Alford v. McGaw

• Decision Date: 01 March 1978
• Citation: 402 N.Y.S.2d 499,61 A.D.2d 504
• Court: New York Supreme Court — Appellate Division
• Parties: Tommie ALFORD, Individually and as parent and natural guardian of Timothy Alford, an infant, Respondent, v. David McGAW, Appellant.

Page 499

402 N.Y.S.2d 499

61 A.D.2d 504

Tommie ALFORD, Individually and as parent and natural guardian of Timothy Alford, an infant, Respondent, v. David McGAW, Appellant.

Supreme Court, Appellate Division, Fourth Department.

March 1, 1978.

Smith, Murphy & Schoepperle, Buffalo, for appellant; Frank Godson, Buffalo, of counsel.

Goldstein & Freed, Buffalo, for respondent; Robert B. Sommerstein, Buffalo, of counsel.

Before CARDAMONE, J. P., and SIMMONS, DILLON, HANCOCK and DENMAN, JJ.

DILLON, Justice:

Twelve years after its controversial birth by a divided Court of Appeals, we are asked to decide whether the jurisdictional doctrine of Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 remains viable. In Seider, the plaintiffs, residents of New York, were injured in an automobile accident in Vermont, allegedly through the negligence of the defendant, who was a resident of Quebec, Canada. The insurance carrier, which did business in New York, had issued an automobile liability insurance policy to the defendant in Quebec. It was held that the insurer's obligation to defend and indemnify the defendant was a "debt" within the meaning of CPLR 5201 which was properly subject to attachment under CPLR 6202 to confer jurisdiction in rem in this state over the defendant.

It is now said that jurisdiction over a nonresident defendant may no longer be so simply achieved in light of the Supreme Court's pronouncement in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (decided June 24, 1977) ¹ that due process requires that all assertions of state court jurisdiction be evaluated according to the "minimum contacts" standard set forth in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95. The contacts among the defendant, the state and the litigation must be such that "the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice' " (id., p. 316, 66 S.Ct. p. 158).

We are here concerned with a negligence action arising from an accident which occurred in Ontario, Canada. The plaintiffs, father and infant son, are residents of New York. It is alleged that the infant was injured when struck by an automobile owned and operated by the defendant, a resident of Ontario. An order of attachment directed the sheriff to levy upon the contractual obligation of the Hartford Fire Insurance Company to defend and indemnify the defendant under a policy of automobile liability insurance issued in Ontario by Hartford to the defendant. Hartford is an insurer which does business in New York. The order of attachment was served upon Hartford in this state and the defendant was personally served with the order and the summons and complaint in Ontario. Thus, under the Seider doctrine, "jurisdiction in rem", limited to the face amount of the liability insurance policy, was acquired over the defendant "by the attachment in view of the fact that the policy obligation (is) a debt to the defendant." (Simpson v. Loehmann, 21 N.Y.2d 305, 310, 287 N.Y.S.2d 633, 636, 234 N.E.2d 669, 671.)

Special Term denied the defendant's motion to vacate the order of attachment and to dismiss the action. While the plaintiffs argue that their method of achieving jurisdiction is not proscribed by the decision in Shaffer, the defendant asserts, without contradiction, that aside from his contractual relationship with Hartford, he has had no contact with New York such as would subject him to the jurisdiction of our state courts.

Seider's jurisdictional doctrine came under attack at its inception (see Seider v. Roth, 17 N.Y.2d 111, 115-118, 269 N.Y.S.2d 99, 102-105, 216 N.E.2d 312, 315-317 (Burke, J., dissenting)) and the criticism has intensified over the years (see, e. g., Donawitz v. Danek, 42 N.Y.2d 138, 143-151, 397 N.Y.S.2d 592, 595-601, 366 N.E.2d 253, 256-261 (Jasen, J., concurring); Simpson v. Loehmann, 21 N.Y.2d 305, 316, 287 N.Y.2d 633, 641, 234 N.E.2d 669, 674 (Breitel, J., concurring); Siegel, Supplementary Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 5201 (Supplementary Pamphlet 1964 to 1976); McLaughlin, Seider v. Roth Dead or Alive?, N.Y.L.J., Dec. 9, 1977, p. 1, col. 1). The attack is primarily focused upon the lack of certainty of the insurer's "debt" (see CPLR 5201) to the defendant and the circular or bootstrap reasoning of the Seider decision which allows a "promise to defend the insured * * * to furnish the jurisdiction for a civil suit which must be validly commenced before the obligation to defend can possibly accrue" (Seider v. Roth, 17 N.Y.2d 111, 115, 269 N.Y.S.2d 99, 103, 216 N.E.2d 312, 315 (Burke, J., dissenting)). While these arguments often have been sympathetically received by the Court of Appeals and have sometimes prompted strong expressions of agreement, they have consistently been rejected as a basis for the denial of quasi in rem jurisdiction (see Donawitz v. Danek, supra; Neuman v. Dunham, 39 N.Y.2d 999, 387 N.Y.S.2d 240, 355 N.E.2d 294; Simpson v. Loehmann, supra ).

There is ample authority which asserts that the Seider doctrine is premised upon the quasi in rem jurisdictional rationale of Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023, a seminal case wherein jurisdiction was sustained based solely upon the fortuitous presence of the debtor in the forum state. That rationale was rejected in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683, supra (decided June 24, 1977), to the extent of its application to "cases where the property which * * * serves as the basis for state court jurisdiction is completely unrelated to the plaintiff's cause of action" as it was in Harris (Shaffer v. Heitner, 433 U.S. 186, 208, 97 S.Ct. 2569, 2582, 53 L.Ed.2d 683). While the presence of such property alone no longer will support a state's assertion of jurisdiction, the court recognized that it nonetheless might be suggestive of "the existence of other ties among the defendant, the State, and the litigation" sufficient to establish the requisite minimum contacts (id., p. 2582).

It is settled law that a state may constitutionally garnish a debt owed to the defendant by another. Additionally, as an intermediate appellate court, we are bound to recognize that the debt here, as represented by the insurer's obligation to defend and indemnify the insured, is subject to attachment under CPLR 5201 (see, e. g., Chrapa v. Johnson, App.Div., 401 N.Y.S.2d 332 (decided December 9, 1977)). Absent a showing of any other connection of a nonresident defendant with this forum, the question presented then is whether the presence of that debt in New York, related to the extent that it is to the plaintiffs' underlying cause of action, establishes sufficient "minimum contacts" among the "defendant, the State, and the litigation" such that the maintenance of a suit by a resident plaintiff does not offend "traditional notions of fair play and substantial justice". We find that such ties are here present and thus we hold that due process is not offended by this state's assertion of jurisdiction. ² The relations are sufficient to support the entry of a binding judgment against the defendant (cf. International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95, supra ; see also Siegel, Supplementary Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 5201 (Supplementary Pamphlet, 1964 to 1977), pp. 16-19).

Our conclusion is neither novel nor creative. It is supported by precedent. Heretofore, the concern with Seider has been more with substantive than with constitutional infirmity, but where the courts have been called upon to assess the due process implications of the Seider doctrine in actions by New York residents, no constitutional impediment has been found (see, e. g., Minichiello v. Rosenberg, 2 Cir., 410 F.2d 106, rehearing en banc, 2 Cir., 410 F.2d 117, cert. den. 396 U.S. 844, 90 S.Ct. 69, 24 L.Ed.2d 94). A decade before the Supreme Court's decision in Shaffer v. Heitner, supra, Chief Judge Fuld wrote:

"In concluding that we should adhere to Seider v. Roth, it may prove helpful to have in mind some of the considerations upon which that decision was predicated.

"The historical limitations on both in personam and in rem jurisdiction, with their rigid tests, are giving way to a more realistic and reasonable evaluation of the respective rights of plaintiffs, defendants and the State in terms of fairness. (See, e. g., International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68.) Such an evaluation requires a practical appraisal of the situation of the various parties rather than an emphasis upon somewhat magical and medieval concepts of presence and power. Viewed realistically, the insurer in a case such as the present is in full control of the litigation; it selects the defendant's attorneys; it decides if and when to settle; and it makes all procedural decisions in connection with the litigation. (See, e. g., Thrasher v. United States Liab( l ). Ins. Co., 19 N.Y.2d 159, 167, 278 N.Y.S.2d 793, 799, 225 N.E.2d 503, 507.) Moreover, where the plaintiff is a resident of the forum state and the insurer is present in and regulated by it, the State has a substantial and continuing relation with the controversy. For jurisdictional purposes, in assessing fairness under the due process clause and in determining the public policy of New York, such factors loom large." (Simpson v. Loehmann, 21 N.Y.2d 305, 311, 287 N.Y.S.2d 633, 637, 234 N.E.2d 669, 672.)

It is clear, therefore, that the insurer plays the critical role in this litigation and bears the major risks of defense and judgment. In Harris the jurisdictional scheme had the effect of diminishing the personal assets of the one to whom the debt was owed....