Robinson v. Cabell Huntington Hospital
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
_____________
No. 23963
_____________
CARRIE ROBINSON, AN INFANT UNDER THE AGE OF
EIGHTEEN
WHO SUES BY HER MOTHER AND NEXT FRIEND, SHIRLEY HARGIS,
AND SHIRLEY HARGIS AND PAUL HARGIS, IN THEIR OWN RIGHT,
Appellants
v.
CABELL HUNTINGTON HOSPITAL, INC., BOARD OF
TRUSTEES
OF CABELL HUNTINGTON HOSPITAL, A STATUTORY CORPORATION,
DBA CABELL HUNTINGTON HOSPITAL; AND LEROY H. MERKLE, JR.,
PERSONAL REPRESENTATIVE OF THE ESTATE OF CARMELO L. TERLIZZI,
Appellees
____________________________________________________________________
Appeal from the Circuit Court of Cabell County
Honorable Dan O'Hanlon, Judge
Civil Action No. 94-C-735
AFFIRMED
____________________________________________________________________
Submitted: September 17, 1997
Filed: November 21, 1997
Gerald L. Lacy, Esq.
Charleston, West Virginia
Attorney for the Appellants
Barry M. Taylor, Esq.
Jenkins, Fenstermaker, Krieger,
Kayes & Agee
Huntington, West Virginia
Attorney for Cabell Huntington Hospital
James M. Brown, Esq.
Roslyn C. Payne, Esq.
Brown & Levicoff
Beckley, West Virginia
Attorneys for Merkle
JUSTICE MAYNARD delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. The
long-arm statute "shall not be retroactive and the
provisions hereof shall not be available to a plaintiff in a
cause of action arising from or growing out of any of said acts
occurring prior to the effective date of this section [June 7,
1978]." W.Va. Code §56-3-33(g)
(1984).
2. "In
the absence of a provision in a contract specifically stating
that such contract shall inure to the benefit of a third person,
there is a presumption that the contracting parties did not so
intend and in order to overcome such presumption the implication
from the contract as a whole and the surrounding circumstances
must be so strong as to be tantamount to an express
declaration." Syllabus Point 2, Ison v. Daniel Crisp Corp.,
146 W.Va. 786, 122 S.E.2d 553 (1961).
3. A
circuit court can obtain jurisdiction by attaching the property
of a nonresident debtor located in the county.
4. "A contingent liability, ex contractu, is not subject to an order of attachment and garnishment." Syllabus Point 4, M.W. Kellogg Co. v. Concrete Accessories Corp., 157 W.Va. 763, 204 S.E.2d 61 (1974).
5. Any
professional liability insurance policy which is a contingent
liability is not subject to an order of attachment and
garnishment, so that quasi in rem jurisdiction cannot be
conferred in a circuit court.
Maynard, Justice:
The
appellants, Carrie Robinson, an infant at the time the underlying
action was filed, and her natural parents, Shirley Hargis and
Paul Hargis, appeal the April 4, 1996 order of the Circuit Court
of Cabell County which dismissed the appellants' complaint
against the appellee, Leroy H. Merkel, Jr., personal
representative of the Estate of Dr. Carmelo L. Terlizzi, for lack
of personal jurisdiction. The order also denied the appellants'
motion to amend their complaint to join Dr. Terlizzi's insurance
carrier as a party defendant or, in the alternative, to perfect
service upon Dr. Terlizzi's estate by serving his insurance
carrier. For the reasons that follow, we affirm the circuit
court's order.
I.
FACTS
The essential facts are not in dispute, and we hereafter set forth those relevant to our discussion. On May 12, 1977, Shirley Hargis was admitted to Cabell Huntington Hospital for the delivery of her expected child. On that same day, Mrs. Hargis gave birth to Carrie Robinson who was delivered by Dr. Carmelo L. Terlizzi. At this time, Dr. Terlizzi was a resident of Huntington in Cabell County, and licensed by the State
of West Virginia to practice medicine. Dr. Terlizzi maintained
a liability insurance policy, on an occurrence basis, with
Standard Fire Insurance Company/Aetna Casualty and Surety
Company.See footnote 1 1
Sometime after 1977, Dr. Terlizzi moved to Florida where he
died in 1987.
Carrie
Robinson suffered brain damage at birth. According to the
appellants, in 1994 they discovered that there was reason to
believe that the brain damage was the result of medical
negligence by her health care providers in 1977. On October 24,
1994, the appellants commenced the underlying action in the
Circuit Court of Cabell County against Leroy H. Merkle, Jr., the
personal representative of the estate of Dr. Terlizzi, and the
Cabell Huntington Hospital, Inc. In their complaint, the
appellants alleged in part that "[a]s a result of the
negligence of the Defendants, . . . Carrie Robinson was injured
during her birth or thereafter, and suffered hypoxia, sustained
brain damage and was otherwise harmed and injured."
On August 11,
1995, the estate of Dr. Terlizzi moved the court to dismiss all
claims made by the appellants against it based upon a lack of in
personam jurisdiction of the courts of West Virginia over Dr.
Terlizzi's Florida estate. Specifically, the court found that
W.Va. Code § 56-3-33, West Virginia's long -arm statute,
"by its very terms is not retroactive and the provisions are
not available to a plaintiff in a cause of action arising from or
growing out of any said acts or occurring prior to the effective
date of that statute's enactment which was June 7, 1978[.]"
The appellants subsequently filed a motion to amend their
complaint to add Dr. Terlizzi's insurance carrier as a party
defendant. In the alternative, the appellants attempted to
perfect service on Dr. Terlizzi's estate by serving his insurance
carrier.
By order of
April 4, 1996, the court granted the appellee's motion to dismiss
for lack of personal jurisdiction and denied the appellants'
motion for leave to file an amended complaint or, in the
alternative, to perfect service on Dr. Terlizzi's insurance
carrier. That order is the subject of this appeal.
II.
DISCUSSION
Initially, we note that "[a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syllabus Point 2, State ex rel. McGraw v.
Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). With this in mind, we now review the issues before
us.
The
first issue raised by the appellants is whether the circuit court
erred in granting the appellee's motion to dismiss for lack of
jurisdiction. Essentially, the appellant's assert that there
exist sufficient minimum contacts between Dr. Terlizzi and this
State so that the exercise of jurisdiction over his Florida
estate does not violate traditional concepts of fair play and
substantial justice as articulated by the Supreme Court in International
Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95
(1945). In light of the fact that the cause of Carrie Robinson's
brain damage was not discovered until 1994, the appellants
contend that they should be allowed to utilize the long-arm
statute in effect in 1994. Otherwise, they will be forever barred
from pursuing their claim.
"The primary long-arm statuteSee footnote 2 2 is W.Va. Code, 56-3-33(a) [1984] which confers in personam jurisdiction on a nonresidentSee footnote 3 3 if the nonresident engages in one of the
acts specified [in the statute]." See footnote 4 4 Abbott v.
Owens-Corning Fiberglas Corp., 191 W.Va. 198, 207, 444 S.E.2d 285, 294 (1994) (footnotes added).
A
court must use a two-step approach when analyzing whether
personal jurisdiction exists over a foreign corporation or other
nonresident. The first step involves determining whether the
defendant's actions satisfy our personal jurisdiction statutes
set forth in W.Va. Code, 31-1-15 [1984] and W.Va. Code, 56-3-33
[1984]. The second step involves determining whether the
defendant's contacts with the forum state satisfy federal due
process.
Syllabus Point 5, Id.
It is clear
that the appellants have failed to satisfy the first step in the
analysis above, in that Dr. Terlizzi's actions fail to satisfy
the requirements of W.Va. Code § 56-3- 33. According to the
clear and unambiguous language of W.Va. Code § 56-3-33(g), the
long-arm statute "shall not be retroactive and the
provisions hereof shall not be available to a plaintiff in a
cause of action arising from or growing out of any of said acts
occurring prior to the effective date of this section [June 7,
1978]." We have previously said in Syllabus Point 1 of VanKirk
v. Young, 180 W.Va. 18, 375 S.E.2d 196 (1988) ( quoting
Syllabus Point 5, State of West Virginia v. General Daniel
Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353
(1959) "[w]hen a statute is clear and unambiguous and the
legislative intent is plain, the statute should not be
interpreted by the courts, and in such case it is the duty of the
courts not to construe but to apply the statute." The
allegations set forth in the appellants' complaint concern acts
or omissions that occurred on or about May 12, 1977. Thus,
according to the express terms of the statute, it is unavailable
for use by the appellants for the purpose of obtaining personal
jurisdiction over Dr. Terlizzi's personal estate. We find,
therefore, that the circuit court did not err in dismissing the
appellants' complaint for lack of personal jurisdiction.
Second, the appellants assert that the circuit court erred in denying their motion to amend their complaint to join Dr. Terlizzi's malpractice insurance carrier. It is the appellants' contention that the malpractice insurance policy issued by Standard Fire
Insurance Company/Aetna Casualty and Surety Company on behalf
of Dr. Terlizzi was written not only for the protection of Dr.
Terlizzi, but also for the benefit of the injured patient.
Therefore, the appellants contend they should be able to maintain
a direct action against the insurance company as a third-party
beneficiary. In support of this contention, the appellants cite Hall
v. Ocean Accident & Guarantee Corporation, 122 W.Va. 188, 9 S.E.2d 45 (1940), as well as several cases from other
jurisdictions which hold that liability policies exist for the
protection of both the insured tortfeasor and the injured third
party. See Rivera v. Nevada Medical Liability Insurance Co., 814 P.2d 71 (Nev. 1991); St. Paul Fire and Marine Ins. Co. v.
Asbury, 149 Ariz. 565, 720 P.2d 540 (1986); St. Paul Fire and
Marine Ins. Co. v. Mitchell, 164 Ga.App. 215, 296 S.E.2d 126
(1982).
We find, under
the circumstances of this case, the appellants cannot bring a
direct action against Dr. Terlizzi's liability insurer.
As
a general rule, in the absence of policy or statutory provisions
to the contrary, one who suffers injury which comes within the
provisions of a liability insurance policy is not in privity of
contract with the insurance company, and cannot reach the
proceeds of the policy for the payment of his claim by an action
directly against the insurance company.
46A C.J.S. Insurance § 1407 (1993).
In West Virginia, however, there are circumstances in which an
injured plaintiff can bring a direct action against a liability
insurer. In Syllabus Point 1 of Broy v. Inland Mut. Ins.
Co., 160 W.Va. 138, 233 S.E.2d 131 (1977) this Court stated
"[i]f an insured with coverage under a liability insurance
policy does not pay the underlying judgment entered in a personal
injury action, the injured plaintiff may institute a direct
action against the insurance company to recover the amount of the
judgment up to the limits of the policy."
Also, "[a]n injured plaintiff may bring a declaratory
judgment action against the defendant's insurance carrier to
determine if there is policy coverage before obtaining a judgment
against the defendant in the personal injury action where the
defendant's insurer has denied coverage." Syllabus Point 3,
Christian v. Sizemore, 181 W.Va. 628, 383 S.E.2d 810 (1989).
Finally, this Court has held that an action against an insurer
for bad faith and unfair settlement practices can be joined in
the same complaint as the underlying personal injury suit against
the insured. State ex rel. State Farm Fire v. Madden, 192 W.Va.
155, 451 S.E.2d 721 (1994). It is clear, however, that none of
these exceptions apply to the facts of the present case.
We also find the appellants are not entitled to maintain a direct suit against Dr. Terlizzi's liability insurer as a third party beneficiary of the insurance contract between Dr. Terlizzi and his insurance carrier. "An insurance policy and all rights arising from the policy are controlled by principles of contract, rather than property law." Mazon v. Camden Fire Ins. Ass'n, 182 W.Va. 532, 533, 389 S.E.2d 743, 744 (1990) (citation omitted). "It is well-established that a contract of insurance is a personal contract between
the insurer and the insured named in the policy." Id., 182
W.Va. at 534, 389 S.E.2d at 745 (citations omitted). W.Va. Code
§ 55-8-12 (1923) states:
If
a covenant or promise be made for the sole benefit of a person
with whom it is not made, or with whom it is made jointly with
others, such person may maintain, in his own name, any action
thereon which he might maintain in case it had been made with him
only, and the consideration had moved from him to the party
making such covenant or promise.
"[T]his Court has held that in order for a contract
concerning a third party to give rise to an independent cause of
action in the third party, it must have been made for the third
party's sole benefit." Woodford v. Glenville State College
Hous. Corp., 159 W.Va. 442, 225 S.E.2d 671, 674 (1976) citing
Ison v. Daniel Crisp Corp., 146 W.Va. 786, 122 S.E.2d 553
(1961); United Dispatch v. Albrecht Co., 135 W.Va. 34, 62 S.E.2d 289 (1950).See
footnote 5 5 See W.Va. Code § 55-8-12 (1923).
Further,
[i]n
the absence of a provision in a contract specifically stating
that such contract shall inure to the benefit of a third person,
there is a presumption that the contracting parties did not so
intend and in order to overcome such presumption the implication
from the contract as a whole and the surrounding circumstances
must be so strong as to be tantamount to an express declaration.
Syllabus Point 2, Ison v. Daniel Crisp Corp., 146 W.Va. 786,
122 S.E.2d 553 (1961).
As noted previously, this Court does not have a copy of the
liability insurance policy as a part of the record in this case.
However, the appellees' brief asserts "[t]here is no
language within the body of the liability policy in question
which would indicate that the benefits to be derived from such
policy/contract, shall inure to the benefit of a third-person not
a party to the contract." This is not disputed by the
appellants. The appellants have not demonstrated that the
contracting parties here intended to confer a benefit upon them
by their contract, much less that the contract was for their sole
benefit.
As noted above, the appellants hinge their argument in favor of direct action against Dr. Terlizzi's insurer on this Court's statement in Hall, supra, as well as the determination of other courts, that "[t]he agreement of the insurer to pay lawful damages on behalf of the insured constituted a contract for the benefit of the person injured." See footnote 6 6 Hall, 122 W.Va. at 190, 9 S.E.2d at 46. In Hall, however, this Court upheld the plaintiff's
right to proceed against the defendant's insurer only after a
judgment was rendered against the defendant which he failed to
satisfy. Moreover, in light of our law on third party
beneficiaries, we fail to see how the cases cited by the
appellants are dispositive of the question before us. We find,
therefore, that the appellants are precluded from bringing a
direct action against Dr. Terlizzi's liability insurer.
Last, the
appellants contend the circuit court erred in denying their
motion to perfect service on Dr. Terlizzi's estate by serving the
summons and complaint on Dr. Terlizzi's liability insurer.
Essentially, the appellants' argument here is bottomed on
fairness. Specifically, the appellants aver that they should be
permitted to perfect service of process on the estate of Dr.
Terlizzi by serving his liability insurer. This argument is made
in light of the nature of the malpractice insurance policy, which
provides coverage for any act of negligence occurring in 1977
regardless of when the claim was asserted. The appellants
conclude, therefore, that the insurer is contractually obligated
to pay for any negligent acts, and that to deny them a forum in
which to litigate their claims "is not only a violation of
due process but is inconsistent with public policy and equitable
principles to decide and resolve disputes on the merits."
The appellants cite no cases in support of their argument. In his
response brief, the appellee treats this issue as one concerning
quasi in rem jurisdiction.
We are aware
of nothing in our law that would allow the appellants to perfect
service of process on the personal representative of Dr.
Terlizzi's estate by serving Dr. Terlizzi's malpractice liability
insurer. According to Rule 4 of the West Virginia Rules of Civil
Procedure (1997)See footnote
7 7 , in relevant part, service of process shall be
made upon an individual,
(A)
by delivering a copy of the summons and of the complaint to him
personally; or by delivering a copy of the summons and of the
complaint at his dwelling house or usual place of abode to a
member of his family above the age of sixteen (16) years and
giving to such person information of the purport of the summons
and complaint; or by delivering a copy of the summons and of the
complaint to an agent or attorney in fact authorized by
appointment or statute to receive or accept service of process in
his behalf [.] (emphasis added).
The rule is clear that in order for Dr. Terlizzi's liability insurer to receive service on his behalf, or on behalf of the personal representative of his estate, the liability insurer must
have been authorized to do so pursuant to a statute or by
agreement.See footnote 8 8
There is no evidence of such an authorization in this case.
Also, we do
not believe that the appellants can obtain quasi in rem jurisdiction
under these facts.
A
quasi-in-rem action is basically what the name implies --- a
halfway house between in rem and in personam jurisdiction. The
action is not really against the property; rather it involves the
assertion of a personal claim of the type usually advanced in an
in personam action and the demand ordinarily is for a money
judgment, although in some contexts the objective may be to
determine rights in certain property. The basis for transforming
the suit from one in personam to an action against the
defendant's property is the attachment or garnishment of some or
all of the property he may have in the jurisdiction. If the
plaintiff eventually secures a judgment in
a quasi-in-rem action, it will be satisfied to the extent
possible out of the attached property.
4 Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure § 1070, (1987) (emphasis added).
Further,
It
often has been said that the property must be attached or
garnished as a prerequisite to the exercise of jurisdiction. The
apparent source of this requirement in the context of quasi-in-
rem actions is Pennoyer v. Neff, in which the Supreme Court
indicated that "seizure or some equivalent act" prior
to judgment is necessary to endow a court with that type of
jurisdiction.
Id., (footnotes omitted).
In Gee v. Gibbs, 162 W.Va. 821, 824, 253 S.E.2d 140, 142
(1979), this Court stated that "a circuit court can obtain
jurisdiction by attaching the property of a nonresident debtor
located in the county," and discussed at length such
attachment in aid of jurisdiction. The Court explained that,
[w]hen
no personal jurisdiction is obtained over a nonresident
defendant, the attachment suit is in the nature of a proceeding quasi
in rem against the property within the court's custody. No
personal judgment can be rendered against a defendant who is not
personally served or who fails to make an appearance that confess
personal jurisdiction. Judgment and recovery in cases where
jurisdiction is obtained by attachment cannot exceed the value of
the property attached.
Gee, 162 W.Va. at 826, 253 S.E.2d at 143 (citations
omitted). In Gee, the Court concluded that a vested remainder
interest in a trust, the situs of which is West Virginia, can be
attached pursuant to W.Va. Code § 38-7-1 et seq. so as to
confer quasi in rem jurisdiction in a circuit court.See footnote 9 9
In
the present case, however, a quasi in rem action would be
against the alleged property interest found in the contract of
insurance between Dr. Terlizzi and his liability insurer. We do
not believe that such an interest can be attached so as to confer
quasi in rem jurisdiction in a circuit court.See footnote 10 10 This
Court has held that "[a] contingent liability, ex
contractu, is not subject to an order of attachment and
garnishment." Syllabus Point 4, M.W. Kellogg Co. v.
Concrete Accessories Corp., 157 W.Va. 763, 204 S.E.2d 61 (1974).
In Kellogg the Court explained:
"'A
contingent debt, though arising out of contract, can not be
garnisheed, as it would be unjust to the garnishee to render a
judgment against him on a contract when the amount apparently
due, according to the terms of the contract, may be extinguished
by subsequent events . . .'
* * *
"In
order to attach a debt due in the future it must be a certain
debt which will become payable upon the lapse of time
and not a contingent liability, which may become a debt or not
on the performance of some other acts or the happening of some
uncertain event. Drake on Attachments and Garnishment, sec.
559."
Kellogg, 157 W.Va. at 770, 204 S.E.2d at 66 ( quoting Minotti
v. Brune, 94 W.Va. 181, 187-188, 118 S.E. 149, 151 (1923).
The insurance
policy at issue is uncertain and contingent since it may never
become due and payable. Any duty of the liability insurer to
defend Dr. Terlizzi's estate in an action for damages is
contingent upon the institution of an action against his estate
by proper service of process. Further, the duty to indemnify Dr.
Terlizzi's estate is contingent upon a judgment rendered against
it. Because the insurance policy is a contingent liability and
not subject to attachment and garnishment, quasi in rem jurisdiction
cannot be conferred in a circuit court.See footnote 11 11 See Housley v.
Anaconda Company, 19 Utah 2d 124, 427 P.2d 390 (1967), Belcher
v. Government Emp. Ins. Co., 387 A.2d 770 (1978).
We hold, therefore, that any professional liability insurance
policy which is a contingent liability is not subject to an order
of attachment and garnishment, so that quasi in rem jurisdiction
cannot be conferred on a circuit court.
In conclusion,
we find that the express terms of the long-arm statute prevent
the appellants from obtaining personal jurisdiction over Dr.
Terlizzi's Florida estate. Also, the appellants are unable to
maintain a direct action against Dr. Terlizzi's liability insurer
under any exceptions to the general rule disallowing such
actions, or as third party beneficiaries of the insurance
contract. Finally, the appellants cannot serve process on Dr.
Terlizzi's liability insurer in lieu of his estate because they
have not demonstrated that the insurer has been authorized as an
agent for that purpose, and quasi in rem jurisdiction over the
insurance policy simply cannot be conferred on a circuit court
under the facts of this case. For these reasons, we affirm the
circuit court's order.
Affirmed.
Footnote: 1
1 A copy of the
insurance policy was not made a part of the record submitted to
this Court. In their brief, however, the appellants describe the
policy as one that,
would provide insurance for any act of negligence which occurred in 1977 regardless of when the claim was asserted. This is in contrast to a claims-made policy whereby a malpractice insurance carrier agrees to provide protection during a period when a claim is actually filed regardless of the time of the alleged negligent act.
Footnote: 2 2 The second long-arm statute, W.Va. Code § 31-1-15 (1997), pertains only to corporations and is not relevant here.
Footnote: 3 3 W.Va. Code § 56-3-33(e)(2) defines "nonresident" in part as "any person, other than voluntary unincorporated associations, who is not a resident of this State or a resident who has moved from this State subsequent to engaging in such act or acts[.]"
Footnote: 4
4 These acts
include:
(1)
Transacting any business in this State;
(2)
Contracting to supply services or things in this State;
(3)
Causing tortious injury by an act or omission in this State;
(4)
Causing tortious injury in this State by an act or omission
outside this State if he regularly does or solicits business, or
engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered in this State;
(5)
Causing injury in this State to any person by breach of warranty
expressly or impliedly made in the sale of goods outside this
State when he might reasonably have expected such person to use,
consume or be affected by the goods in this State: Provided, That
he also regularly does or solicits business, or engages in any
other persistent course of conduct, or derives substantial
revenue from goods used or consumed or services rendered in this
State;
(6)
Having an interest in, using or possessing real property in this
State; or
(7)
Contracting to insure any person, property or risk located within
this State at the time of contracting.
Footnote: 5
5 The Court in Woodford
proceeded to explain, however, that "a majority of the Court
today questions such a restrictive interpretation of the
statute," and stated in Syllabus Point 2:
Where
plaintiff seeks recovery as a third party beneficiary under a
contract to which he is not a party under W.Va. Code, 55-8-12
[1923], it is necessary that plaintiff demonstrate that the
contracting parties intended to confer a benefit upon the
plaintiff by their contract.
We believe that the plain wording of the statute merits such a restrictive interpretation.
Footnote: 6 6 Many of the cases cited by the appellants concerned declaratory actions to determine whether and to what extent coverage was afforded by the insurance policies at issue. None involved the situation found here where the injured plaintiff asserted rights as a third-party beneficiary to an insurance policy where the insured could not be joined as a defendant.
Footnote: 7 7 Rule 4 of the West Virginia Rules of Civil Procedure was amended after the appellants attempted service of process on the personal representative of Dr. Terlizzi's Florida estate in 1994, but the amendments did not affect the part of the rule applicable here.
Footnote: 8
8 Examples of
statutory authorizations of agency for the purpose of service of
process include W.Va. Code § 56-3-31 (1997) concerning
"actions by or against nonresident operators of motor
vehicles involved in highway accidents." According to W.Va.
Code § 56-3-31(b),
[f]or
purposes of service of process as provided in this section, every
insurance company shall be deemed the agent or attorney-in-fact
of every nonresident motorist insured by such company if the
insured nonresident motorist is involved in any accident or
collision in this state and service of process cannot be effected
upon said nonresident through the office of the secretary of
state. Upon receipt of process as hereinafter provided, the
insurance company may, within thirty days, file an answer or
other pleading or take any action allowed by law on behalf of the
defendant.
Footnote: 9 9 W.Va. Code § 38-7-7 (1923) provides that "[e]very attachment issued under the provisions of this article may be levied upon any estate, real or personal, of the defendant named therein, or so much thereof as is sufficient to pay the amount for which it issues.
Footnote: 10 10 There is no indication in the record that the appellants herein sought to attach the liability insurance policy at issue.
Footnote: 11 11 In the appellee's brief, the appellants' reply brief, and in oral argument before the Court, the parties discussed the issue of quasi in rem jurisdiction in light of the Supreme Court decision of Rush v. Savchuk, 444 U.S. 320, 100 S. Ct. 571, 62 L. Ed. 2d 516 (1980). In the Syllabus of Rush the Supreme Court held, in part, that "[a] State may not constitutionally exercise quasi in rem jurisdiction over a defendant who has no forum contacts by attaching the contractual obligation of an insurer licensed to do business in the State to defend and indemnify him in connection with the suit." According to the appellee, this holding forecloses the exercise of quasi in rem jurisdiction in this case. The appellants, on the other hand, assert that Rush is simply a restatement of International Shoe, supra., and that jurisdiction here satisfies the requirements of fair play, substantial justice and due process. We do not find the resolution of this question necessary in deciding the issue before us.
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