Opinion
No. 94-46.
December 16, 1994.
Appeal from the Circuit Court for Orange County, Lawrence R. Kirkwood, Judge.
Nolan Carter and Linda Schwichtenberg, Orlando, for appellant.
Bobby G. Palmer, Jr., Eubanks, Hilyard, Rumbley, Meier Lengauer, P.A., Orlando, for appellee.
Kimberly Lynn Tipton sued Walt Gallagher, as sheriff, because of injuries she received from a collision with one of his deputies. Although Gallagher was timely served with (and responded to) the complaint, service on the Department of Insurance was not effected within the 120-day period required by Rule 1.070(j), Rules of Civil Procedure. The trial court dismissed the complaint on this basis. We reverse.
After the briefs in this case were filed, but before oral argument, this court decided Turner v. Gallagher, 640 So.2d 120 (Fla. 5th DCA 1994), which is dispositive of this case. We held in Turner, and we now reaffirm, that the rule applies only to defendants in the litigation. Since the Department of Insurance is not a party defendant in this action, the court erred in dismissing the complaint.
We again acknowledge conflict with Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1992).
REVERSED.
W. SHARP and GRIFFIN, JJ., concur.