Parris v. GARNER COM'L DISPOSAL, INC.

253 S.E.2d 29 (1979)

40 N.C. App. 282

Ruby Buie PARRIS v. GARNER COMMERCIAL DISPOSAL, INC., William D. King, and Aetna Life and Casualty Company, Inc.

No. 7819SC416.

Court of Appeals of North Carolina.

March 20, 1979.

*32 Burke, Donaldson & Holshouser, by Arthur J. Donaldson, Salisbury, for plaintiff appellant.

Jones, Hewson & Woolard, by Harry C. Hewson, Charlotte, for defendant appellee Aetna Life and Cas. Co., Inc.

ERWIN, Judge.

Plaintiff contends that the trial court committed error in dismissing his complaint against defendant Aetna Life and Casualty Company, Inc. We agree with plaintiff.

Assuming arguendo that plaintiff's original service of summons on defendant was pursuant to G.S. 58-153 or G.S. 58-153.1, such service would be defective. To serve legal process under G.S. 58-153, an insurance company must be licensed or admitted and authorized to do business in this State. See G.S. 58-153.

G.S. 58-153.1(a) allows service of process on insurance companies subject to our courts' jurisdiction in suits by or on behalf of insured or beneficiaries under insurance contracts. See G.S. 58-153.1(a). Since neither circumstance prevails here, service of summons upon John Ingram, Commissioner of Insurance, as defendant's statutory process agent pursuant to G.S. 58-153 or G.S. 58-153.1(a), is ineffective. However, plaintiff's service of process by serving the alias and pluries summons on defendant was an effective service of summons.

G.S. 1A-1, Rule 4(d)(2) allows for the issuance of alias and pluries summons in the same manner as the original summons. Issuance of the original summons is to be in accordance with G.S. 1A-1, Rule 4(b).

G.S. 1A-1, Rule 4(b) provides:

"(b) Summonscontents.The summons shall run in the name of the State and be dated and signed by the clerk, assistant clerk, or deputy clerk of the court in the county in which the action is commenced. It shall contain the title of the cause and the name of the court and county wherein the action has been commenced. It shall be directed to the defendant or defendants and shall notify each defendant to appear and answer within 30 days after its service upon him and further that if he fails so to appear, the plaintiff will apply to the court for the relief demanded in the complaint. It shall set forth the name and address of plaintiff's attorney, or if there be none, the name and address of plaintiff." The summons in question provides: "Ruby Buie Parris Against

Garner Commercial Disposal, Inc., William D. King, and Aetna Life and Casualty Company, Inc."

*33 The summons was directed to:

"William Oliver Bailey, President Aetna Life and Casualty Company 151 Farrington Avenue Hartford, Connecticut 06156"

In Wiles v. Construction Co., 295 N.C. 81, 84, 243 S.E.2d 756, 758 (1978), our Supreme Court held a similarly directed service of summons a sufficient service of process:

"In the instant case, Welparnel Construction Company, Inc. was properly named as the defendant in the complaint, as well as in the caption of the summons. The sole ground upon which the process here is asserted to be defective is the direction of the summons to the corporation's registered agent rather than to the corporation. While our Rule 4(b) does require that the summons be directed to the defendant, we feel constrained to agree with the statement of Judge John J. Parker in a similar context that `A suit at law is not a children's game, but a serious effort on the part of adult human beings to administer justice; and the purpose of process is to bring parties into court. If it names them in such terms that every intelligent person understands who is meant, . . . it has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else.' United States v. A. H. Fischer Lumber Co., 162 F.2d 872, 873 (4th Cir., 1947)."

The Court further noted:

"[W]e feel that the better rule in cases such as this is that when the name of the defendant is sufficiently stated in the caption of the summons and in the complaint, such that it is clear that the corporation, rather than the officer or agent receiving service, is the entity being sued, the summons, when properly served upon an officer, director or agent specified in N.C.R.Civ.P. 4(j)(6), is adequate to bring the corporate defendant within the trial court's jurisdiction." (Citations omitted.)

Id. at 85, 243 S.E.2d at 758 (1978).

The record shows that defendant's statutory agent for service of process in Connecticut was served with a copy of the summons. We hold that service of process was sufficient in this case to apprise defendant that it was the party being sued. Thus, if the court had jurisdiction over the defendant, the service of process was sufficient under G.S. 1-A, Rule 4(j)(6).

The absence of proof of return on defendant's copy did not affect the validity of the service of process. The sheriff's return showing service was prima facie proof of service, Harrington v. Rice, 245 N.C. 640, 97 S.E.2d 239 (1957), and Lumber Co. v. Sewing Machine Corp., 233 N.C. 407, 64 S.E.2d 415 (1951), and placed the burden on the party claiming that service had not in fact been made to repel the prima facie case. Tyndall v. Homes, 264 N.C. 467, 142 S.E.2d 21 (1965); 10 Strong's Index 3d, Process, § 4, p. 395. It is the service of process and not the return of the officer which confers jurisdiction on the court. 10 Strong's Index 3d, Process, § 4, pp. 395-96.

The resolution of the question of in personam jurisdiction involves a two-fold determination: (1) do the statutes of North Carolina permit the courts of the jurisdiction to entertain this action against defendant, and (2) does the exercise of this power by the North Carolina courts violate due process of law. Dillon v. Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977).

The grounds on which a court may assert personal jurisdiction over a person are set forth in G.S. 1-75.4.

G.S. 1-75.4(1)(d) provides:

"§ 1-75.4. Personal jurisdiction, grounds for generally.A court of this State having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to Rule 4(j) of the Rules of Civil Procedure under any of the following circumstances: (1) Local Presence or Status.In any action, whether the claim arises within or without this State, in which a claim is asserted against a party who when service of process is made upon such party: . . . . . *34 d. Is engaged in substantial activity within this State, whether such activity is wholly interstate, intrastate, or otherwise."

In the enactment of G.S. 1-75.4(1)(d), our Legislature intended to make available to our courts the full jurisdictional powers permissible under federal due process. Dillon v. Funding Corp., supra. Thus, the essential question is: Does the exercise of in personam jurisdiction in the present case comport with due process? We answer, "Yes."

Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, that he have certain minimal contacts with it such that the maintenance of the suit does not offend the "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057 (1945); Dillon v. Funding Corp., supra; Chadbourn, Inc. v. Katz, 285 N.C. 700, 208 S.E.2d 676 (1974).

Application of the minimum contacts rule varies with the quality and nature of defendant's activities, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958); Chadbourn, Inc. v. Katz, supra; Swenson v. Thibaut, 39 N.C.App. 77, 250 S.E.2d 279 (1978).

The existence of minimal contacts is a question of fact. Chadbourn, Inc. v. Katz, supra. Here, the evidence shows: that defendant was listed in telephone directories in various North Carolina cities; that the directories indicated a toll-free number to call in Hartford, Connecticut in the event of an accident; that the directories indicated general agents to contact within various North Carolina cities; that defendant or its agent had sent a letter to plaintiff's counsel regarding renewal of a term insurance policy; and that an insurance policy was mailed to Daphne Weems in an envelope bearing defendant's trademark and a note was attached informing her to call defendant for immediate help in the event of an accident. These contacts are not "de minimis." We hold that sufficient "minimal contacts" exists to justify the court's assertion of jurisdiction in the present case. See Bard v. Steele, 28 A.D.2d 193, 283 N.Y.S.2d 930 (1967).

Defendant contends that assertion of jurisdiction over it is precluded, because it placed its advertisements through an independent advertising agency.

In Putnam v. Publications, 245 N.C. 432, 96 S.E.2d 445 (1957), our Supreme Court held that our courts could not assert jurisdiction over the publisher, because no "minimal contacts" existed. Since we hold that sufficient contacts existed so as to assert jurisdiction over defendant, we find Putnam v. Publications, supra, distinguishable. However, we note that the reason courts refuse to uphold the exercise of jurisdiction over nonresident publishers is because of fear of undue burdens imposed upon multi-state publishers of defending suits in distant states when weighed against a need to provide plaintiffs with a convenient forum. Comment, Long Arm Jurisdiction Over Publishers: To Chill a Mocking Word, 67 Colum.L.Rev. 342 (1967). This same rationale is not applicable where foreign corporations launch massive campaigns seeking to influence jury verdicts in our State.

Courts generally exclude evidence of insurance, because it has no probative value on proving the two issues prevalent in every negligence casenegligence and damages. Lyerly, Evidence: Revealing the Existence of Defendants' Liability Insurance to the Jury, 6 Cum.L.Rev. 123 (1975). This is the rule in North Carolina. Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726 (1927); 1 Stansbury's N.C. Evidence (Brandis Rev.), § 88. Prevention of introduction of evidence is for the benefit of defendants and their insurers. See 1 Stansbury's N.C. Evidence (Brandis Rev.), § 88. Thus, all insurers receive the benefit and protection of our laws, directly or indirectly.

*35 Defendant would have us allow it the benefit and protection of our laws; but deny us the right to assert jurisdiction to prevent contravention of our laws. We may properly consider our legitimate interest in protecting our plaintiff residents' rights to have a jury reach a verdict free of outside influence. See Byham v. House Corp., 265 N.C. 50, 143 S.E.2d 225 (1965); Swenson v. Thibaut, 39 N.C.App. 77, 250 S.E.2d 279 (1978). Traditional notions of fair play and substantial justice are not violated.

The order below is

Reversed and remanded for entry of order consistent with this opinion.

ROBERT M. MARTIN and MITCHELL, JJ., concur.