Colley v. Dyer
Annotate this Case
Colley v. Dyer
1991 WY 153
821 P.2d 565
Case Number: 90-210
Decided: 12/02/1991
Supreme Court of Wyoming
ALICE IONE HALSTEAD COLLEY, AS PERSONAL REPRESENTATIVE OF JODY GLENN DODGION, DECEASED, AND AS ADMINISTRATRIX OF THE ESTATE OF JODY GLENN DODGION, DECEASED, AND ON BEHALF OF ALICE IONE HALSTEAD, AS GUARDIAN AND GUARDIAN AD LITEM FOR JORDAN JODY HALSTEAD; AND ON BEHALF OF JUDY BUTLER, GLENN DODGION, BRYAN LEE BUTLER, AMANDA COLLEEN BUTLER, AND KAYLA DAWN BUTLER, APPELLANT (PLAINTIFF),
v.
TEDDY RAY DYER,
APPELLEE (DEFENDANT).
Appeal from the District
Court, SweetwaterCounty, Jere Ryckman,
J.
Daniel M. Hesse of Meyer
and Williams, Jackson, for appellant.
David B. Hooper of Hooper
Law Associates, P.C., Riverton, for appellee.
Before URBIGKIT, C.J.,
THOMAS, CARDINE and GOLDEN, JJ., and KALOKATHIS, District Judge.
KALOKATHIS, District
Judge.
[¶1.] This case concerns an
appeal in a wrongful death action taken by appellant, Alice Ione Halstead Colley
and those she represents, against appellee, Teddy Ray Dyer, from a district
court order dismissing the complaint upon the grounds of insufficiency of
service of process. Dyer was the driver of the vehicle involved in an accident
resulting in fatal injuries to his passenger, Jody Glenn Dodgion, when the
vehicle struck a cable strung across the exit road from the Green River,
Wyoming
landfill. A heavy steel chain attached to the end of the cable came through the
back window of the vehicle, striking Dodgion in the head.
[¶2.] Soon after filing her
complaint, Colley unsuccessfully attempted to make personal service of process
upon Dyer at "
B & R Trailer
Court, Rock Springs, Wyoming82901
." The return on the summons
indicated that the deputy sheriff was "[u]nable to locate" Dyer. Colley then
pursued service of process under Wyoming's non-resident motorist statute, Wyo.
Stat. § 1-6-301 (1988). That statute provides for substitute service of process
on the secretary of state and requires that notice of such service, along with a
copy of the process, be served upon a defendant either personally or by
certified mail to his last known address. The plaintiff must file an affidavit
of compliance with the clerk of the court.1 Colley's attorney filed an
affidavit stating that notice was sent to Dyer at "B & R Trailer Court, Rock
Springs, Wyoming 82901;" to an insurance adjuster in care of State Farm
Insurance Company; and, to Dyer's and Dodgion's employer who, at the time of the
accident, owned the vehicle involved in the accident.
[¶3.] An answer was filed by
Dyer through counsel hired by the insurance company to defend him. That answer
raised various affirmative defenses, including allegations that process and
service of process were defective.
[¶4.] W.R.C.P. 12(h) affords
an option as to certain defenses. The defenses of insufficiency of process and
insufficiency of service of process may be asserted in a responsive pleading or
made by motion. The defenses at issue were properly raised in the answer. These
defenses were preserved throughout the proceeding as evidenced by Dyer's
pretrial memorandum and were never waived.2
[¶5.] Thus, the issue
presented for resolution involves the question of whether the certified mailing
of notice to Dyer at "B & R Trailer Court, Rock Springs, Wyoming 82901,"
without any reference to trailer space # 57 where Dyer once resided, satisfies
the requirements of Wyo. Stat. § 1-6-301. Before this question can be answered,
the requirements of Wyo. Stat. § 1-6-301 must be defined. This exercise
necessarily implicates federal due process.
[¶6.] In Wuchter v. Pizzutti,
276 U.S. 13, 48 S. Ct. 259, 72 L. Ed. 446
(1928), the court held that a non-resident motorist statute which contained no
provision for attempted notice to a non-resident defendant violated due process.
The due process standard required notice to the defendant, "so as to make it
reasonably probable that he will receive actual notice." Id. at 19, 48 S. Ct. at
260.
[¶7.] After Wuchter, Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950) refined the federal due process
standard.
[¶8.] Mullane involved the
sufficiency of notice by publication. Recognizing that an absent defendant does
not have an absolute right to be notified of the proceedings, a qualified right
emerged which placed into the balance the interest of the state. The application
of the balancing test led to the conclusion that statutory publication notice
was sufficient for those, "whose interests or whereabouts could not with due
diligence be ascertained * * *." Id. at 317, 70 S. Ct. at 659. Thus, the court,
in effect, held that substitute service was available only upon an initial
showing of a diligent effort to locate the absent defendant.
[¶9.] This approach was
affirmed in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478,
490, 108 S. Ct. 1340, 1347, 99 L. Ed. 2d 565 (1988) (quoting Mennonite Bd. of
Missions v. Adams, 462 U.S. 791, 798 n. 4, 103 S. Ct. 2706, 2711 n. 4, 77 L. Ed. 2d 180 (1983)), and was extended to protect creditors in a probate proceeding which
required the personal representative to make "`reasonably diligent efforts'" to
identify creditors of the estate, rather than relying on publication notice
alone.
[¶10.] Since federal due process requires that a
diligent effort be made to locate an absent defendant before means of substitute
service become available, we must interpret Wyo. Stat. § 1-6-301 in light of
this requirement.
[¶11.] In other jurisdictions, non-resident
motorist statutes providing that notice be sent to a defendant's last known
address have been interpreted to require the plaintiff to exercise due diligence
in attempting to locate the absent defendant, or in ascertaining the defendant's
last known address. The cases applying a diligence requirement have done so to
comply with the Wuchter standard, i.e., that it be reasonably probable that the
defendant receive actual notice. See Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1971) and Drinkard v. Eastern
Airlines, Inc., 290 S.W.2d 175 (Mo. App. 1956).
[¶12.] In two recent opinions, the Washington
and Utah Supreme Courts, seeking to meet the constitutional requirements of
Mullane, have concluded that a diligence requirement is a necessary component to
their respective non-resident motorist statutes. See Carlson v. Bos, 740 P.2d 1269 (Utah
1987) and Martin v. Meier, 111 Wn.2d 471, 760 P.2d 925 (1988) (statute included
a due diligence requirement).
[¶13.] As set out in Mullane, a balancing test
must be applied which weighs the interests of Dyer against the interests of the
state in order to determine the proper form of notice. The state has an interest
in ensuring safe highways and streets. The legislature has expressed the state's
interest in making certain that its residents have available to them a local
forum in which to resolve their legal disputes with non-resident motorists.3 Dyer's interest is to receive
notice of the pending action against him and to have the opportunity to defend
against that action. Thus, we interpret Wyo. Stat. § 1-6-301 to implicitly
require the plaintiff to exercise due diligence in attempting to locate an
absent defendant.
[¶14.] Knowing that diligent efforts to locate
Dyer are required, we must ask what comprises the "diligent efforts" needed to
satisfy federal due process.
[¶15.] Concerning the concept of due diligence,
the Supreme Court of Utah stated:
"The diligence to be
pursued and shown . . . is that which is reasonable under the circumstances and
not all possible diligence which may be conceived. Nor is it that diligence
which stops just short of the place where if it were continued might reasonably
be expected to uncover an address . . . of the person on whom service is sought.
. . . Due diligence must be tailored to fit the circumstances of each case. It
is that diligence which is appropriate to accomplish the end sought and which is
reasonably calculated to do so."
Carlson, 740 P.2d at 1277
n. 13 (quoting Parker v. Ross, 117 Utah 417, 217 P.2d 373, 379
(1950)).
[¶16.] We apply this concept in the instant case
to determine whether diligent efforts were taken to locate Dyer.
[¶17.] After an unsuccessful attempt to
personally serve Dyer at the B & R Trailer Court, Colley resorted to Wyo.
Stat. § 1-6-301 for substitute service, relying on information obtained through
an investigator who, almost two years after the accident, contacted Dyer's
sister, Cherryl McVicker. McVicker informed him that a month or two after the
accident, Dyer left the state and that she had not seen or heard from him
since.
[¶18.] The record does not show that anything
else was done to ascertain Dyer's present whereabouts. The investigator and
Colley were apparently content that Dyer could not be found and that his last
known address was "
B & R
Trailer Court, Rock Springs,
Wyoming82901
." If no further investigation was
undertaken, then mailing notice to this address, with or without designating
space # 57, falls short of the diligence required by federal due process.
Moreover, this mailing, in lieu of further efforts to ascertain Dyer's
whereabouts, did little if anything to assure that Dyer would receive notice of
the pending action. The diligence requirement of due process means more than a
simple ascertainment of the last known address. Diligence must be applied in
locating the absent defendant. This necessarily involves an attempt to develop
and exhaust leads which a person normally leaves behind in the course of living.
Whether Dyer had friends and/or family (parents, brothers, sisters, ex-wives,
children); where these people were located; whether they had heard from Dyer or
knew of his recent whereabouts, are matters for Colley's investigator. The
record is not clear whether such efforts were undertaken. We will afford Colley
the opportunity to develop this portion of the record.
[¶19.] The record shows that notice was sent to
the insurance company which was the insurer of the vehicle owned by Dyer's
employer and which vehicle was involved in the accident. At best, such notice is
evidence of due diligence. Service of notice on the insurance company is not
notice to the absent defendant. The insurance company is not the real party in
interest, nor a designated agent for service of notice.
[¶20.] Notice to the insurance company, standing
alone, will not satisfy due diligence. The plaintiff has a duty to exercise due
diligence as federal due process requires. The plaintiff cannot expect the
insurance company to carry out that duty.4
[¶21.] This is not to say that we discourage a
plaintiff from forwarding notice to an insurance company. The insurance company
might be able to locate the absent defendant, and this would solve the notice
problem. We merely caution plaintiffs not to rely on this notice as an exclusive
means of due process.
[¶22.] Since the enactment of Wyo. Stat. §
1-6-301, this court has not been called to pass upon its interpretation. Hence,
a plaintiff seeking to perfect process under that statute might well be led to
believe that service mailed to the last known address suffices, without regard
to the requirement of due diligence. We note that the requirement of due
diligence was not explored in the district court. It is for this reason that the
matter will be remanded for a determination of whether Colley exercised due
diligence in locating the absent defendant.5 See Carlson, 740 P.2d 1269.
[¶23.] Reversed and remanded for further
proceedings consistent with this opinion.
URBIGKIT,
C.J.,
files a specially concurring opinion.
THOMAS, J., files a dissenting
opinion.
FOOTNOTES
1 Wyo. Stat. § 1-6-301
states in part:
(a) The use and operation
of a motor vehicle on any street or highway within Wyoming by any person upon
whom service of process cannot be made within Wyoming either personally or by
service upon a duly appointed resident agent is deemed an appointment of the
secretary of state of Wyoming as the operator's lawful attorney upon whom may be
served all legal processes in any proceeding against him * * *. Such operation
constitutes the operator's agreement that any process served in any action
against him * * * has the same legal force and validity as if served upon him *
* *. Service shall be made by serving a copy of the process upon the secretary
of state * * *. Within ten (10) days after the date of service, notice of such
service and a copy of the process shall be served upon the defendant * * *
either personally or by certified mail addressed to the last known address of
the defendant * * *. The plaintiff shall file with the clerk of the court in
which the action is brought an affidavit that he has complied with such
requirement.
2 Historically, counsel
would have been required to make a special appearance for the single purpose of
attacking insufficiency of process or lack of in personam jurisdiction. This is
no longer required. As W.R.C.P. 12 indicates, the distinction between general
and special appearances has been eliminated. Counsel has the option of raising
the defense by motion or by raising the defense by answer. See 5A Wright &
Miller, Federal Practice and Procedure: Civil 2d § 1362 at 451
(1990).
3 See n. 1,
supra.
4 Some jurisdictions allow
service on a party's insurer. However, such jurisdictions have statutory
provisions authorizing this procedure. See Annotation, Validity of Substituted
Service of Process Upon Liability Insurer of Unavailable Tortfeasor, 17
A.L.R.4th 918 (1982). Absent statutory authorization, which is the case in
Wyoming,
service of notice cannot be effected in this manner.
5 Upon a determination
that due diligence has been exercised, the next question is whether the "last
known address" requirement of Wyo. Stat. § 1-6-301 necessitated the designation
of space # 57. We adopt the view that a party may rely upon the address given to
the investigating authorities. See Swift v. Leasure, 285 A.2d 428 (Del.Super.
1971); Kraft v. Bahr, 256 Iowa 822, 128 N.W.2d 261 (1964); and Sorenson v. Stowers, 251 Wis. 398, 29 N.W.2d 512 (1947). In this case,
the accident report shows the address as "
B & R Trailer Court, Rock
Springs, Wyoming82901
" without designating space #
57.
URBIGKIT, Chief Justice,
specially concurring.
[¶24.] I concur with the majority that the
district court dismissal should be reversed. I do not agree, however, that
notice to the motor vehicle owner's liability insurance carrier, as the real
party in interest, is insignificant or ineffective under these circumstances,
and would also perceive that the diligence requirement for service was
realistically satisfied. This is the third appearance in this court of this
case, very different in subject, following the fatal injury of Jody Glenn
Dodgion who was killed after personnel of the City of Green River unexpectedly
put up a cable at the entrance to the city's landfill dump while decedent and
the vehicle driver were in the facility unloading trash. On exit, the restrung
cable caused the fatal injury. SeeState ex rel. Wyoming Workers' Compensation Div. v. Halstead, 795 P.2d 760 (Wyo. 1990) and Butler v. Halstead By and Through Colley, 770 P.2d 698
(Wyo. 1989).
Here we consider how to sue the negligent driver who disappeared shortly after
the fatal drive out of the city dump.
[¶25.] The procedural events deserve
consideration since this appeal addresses jurisdiction and proper service of
process. The broad issue presented is the efficacy of the Wyoming non-resident
motor statute where the defendant vehicle driver, Teddy Ray Dyer, disappeared
very shortly after the fatal accident. The liability insurance carrier defended
for several years in behalf of Dyer until, in the late stages of the proceeding,
a motion to dismiss was granted on the basis that proper service of process to
provide jurisdiction was never obtained.1
[¶26.] Sequentially, the events developed
following the September 24, 1985 fatal accident with the filing of a lawsuit on
September 23, 1987 against both the City of Green River, which ultimately settled out, and
the vehicle driver, Dyer. The vehicle was owned by the employer, Steven Boyd;
driven by Dyer, age twenty-seven; occupied by Jody Glenn Dodgion, age sixteen;
and insured by State Farm Mutual Automobile Insurance Company for liability
coverage. Non-resident motorist statute service, W.S. 1-6-301, through actual
service on the Secretary of State was initiated by summons served in Cheyenne, Wyoming and filed on October 27, 1987. State
Farm, following receipt of the non-resident motorist service notice on its
resident adjuster, employed counsel who filed an answer in behalf of Dyer on
November 12, 1987. That answer, in addition to the normal vehicle accident
admissions and denials, included as an affirmative allegation, "Process and
service of process are defective."
[¶27.] The affidavit in support of the
non-resident motorist statute service stated in part:
3. That to the best of
my knowledge, Teddy Ray Dyer, a Defendant in the above-captioned action, is a
non-resident of the State of Wyoming and that the specific place and
address and whereabouts of said Defendant are unknown to me.
4. That I have
attempted to serve Defendant Teddy Ray Dyer with a Summons and Complaint in the
above-captioned action by delivering same to the Sheriff's Office in and for the
County of Sweetwater, State of Wyoming, and that said Sheriff's Office has
returned said Summons and Complaint to my office after unsuccessfully attempting
to serve said Defendant at his last known address.
5. That pursuant to
Section 1-6-301, W.S. (1977, as amended), I have served a Summons and Complaint
in the above-captioned action upon the Secretary of State of Wyoming, who is
deemed to be the lawful attorney of Defendant Teddy Ray Dyer pursuant to Section
1-6-301, W.S. (1977, as amended).
6. That within ten
(10) days after the above-described service on the Secretary of State of
Wyoming, I mailed, by certified mail, notice of said service, in the attached
form, together with a copy of the Summons issued to the Secretary of State and a
copy of the Complaint in the above-captioned action upon the Defendant Teddy Ray
Dyer at his last known address which is as follows:
Teddy Ray
Dyer
B & R Trailer Court
Rock Springs, Wyoming82901
7. That within ten
(10) days after the above-described service on the Secretary of State of
Wyoming, I mailed, by certified mail, notice of said service, in the attached
form, together with a copy of the Summons issued to the Secretary of State and a
copy of the Complaint in the above-captioned action to: Mr. Frank Rolich, c/o
State Farm Insurance Company; P.O. Box 2131; Rock Springs, WY 82902. Mr. Rolich
is an insurance adjuster for State Farm Insurance Company, which I believed to
be the insurance carrier which will provide a defense and coverage to the
Defendant Teddy Ray Dyer for the accident which forms the basis of Plaintiff's
Complaint.
8. That within ten
(10) days after the above-described service on the Secretary of State of
Wyoming, I mailed, by certified mail, notice of said service, in the attached
form, together with a copy of the Summons issued to the Secretary of State and a
copy of the Complaint in the above-captioned action to: Mr. Steven Boyd; 1136
6th Avenue, Southeast; Albany, OR 97321. Mr. Boyd was the owner of Rock Springs
Roofing, the employer of Defendant Teddy Ray Dyer and Plaintiff's decedent, Jody
Glenn Dodgion, at the time of the accident in question. Mr. Boyd and/or his
business, Rock Springs Roofing, was the owner of the vehicle involved in the
accident in question.
[Signed and sworn to
by an attorney for Colley.]
[¶28.] The next action on service and
jurisdiction during the time the case proceeded through discovery and trial
preparation followed nearly two years later on August 8, 1989. Counsel employed
by State Farm to represent Dyer then filed a "Motion to Withdraw as Counsel for
Defendant Teddy Ray Dyer" which, after reciting the status of the parties and
noting a possible co-employee insurance policy exclusion, stated:
5. Approximately two
years after the accident this suit was filed. Defendant Teddy Ray Dyer had
departed the State by that time and since the inception of this suit no one has
been able to locate Dyer. Dyer was served under the long arm statute through the
Secretary of State.
6. Upon receipt of the
Complaint, State Farm was certain that it had no coverage for Dyer under the
Boyd/Rock Springs Roofing policy but to be certain no rights were prejudiced,
State Farm hired the undersigned to defend Dyer until a judicial determination
of coverage could be obtained. State Farm then caused United States District
Court for the District of Wyoming Civil Action C88-148-B to be filed for
declaratory relief.
7. A final decision in said civil
action has now been obtained and a copy of the Declaratory Judgment is attached
hereto and incorporated herein by this reference. According to said Judgment
Defendant Dyer has no coverage under the Boyd/Rock Springs Roofing policy and
State Farm has no obligation to defend Dyer in this action.
8. Further, none of
the other parties to this case have a claim against State Farm.
9. Defendant Dyer
cannot be given notice of this Motion because he cannot be located (see
Affidavit of Frank Rolich also attached and incorporated herein by this
reference) but Defendant Dyer has never been aware the undersigned has been
defending him to the best knowledge and belief of the undersigned.
10. Pursuant to the
attached Declaratory Judgment State Farm has requested the undersigned to
terminate representation of defendant Dyer.
[¶29.] The affidavit of insurance adjuster Frank
Rolich2 stated relative to
Dyer:
1. I have been
employed by plaintiffState Farm Mutual Automobile Insurance Company as a
field claim representative in its Rock
Springs, Wyoming, office
at all times pertinent to the above-entitled action. I make this affidavit in
support of the plaintiff's motion for summary judgment pursuant to Fed.R.Civ.P.
56.
2. Following
notification to plaintiff of the September 24, 1985 accident involving a 1978
Chevrolet pickup truck owned by plaintiff's insured, Steven Boyd, I was assigned
to investigate the accident on plaintiff's behalf.
3. During the course
and scope of that investigation, I met with Teddy Ray Dyer (Dyer) on October 15,
1985 at which time he refused to discuss the factual circumstances surrounding
said accident, although he did discuss his employment status, and that of Jody
Dodgion, by Steven Boyd. On that date, at my request, he signed a nonwaiver
agreement in my presence, a true and correct copy of which is attached hereto as
Exhibit A.
4. On or about Nov. 6,
1985 I again spoke with Mr. Dyer and requested that he furnish a factual
statement of the circumstances surrounding the September 24, 1985 accident,
which he refused to do.
5. Thereafter, and
sometime prior to January 18, 1986, I was informed that Mr. Dyer had left his
last-known address in Rock
Springs, Wyoming. I have
not seen or spoken with Mr. Dyer since 11-6-86 or about.
6. In November 1987 in
the course of my employment with plaintiff, I was directed by plaintiff to
attempt to locate Mr. Dyer. To that end:
a. I located Mr.
Dyer's sister, Mrs. Scott McVickers [sic], and personally interviewed her at her
Rock Springs, Wyoming, residence on Jan. 12, 1988. Mrs.
McVickers [sic] informed me that she did not know Mr. Dyer's whereabouts at that
time; that she had last heard from him about one year previously when Dyer was
living in Payette, Idaho; that she thought Dyer had voluntarily left the
Rock Springs
area, among other reasons, in order to avoid possible criminal
prosecution.
b. Thereafter I made
referrals to Idaho and Oregon in an effort to
locate Mr. Dyer. As a result I received information from the Oregon Department
of Motor Vehicles records, that, as of September 25, 1986, Dyer's Oregon driver's license showed his address as General
Delivery, Vernonia,
Oregon. Mr. Dyer was not, however,
successfully located in either Oregon or
Idaho.
[¶30.] An order was entered by the district
court permitting withdrawal by the attorney representing Dyer on August 8, 1989
and then later, he was directed by his client, the insurance company, to
re-enter an appearance in behalf of Dyer which was accomplished by general
appearance filed September 7, 1989 without any reservation.
[¶31.] A joint pretrial memorandum of the
parties was filed August 14, 1989 which addressed the jurisdiction and service
of process issues. The joint pretrial memorandum was not signed by counsel for
Dyer. The memorandum addressed the coverage question:
By the Defendant Teddy
Ray Dyer:
a. Whether plaintiff's
process and service of process are defective as to Defendant Dyer.
b. Whether counsel for
Defendant Teddy Ray Dyer should be allowed to withdraw from his representation
of said defendant by reason of the Declaratory Judgment entered in United States
District Court for the District of Wyoming, Civil No. C88-148-B, State Farm v.
Teddy Ray Dyer, et al.
[¶32.] Counsel for Dyer followed the filing of
the pretrial memorandum with a comprehensive Motion in Limine on August 18,
1989.
[¶33.] Appellants then made an apparent mistake
in filing a motion to strike the answer of Dyer who failed to appear for a
deposition (since no one knew where he was and obviously he did not know the
deposition was scheduled). In response to the motion, counsel representing Dyer
stated in part:
1. This action was
commenced by plaintiffs attempting to make service on defendant Dyer through the
Secretary of State. However, plaintiffs have been unable to complete such
service as they were unable to provide the Secretary of State with a current
address for defendant Dyer. As such, defendant Dyer has never received notice of
this law suit. Plaintiffs served Dyer's former employer and Frank Rolich,
adjuster for State Farm instead of defendant Dyer.
2. The undersigned
filed an Answer on behalf of said defendant because the allegations in the
Complaint raised an issue as to the duty to defendant said defend [sic] under
the provisions of the State Farm insurance policy maintained on the vehicle
operated by said defendant at the time of the accident complained of in the
Complaint filed by plaintiffs.
3. In the Answer filed
on behalf of said defendant, the failure to obtain personal service was noted or
was the issue of whether this Court can exercise in personam jurisdiction over
the defendant Dyer without affecting personal service.
4. The undersigned has
never learned the location of defendant Dyer, and, thus has been unable to
advise him of any deposition settings including his own, a fact well known to
plaintiffs' [sic] before they noticed said defendant for deposition.
5. It is improper
under Rule 37 WRCP to strike pleadings without a showing that said defendant
would provide new and relevant evidence not already know[n] to plaintiff from
other sources Waldrop v. Weaver, 702 P.2d 1291 (Wyo. 1985).
[¶34.] The district court responded to the
deposition taking conflict and pleading filings by a letter of January 3, 1990,
which stated in part:
It appears that prior
to ruling on Plaintiffs' Motion, the Court must rule on the question of proper
service on Defendant Dyer. This defense was raised in his answer, in the Joint
Pretrial Memorandum, as well as at the attempted deposition. It would seem that
this issue should be resolved sooner than 30 days prior to trial.
The Court will reserve
ruling on Plaintiffs' Motion until the service issue is resolved. Furthermore, I
would want confirmation from Mr. Hooper whether Mr. Dyer is, or is not,
testifying as a witness. It appears from the pretrial memo that he is testifying
and a summary of his testimony is given, but from the Response to the Motion, it
appears his whereabouts have not been known to Mr. Hooper.
[¶35.] A motion to dismiss was filed February 6,
1990 stating:
COMES NOW the
defendant Teddy Ray Dyer, through counsel, and moves the Court to dismiss the
Complaint filed herein for the reason that process, service of process and proof
of process are all defective under Rule 4, WRCP and W.S. § 1-6-301 (1977, as
amended) and the Court is, therefore, without jurisdiction over said
defendant.
[¶36.] This pleading came nearly two and
one-half years after the litigation had been started following two entries of
appearance by counsel employed by State Farm to defend in behalf of Dyer. Each
party filed briefs with supporting documentation addressing the jurisdiction and
service of process issues and the district court then ruled:
The above matter is
before the Court on Defendant Dyer's Motion to Dismiss on the issue of defective
process, service of process and proof of process.
The Court agrees with
Defendant's argument and authorities cited in his brief and reply letter dated
March 7, 1990. In reading the affidavits attached to Plaintiff's brief, it is
quite apparent that Mr. Dyer was neither personally served nor was he attempted
to be served by certified mail at his last known address.
Mr. Tennyson's
affidavit places Mr. Dyer's last known address as "
B & R Trailer Court, Rock Springs, Wyoming82901
." [Plaintiff's
Exhibit A.] However, Cherryl McVicker, sister of Teddy Dyer, stated that Mr.
Dyer's last known address was "B
& R Trailer Court, # 57, Rock Springs, Wyoming82901." [Plaintiff's Exhibit D.] Even
disregarding the fact that B & R Trailer Court is not in Rock Springs, there
is a big difference in naming a trailer court as an address and naming a
specific trailer space in that court. The "# 57" does distinguish that space
from the other 140 plus spaces in B & R.
Although Deputy Pappas
does not state that he went to # 57, the Court accepts the conclusion that he
did go to the correct space. His affidavit is lacking in facts, such as how the
Sheriff's Office knew the correct number of Mr. Dyer's sister's trailer number.
[Plaintiff's Exhibit G.] It would appear that if the Deputy knew the correct
number, the Plaintiff also could have discovered the "last known
address."
The affidavits are
full of conclusions, such as "he (Teddy Dyer) left the state of Wyoming." [Plaintiff's
Exhibit D.] But Cherryl McVicker goes on to say Dyer did not inform herself or
anyone in her family where he was going.
Since we know Mr. Dyer
was not personally served, that
B
& R Trailer Court, Rock Springs,
Wyoming82901
, was not his last known address,
and that it is questionable whether, or not, he was a non-resident, the Court
finds that service is defective. Mr. Hooper shall prepare the Order and submit
it to Mr. Hesse for approval as to form.
[¶37.] The facts in this record are essentially
uncontroverted, but seem confused in recitation and decision.3
[¶38.] What did happen to Dyer is best stated in
the uncontroverted affidavit of his sister, Cherryl McVicker:
1. That I am a sister
of defendant Teddy Ray Dyer and I presently reside at
1638 Elk St., # 55, Rock Springs, Wyoming82901
.
2. That prior to
9/24/85 I was always aware of the whereabouts of my brother Teddy Ray Dyer and
knew him to be residing at the Imperial Apartments # F2 in Rock Springs, Wyoming up until 9/24/85.
3. That on the night
of 9/24/85, my brother Teddy Ray Dyer moved in with me at the B & R Trailer
Court # 57 in Rock Springs, Wyoming and stayed there for approximately a month
and a half to two months at which time he left the state of Wyoming without
informing myself or anyone in my family where he was going and to the best of my
knowledge has not returned to the state of Wyoming since that time.
4. That at the time my
brother left the state of Wyoming, his last known address was B & R Trailer
Court, # 57, Rock Springs, Wyoming 82901.
The accident report
reveals an address of "
B & R
Trailer Ct., Rock Springs,
WY82901
" with a listed telephone number.
The record also reveals within the affidavit of Rolich that "sometime prior to
January 18, 1986," he was informed that Dyer had left his last known address in
Rock Springs, Wyoming to never be seen or heard from again.
He reported that Dyer left, among other reasons, in order to avoid possible
criminal prosecution (apparently involving the facts of the fatal accident). The
record reveals a 1986 driver's license address found in Vernonia, Oregon.
[¶39.] The factual progression is clear and
uncontradicted. On the night of the accident, Dyer moved in with his sister at
the B & R Trailer Court in Rock Springs, Wyoming, stayed with her for a
couple of months, was contacted by the insurance adjuster twice for statements
but refused to cooperate, moved out of his sister's trailer, left the state and
was once in Vernonia, Oregon, but has not been physically located by anyone
since he left Wyoming sometime after November 6, 1985 and prior to January 18,
1986.
[¶40.] What we do not know from the record is
when appellants obtained a copy of the State Farm file demonstrating
inability of the insurance company to locate Dyer and, as noted, we do not have
the file in the record. We certainly cannot judicially notice or recognize what
may be attached to the appellate briefs which was never incorporated in the case
record. Cockreham v. Wyoming Production Credit
Ass'n, 743 P.2d 869 (Wyo. 1987); Nicholls v.
Nicholls, 721 P.2d 1103 (Wyo. 1986).
[¶41.] I am left with doubt as to what any
competent and diligent attorney could or should have additionally done to locate
Dyer.4 There is no question in this record
that Dyer left Wyoming, left his sister without notice or
later contact and disappeared from his last known address which was his sister's
address at the trailer court. Due diligence in this case would conform to the
standard of effort approved in Sommers v. Gaston, 295 A.2d 578 (Del.Super. 1972)
where plaintiff checked all available sources but with no success. See also Duke
v. Paul, 20 Ill. App.3d 500, 314 N.E.2d 517 (1974) and
Pelay v. Ploog, 281 Or. 59, 573 P.2d 1229, 1231 n. 2 (1978).
[¶42.] There is a distinction between the
technical act of service in this case, personal service on the Secretary of
State, and the subsequent notice to be given to the defendant of such service.
"In the first instance, the service is clothed with certain formalities which
are not required in the second instance." Allen v. Campbell, 141 So. 827, 829
(La. App.
1932). The first is jurisdictional and the second is to provide an opportunity
to defend. Powell v. Knight, 74 F. Supp. 191 (E.D.Va. 1947).
[¶43.] The "departed for parts unknown" rule is
stated in Hartley v. Vitiello, 113 Conn. 74, 154 A. 255, 258 (1931):
The requirement that the
copy be mailed to the defendant at his "last-known address" does not mean the
last address known to the plaintiff, but does mean the last address of the
defendant so far as it is known, that is, by those who under the ordinary
circumstances of life would know it. Unless the defendant has departed for parts
unknown, it means his actual address; if he has disappeared, it means his last
address so far as it is reasonably possible to ascertain it.
The duty of the defendant
was considered in Swift v. Leasure, 285 A.2d 428 (Del.Super. 1971) when
jurisdiction was obtained within proof of actual notice of service on the
Secretary of State. The notice requirement was then reasonableness and a duty
for the defendant was perceived to "keep his address current." Id. at 430. The court
then said:
The defendant was
involved in an accident which obviously was of a relatively serious nature and
he certainly must have been aware of possible future litigation. Having once
submitted an address to the public authorities wherein legal process could be
served upon him, he was under a continuing duty to keep this address current for
a reasonable period of time. He apparently did not do this as it would appear
that well within the statute of limitations period he moved without leaving with
the Post Office authorities any forwarding address. The burden of furnishing the
Post Office with a forwarding address was negligible compared with the
difficulties imposed upon the plaintiffs to establish defendant's whereabouts by
means of an independent and, perhaps, expensive search. Under these
circumstances the Court will not impose upon plaintiffs the obligation to ferret
out the actual location of defendant. Certification that delivery was attempted
at the address furnished by the defendant at the time of the accident will
satisfy the jurisdictional prerequisites. In this view support may be found in a
number of cases in other jurisdictions. Kraft v. Bahr, 256 Iowa 822, 128 N.W.2d 261 (1964); Skinner v. Mueller, 1
Wis.2d 328, 84 N.W.2d 71 (1957); Sorenson v. Stowers, supra [251 Wis. 398, 29 N.W.2d 512
(1947)].
Id.
[¶44.] I particularly disagree with the majority
about the significance or lack thereof of notice to the insurance carrier. Who
better than the insurer could be called to locate the missing driver? State
Farm, in this case, had the resources and the incentive. An attorney
representing the decedent's family cannot fairly compete in effort.
Additionally, the economic interest in this case is that of the insurance
company and not the long gone, footloose driver of the involved
vehicle.
[¶45.] We are provided a case of similar
authority and example in Duke, 314 N.E.2d at 521-22, except that the insurance
carrier for the driver, after receiving notice, let a default be entered while
it had an address for its insured:
The record in the case at
bar shows that the defendant's insurance carrier, Preferred, knew of the
pendency of the suit and as of May 5, 1968, knew that the defendant was leaving
the State of Illinois. Preferred also knew in late August
of 1969 the new address of defendant in Hawaii. There was also correspondence between
the plaintiff's attorney, Preferred, and the attorneys for the defendant as to
whether proper service had been made upon the defendant. In addition,
plaintiff's attorney contacted Mr. Beece, the claims manager of Preferred, in
regards to locating the defendant. Preferred had a contractual obligation with
the defendant to defend this suit and indeed Preferred retained attorneys on
defendant's behalf. However, having all the knowledge previously cited,
Preferred chose to do nothing until a default judgment was entered. * * * A
defendant's insurance carrier cannot embark upon its contractual obligation to
defend a suit and then do nothing until a default judgment is entered and then
seek to utilize [a default vacation section of the Illinois non-resident
motor statute].
[¶46.] A case similar in service effort
involving an insurance company notice is Saucedo v. Engelbrecht, 149 Ariz. 18,
716 P.2d 79 (1986), where, however, the carrier could not locate the driver and
the record revealed efforts made by both parties. Trial court dismissal was
reversed when the appellate court first stated, "[a] finding of due diligence is
a jurisdictional prerequisite," id., 716 P.2d at 80, and then found plaintiff
met the test in conjunction with the carrier's unsuccessful and concurrent
efforts to find the missing driver. See also Gibson v. Salvatore, 102 A.D.2d 861, 476 N.Y.S.2d 930, 932 (1984).
[¶47.] The court in Proulx v. Goulet, 315 F. Supp. 622, 624-25 (D.Vt. 1970) first found jurisdiction by substituted service
on the commissioner of motor vehicles and then recognized:
Moreover, someone -
presumably the defendant's insurer - has received sufficient notice to appear
and file the motion to dismiss, a motion wherein the defendant, Rene Goulet,
says that "the present whereabouts of Rene Goulet is unknown." By having
notified Goulet's insurer, the plaintiffs here have given it the opportunity to
defend at least to the extent of its policy coverage. * * * To that extent, at
least, the "fair play" called for by McDonald v. Mabee, 243 U.S. 90, 91, 37 S. Ct. 343, 343, 61 L. Ed. 608 [(1917)], has been had. To that extent also the
constitutional demands of notice "reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action * *
*," Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950), have been met, perhaps to an even greater extent
than in cases where there has been mistaken delivery of process to the wrong
party.
[¶48.] Although concurring in the reversal of
the order of dismissal, I perceive no omission in proper service to proscribe
existent jurisdiction. The presence of State Farm, with an opportunity to defend
as it has in two courts, is self-evident. Consideration of a judgment against
the driver in excess of liability insurance coverage is, on this record, totally
inconsequential for anyone. The real party in interest with more than
appropriate notice is the insurance carrier who has been available and has fully
participated. I would not find the disappearance of an automobile driver to
defeat the purpose of required liability insurance under Wyoming law or the
validating processes for jurisdiction afforded by W.S. 1-6-301. See 13 P. Kelly,
Blashfield Automobile Law and Practice § 452.4 (3rd ed. rev. 1990).
[¶49.] In agreement with Justice Thomas in his
dissent, I would remand the case for trial to be held.
FOOTNOTES
1 The district court
determined that a motion to dismiss should be granted on the basis of defective
process, service of process and proof of process and stated in opinion
letter:
Since we know Mr. Dyer
was not personally served, that
B
& R Trailer Court, Rock Springs,
Wyoming82901
, was not his last known address,
and that it is questionable whether, or not, he was a non-resident, the Court
finds that service is defective.
2 As a matter of academic
interest, the adjuster, Frank Rolich, succeeded this writer as staff adjuster
for State Farm in the Rock
Springs office more than thirty-five years
ago.
3 Attached to appellant's
brief filed in this court is extensive material from State Farm's records
reflecting efforts to locate the driver. Those materials are not
contained in the present record by affidavit, attachment, or otherwise and
likely were not considered by the district court in decision. They do not
create any real factual conflicts. The search reports and insurance company
details are more comprehensive than other documentation, but essentially define
the same efforts described by the adjuster in the unsuccessful effort to find
Dyer.
4 I am also left with the
question about waiver at some point in the technical aspects of service of
process by entry of appearance and pretrial pleading activities as a participant
in the litigation. Cf. Midway Oil Corp. v. Guess, 714 P.2d 339 (Wyo. 1986) and Vanover v. Vanover, 77 Wyo. 55, 307 P.2d 117
(1957). Waiver of improper service or by entry of an appearance and general
participation is a subject which was not addressed in briefing in district court
or for this appeal.
THOMAS, Justice,
dissenting.
[¶50.] I must dissent from the disposition of
this case according to the majority opinion. In my judgment, the case should
either be reversed or affirmed. A remand for the purpose of effecting a
determination as to whether Colley exercised due diligence in locating Dyer
strikes me as an exercise in futility that can only lead to frustration for all
concerned. I would hold that Colley did pursue and show the diligence "which is
reasonable under the circumstances." Carlson v. Bos, 740 P.2d 1269, 1277, n. 13
(Utah 1987).
Consequently, I would reverse the order granting the motion to dismiss and
permit the case to go forward to trial.
[¶51.] It is my understanding that the majority
of the court would not find that the failure to allude to "# 57" in the
affidavit filed in support of substitute service was a fatal defect in the
proceedings. The order of the trial court was not affirmed on that narrow
ground. Instead, the case is reversed and remanded for a further showing of due
diligence.
[¶52.] I rely upon the factual discussion by
Chief Justice Urbigkit, in his specially concurring opinion, in my analysis of
the effort that may be attempted on remand. In light of that discussion, I
cannot conceive of anything that Colley might now do or could have done before
service upon the Secretary of State to locate Teddy Ray Dyer. It is obvious that
Dyer has chosen to avoid any attempt to communicate with Colley either
personally or officially. Like Chief Justice Urbigkit, "I am left with doubt
as to what any competent and diligent attorney could or should have additionally
done to locate Dyer." (Conc. op. at 574.) In the language of Mullane v.
Central Hanover Bank & Trust Company, 339 U.S. 306, 317, 70 S. Ct. 652, 658,
94 L. Ed. 865 (1950), it is clear that as a matter of fact Dyer is one "whose . .
. whereabouts could not with due diligence be ascertained. . . ." If that
perception of fact is sound, then it should follow that any effort of Colley or
her counsel, diligent or otherwise, was doomed to failure.
[¶53.] Without denigrating the authority cited
in the majority opinion in any way, I would permit the party attempting
substituted service to either demonstrate due diligence in endeavoring to locate
the absent defendant or, in the alternative, to rely upon a record that
demonstrates, like this one does, that the absent defendant could not be found
by anyone, including his own insurance carrier. This alternative would avoid an
open-ended standard with respect to what efforts should be undertaken to
manifest due diligence. (Is it enough to demonstrate that there was no
forwarding address, or must the plaintiff engage a private investigator in every
possible place and produce a negative report?) Instead, it would permit the
plaintiff to prove the facts with respect to whether the defendant could be
located. Those facts are present in this record; they demonstrate that Dyer
could not be found; and they fully satisfy the question as to whether it was
possible to give such notice to Dyer "as to make it reasonably probable that he
will receive actual notice." Wuchter v. Pizzutti, 276 U.S. 13, 19, 48 S. Ct. 259, 260, 72 L. Ed. 446 (1928). If it is not possible to give that notice,
then there is no reason to require a demonstration of due diligence to satisfy
the test of due process under the federal constitution. The law should not
require any futile endeavors.
[¶54.] I would reverse the order granting the
motion to dismiss, and remand the case for trial.
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