to discover the residence of the homeowners.

The Bank published a Anotice of action,@ a type of legal notice, in a newspaper stating that the Bank had filed a complaint against the homeowners. The Bank then obtained a default against the wife. The husband sent a letter to the court claiming he tried to reinstate the mortgage and asked the court to dismiss the lawsuit. Neither homeowner attended a pretrial conference and the court granted a final judgment to the Bank. The trial court denied the homeowners= motion to set aside the judgment.

The appellate court explained that a Bank may Aserve process@ by publication of a notice in a newspaper for a foreclosure action but only when the Bank cannot obtain personal service. The court concluded that Deutsche Bank did not conduct a diligent search to get the homeowners= address for proper service. The Bank did not follow leads that would reveal their residence in England.

A diligent search for a defendant=s address requires inquiry of people who are likely to know the defendant=s location. Fundamental fairness is the reason for requiring a diligent search to help ensure that a defendant has notice of a lawsuit. The court concluded the Bank did not comply with the requirements for constructive service because it did not conduct a diligent search. Most owners would agree with this ruling because it reinforces the need for due process.

WORKERS= COMPENSATION: IMMUNITY OR LIABILITY?

Associations often hire contractors to build or rebuild structures on its property. Who is liable when someone is injured during construction? It may depend on who was responsible for obtaining workers= compensation insurance.

A Florida appellate court recently ruled that an employee of a general contractor who received workers= compensation benefits from the general contractor may sue his employer=s subcontractor for damages arising out of the negligence of the subcontractor=s employee. In Bruno v. Destiny Transportation, Inc. 31 Fla. L. Weekly D688 (Fla. 2^nd DCA, March 3, 2006), a landowner contracted with a general construction contractor to rebuild concrete walls on his property. The general contractor in turn contracted with a company to provide a concrete pump and pump operators. The subcontractor leased two employees from one of its affiliates to operate the pump equipment.

An employee of the general contractor was injured while helping to pour concrete on the construction site. Although the employee obtained workers= compensation benefits from the general contractor, the employee filed a personal injury lawsuit against the subcontractor and the two workers the subcontractor leased to operate the concrete pump.

The subcontractor and two employees argued the lawsuit was barred because the workers= compensation statutes granted them immunity. The trial court agreed and granted judgment for the subcontractor and the two employees.

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