Colley v. Dyer

• Citation: 821 P.2d 565
• Decision Date: 02 December 1991
• Docket Number: No. 90-210,90-210
• Parties: 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).
• Court: United States State Supreme Court of Wyoming

Page 565

821 P.2d 565

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).

No. 90-210.

Supreme Court of Wyoming.

Dec. 2, 1991.

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.

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.

Soon after filing her complaint, Colley unsuccessfully attempted to make personal service of process upon Dyer at "B & R Trailer Court, Rock Springs, Wyoming 82901." 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.

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.

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

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.

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.

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.

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.

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.

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.

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).

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 Wash.2d 471, 760 P.2d 925 (1988) (statute included a due diligence requirement).

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.

Knowing that diligent efforts to locate Dyer are required, we must ask what comprises the "diligent efforts" needed to satisfy federal due process.

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)).

We apply this concept in the instant case to determine whether diligent efforts were taken to locate Dyer.

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.

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, Wyoming 82901." 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.

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...