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County of Cumberland v. Kwap

Florida Court of Appeals, Fourth District

June 21, 2017

COUNTY OF CUMBERLAND, NEW JERSEY, Appellant,
v.
ANDREW K. KWAP, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal of non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Martin H. Colin, Judge; L.T. Case No. 2012CA004772 AJ.

          Scott L. Mendlestein of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Coral Gables, for appellant.

          Scott J. Edwards, of Scott J. Edwards, P.A., Boca Raton, for appellee.

          Kuntz, J.

         The County of Cumberland, New Jersey, appeals the circuit court's order denying its motion to dismiss for lack of personal jurisdiction. The court determined that the allegations in plaintiff Andrew W. Kwap's complaint were sufficient to satisfy due process and justify the exercise of personal jurisdiction over the County. We reverse because the court failed to account for the County's affidavit rebutting the allegations in the complaint.

         Background

         The County hired PTS America, LLC, an international prisoner extradition company, to transport Kwap from Palm Beach County to New Jersey. During the transport, Kwap was injured in an accident while in a van owned and operated by PTS.

         Following the accident, Kwap sued PTS and the County. In his first amended complaint, he alleged that PTS negligently transported him without safety restraints and that the County was vicariously liable for the negligence of its agent, PTS.

         The County filed a motion to dismiss for lack of personal jurisdiction. Specifically, the County argued that the court did not have personal jurisdiction under section 48.193(1)(b), Florida Statutes, because it did not commit a tort in Florida, and because the alleged tortfeasor, PTS, was an independent contractor, not its agent.

         The County attached an affidavit to its motion from the Sheriff of Cumberland County. The affidavit stated that PTS operated as an independent contractor because PTS used its own equipment and hired its own personnel; and because the County did not dictate or control any aspect of the transport, such as the route, timing, use of particular equipment, or the personnel employed by PTS.

         After allowing limited jurisdictional discovery, the court held a hearing on the County's motion to dismiss. At the hearing, the court heard argument from counsel, which included discussions regarding deposition testimony of a PTS employee. At the conclusion of the hearing, the court reserved ruling and later entered a written order denying the motion. In its order, the court stated that the first amended complaint contained sufficient allegations to exercise personal jurisdiction over the County.

         Analysis

         Whether a Florida court has personal jurisdiction over a non-resident defendant involves a two-step inquiry. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989). First, the court must determine whether the complaint alleges sufficient jurisdictional facts to bring the action within Florida's long-arm statute, section 48.193, Florida Statutes (2016). Id. at 502. Second, the court must determine whether sufficient ...


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