American Family Mut. Ins. Co. v. Royal Ins. Co. of America
| Decision Date | 02 January 1992 |
| Docket Number | No. 90-1010,90-1010 |
| Citation | 481 N.W.2d 629,167 Wis.2d 524 |
| Parties | AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff, v. ROYAL INSURANCE COMPANY OF AMERICA, Defendant-Respondent-Petitioner, d ] Milwaukee Mutual Insurance Company, Defendant-Appellant, Julia B. Post, Karen J. Cardinal and Leader National Insurance Company, Defendants. . Oral Argument |
| Court | Wisconsin Supreme Court |
For the defendant-respondent-petitioner there were briefs by John J. Albert and Albert, Jude, Shuman & Simanek, S.C., Racine and oral argument by John J. Albert.
For the defendant-appellant there was a brief by Russell M. Ware, Timothy S. Knurr and Schoone, Ware, Fortune & Leuck, S.C., Racine and oral argument by Russell M. Ware.
This is a review of a published decision of the court of appeals, 1 reversing a judgment of the Circuit Court for Racine County, Honorable Emmanuel J. Vuvunas, Judge, which had granted Royal Insurance Company of America's Motion for Summary Judgment against Milwaukee Mutual Insurance Company.
The issue is whether service of an unauthenticated photocopy of an authenticated Summons and Complaint is sufficient to meet the requirement of service of an authenticated Summons and Complaint necessary to commence an action under ch. 801, Civil Procedure--Commencement of Action and Venue. We hold such service was fundamentally defective and therefore the circuit court lacked personal jurisdiction over Milwaukee Mutual Insurance Company. Therefore, we affirm the court of appeals.
The facts arise out of the companion case decided by this court, Cardinal v. Leader Nat'l Ins. Co., 166 Wis.2d 375, 480 N.W.2d 1 (1992). On March 30, 1986 a two vehicle accident causing personal injuries occurred involving the insureds of American Family Mutual Insurance Company (American Family), Leader National Insurance Company (Leader), Milwaukee Mutual Insurance Company (Milwaukee Mutual), and Royal Insurance Company of America (Royal). The only parties before us are Royal and Milwaukee Mutual.
After the accident, American Family made $5,000 in payments to its insured. American Family filed a Summons and Complaint against, inter alia, Royal and "ABC Insurance Co." seeking reimbursement (American Family apparently had yet to determine the true identity of "ABC Insurance Co." was Milwaukee Mutual). American Family did not serve Milwaukee Mutual with the Summons and Complaint.
Royal filed its Answer and Affirmative Defenses in response to American Family's Summons and Complaint and cross-claimed against Milwaukee Mutual. Royal realized that it was necessary for American Family's Summons and Complaint to be served upon Milwaukee Mutual and in May, 1989, through the Office of the Commissioner of Insurance, Royal served Milwaukee Mutual with unauthenticated photocopies of American Family's authenticated Summons and Complaint and Royal's Cross-Claim. It is the service of the unauthenticated photocopy of the authenticated Summons and Complaint that is at issue.
When Milwaukee Mutual did not timely answer Royal's Cross-Claim, Royal moved for Default Judgment. In response, Milwaukee Mutual filed: (1) a Motion to Dismiss the Action for lack of jurisdiction, (2) a Motion for an Order Extending Milwaukee Mutual's Time to Answer Royal's Cross-Claim if the action was not dismissed, and (3) its Answer and Affirmative Defenses to Royal's Cross-Claim. Milwaukee Mutual argued that the circuit court lacked personal jurisdiction over Milwaukee Mutual because of "insufficiency of process and an insufficiency of service of process."
The circuit court denied Royal's Motion for Default Judgment and Milwaukee Mutual's Motion for Dismissal, and granted Milwaukee Mutual's Motion for Extension of Time in which to answer. Royal moved for Summary Judgment against Milwaukee Mutual's Answer and Affirmative Defenses. Thereafter, Milwaukee Mutual moved for reconsideration of the circuit court's denial of its Motion to Dismiss. The circuit court denied Milwaukee Mutual's Motion for Reconsideration and granted Royal's Motion for Summary Judgment.
Milwaukee Mutual appealed. The court of appeals reversed the circuit court and held that service of an unauthenticated photocopy of an authenticated Summons and Complaint was fundamentally defective and therefore the circuit court lacked personal jurisdiction over Milwaukee Mutual.
Royal filed a petition for review which this court granted. The question is whether service of an unauthenticated photocopy of an authenticated Summons and Complaint precludes a circuit court from obtaining personal jurisdiction.
Section 801.02(1) Stats., 1989-90 sets forth the procedures necessary to commence an action:
801.02 Commencement of action. (1) A civil action in which a personal judgment is sought is commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 60 days after filing.
Section 801.09(4) Stats., 1989-90 clarifies "authentication:"
801.09 Summons, contents of.
(4) There may be as many authenticated copies of the summons and the complaint issued to the plaintiff or counsel as are needed for the purpose of effecting service on the defendant. Authentication shall be accomplished by the clerk's placing a filing stamp indicating the case number on each copy of the summons and the complaint.
Determining what constitutes "authentication" under secs. 801.02 and 801.09 Stats., involves statutory interpretation. Questions of statutory interpretation are questions of law this court reviews de novo. Town of Clearfield v. Cushman, 150 Wis.2d 10, 19, 440 N.W.2d 777 (1989).
The purpose of the Summons is two-fold: it gives notice to the defendant that an action has been commenced against such defendant and it confers jurisdiction on the court over the person served. Bulik v. Arrow Realty, Inc., 148 Wis.2d 441, 444, 434 N.W.2d 853 (Ct.App.1988). The purpose of authentication is to give assurance by the clerk that copies served are true copies of filed documents and to provide the case number for future reference. J.M.S. v. Benson, 91 Wis.2d 526, 532, 283 N.W.2d 465 (Ct.App.1979), rev'd on other grounds, 98 Wis.2d 406, 297 N.W.2d 18 (1980).
Several Wisconsin cases have addressed whether defects in a Summons and Complaint are fatal to jurisdiction. Two lines of analyses emerge; one stressing strict statutory compliance, the other allowing for non-prejudicial technical errors.
Danielson v. Brody Seating Co., 71 Wis.2d 424, 238 N.W.2d 531 (1976), involved the defective service of a Summons and Complaint upon a corporate defendant. This court held that the circuit court did not have jurisdiction over an improperly served corporate defendant regardless of whether that defendant had actual notice of the action. This court stated:
The service of a summons in a manner prescribed by statute is a condition precedent to a valid exercise of personal jurisdiction, even though a different method might properly have been prescribed, and notwithstanding actual knowledge by the defendant.
....
The evidence does support actual notice, but actual notice alone is not enough to confer jurisdiction upon the court. Service must be made in accordance with the manner prescribed by statute.
Danielson, 71 Wis.2d at 429-30, 238 N.W.2d 531.
In Mech v. Borowski, 116 Wis.2d 683, 342 N.W.2d 759 (Ct.App.1983), plaintiff served a copy of her Summons and Complaint on the defendant before, instead of after, filing the original. This resulted in the service of an unauthenticated Summons and Complaint. Plaintiff argued that since defendants had notice of the action, they were not prejudiced by the lack of statutory compliance and dismissal of the case would contravene the equitable doctrine of fairness.
The court of appeals held that the service of unauthenticated Summons and Complaint was ineffective for the circuit court to acquire jurisdiction. The court of appeals stated: "Wisconsin requires strict compliance with its rules of statutory service, even though the consequences may appear to be harsh." Mech, 116 Wis.2d at 686, 342 N.W.2d 759 (citation omitted).
In Canadian Pac. Ltd. v. Omark-Prentice Hydraulics, 86 Wis.2d 369, 272 N.W.2d 407 (Ct.App.1978), complainant's Summons omitted stating the defendant must answer within 20 days. Finding the defendant was not misled to his prejudice, the court of appeals concluded that the defect in the Summons was not a jurisdictional defect. Canadian, 86 Wis.2d at 374, 272 N.W.2d 407.
In J.M.S. v. Benson, 91 Wis.2d 526, 283 N.W.2d 465 (Ct.App.1979), the clerk stamped copies of the Amended Summons and Complaint with the name of the court and the time and date of filing, but neglected to stamp the case number on the papers also. Concluding that a Summons, as notice, may contain minor inconsequential inaccuracies, and noting that defendant did not claim that the copies served varied with the originals or that he was misled, the court of appeals held that the action was properly commenced. J.M.S., 91 Wis.2d at 532, 283 N.W.2d 465.
In Schlumpf v. Yellick, 94 Wis.2d 504, 288 N.W.2d 834 (1980), the Amended Summons and Complaint had a different number typed in than was stamped on the original Summons and Complaint. The defendant argued that the amended version was not properly authenticated and...
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