Eudaily v. Harmon

• Decision Date: 04 September 1980
• Citation: 420 A.2d 1175
• Parties: Daniel H. EUDAILY, M.D., Defendant Below, Appellant, v. Mabel L. HARMON, as next friend of Shineka Harmon, a minor, Leonard Harmon and Mabel L. Harmon, Individually, Plaintiffs Below, Appellees.
• Court: United States State Supreme Court of Delaware

Page 1175

420 A.2d 1175

Daniel H. EUDAILY, M.D., Defendant Below, Appellant, v. Mabel L. HARMON, as next friend of Shineka Harmon, a minor, Leonard Harmon and Mabel L. Harmon, Individually,

Plaintiffs Below, Appellees.

Supreme Court of Delaware.

Submitted June 9, 1980.

Decided Sept. 4, 1980.

Upon appeal from Superior Court. Affirmed.

John J. Schmittinger and Douglas W. Lundblad (argued), Schmittinger & Rodriguez, P.A., Dover, for defendant-appellant Daniel H. Eudaily.

Louis L. Redding, Wilmington and Leonard L. Williams and Kester I. H. Crosse, Wilmington (argued), for plaintiffs-appellees.

Before HERRMANN, C.J., DUFFY and QUILLEN, JJ.

HERRMANN, Chief Justice:

In this medical malpractice case, we are asked to determine: (1) whether 10 Del.C. § 3104, ¹ the Delaware Long-Arm Statute, applies to a defendant who was a resident of Delaware at the time the cause of action arose in Delaware but who later, before the time of the commencement of the suit, became a nonresident; and (2) whether § 3104 is operable when the cause of action arose prior to its enactment into law.

I.

The facts in this appeal are undisputed and are as follows: In September 1978, the plaintiffs filed a complaint against the defendant physician and his hospital alleging that, in September 1976, they had been negligent in the delivery and treatment of the plaintiffs Shineka and Mabel Harmon, respectively. The defendant Daniel H. Eudaily, the physician in charge of the plaintiffs' case, was, at the time of the alleged negligent conduct, a resident of the State of Delaware and was licensed to practice medicine in this State.

Subsequent to the alleged negligent conduct, but prior to the commencement of this action, Dr. Eudaily left the State to take up residence and practice in the State of Montana. Also within that time period, 10 Del.C. § 3104 was enacted into law; and Eudaily was served with process pursuant thereto.

Eudaily entered a special appearance for the purpose of moving for dismissal of the action for lack of personal jurisdiction. In an impressive opinion, the Trial Judge denied this motion, Harmon v. Eudaily, Del.Super., 407 A.2d 232 (1979). The defendant appeals; we affirm.

II.

The defendant first contends that § 3104 applies only to parties that are nonresident at the time of the occurrence giving rise to the litigation. He argues that § 3104 parallels, in all significant respects, 10 Del.C. § 3112, ² the Delaware Nonresident Motor Vehicle Operator Statute. Since an additional provision, 10 Del.C. § 3113, ³ was added by the General Assembly to that Act extending coverage of § 3112 to residents who depart from the State, either temporarily or permanently, subsequent to an accident, it is contended that the absence of such a provision in connection with § 3104 requires the conclusion that it does not apply to parties who were Delaware residents at the time the cause of action arose, but who later became nonresidents. We disagree.

Assuming, arguendo, the correctness of the defendant's underlying assumption that, without § 3113, § 3112 could not have applied to defendants in the posture of the defendant Eudaily in this case, significant differences exist between § 3104 and § 3112: Section 3112 applies to "(a)ny nonresident owner, operator or driver of any motor vehicle who accepts the privilege extended by law to nonresidents of this State to operate or drive such motor vehicles ...." (Emphasis added). Section 3104, on the other hand, applies to "any person who commits any of the acts hereinafter enumerated ...." (Emphasis added). As the Superior Court noted, the first mention of nonresidence in the body of § 3104 occurs in the discussion of the mode of service of process. 407 A.2d at 236.

In addition, and more conclusively, we find that the construction placed on the Statute by the defendant would ignore its underlying purpose. As the Superior Court persuasively stated:

"The obvious intent of § 3104 is to afford Delawareans a means of redress against persons not subject to personal service within the State. To exempt those who depart from the State, after the alleged commission of a tort, from the reach of a statute, in the absence of language suggesting this intent, would subvert this policy. Such a construction would create a gaping loophole enabling a wrongdoer to escape Delaware jurisdiction by fleeing the State."

407 A.2d at 236. Here, the defendant is attempting to fashion the Act, which was meant to be a sword in the hands of injured plaintiffs, into a shield for those who cause injury to Delaware residents and then flee or leave the State. It is unreasonable to assume that such result was intended by the Legislature.

We conclude, therefore, that § 3104 is applicable to residents who become nonresidents after the cause of action arose but before the commencement of the suit. This conclusion is consistent with the generally prevailing rule. E.g., Conley v. Sousa, Ky.Supr., 554 S.W.2d 87 (1977); State v. Davies, N.Y.Supr.Ct., 24 A.D.2d 240, 265 N.Y.S.2d 358 (1965), resettled, 25 A.D.2d 690, 268 N.Y.S.2d 927, aff'd, N.Y.Ct.App., 18 N.Y.2d 950, 277 N.Y.S.2d 146, 223 N.E.2d 570 (1966); Kinchla v. Baumner, N.H.Supr., 114 N.H. 818, 330 A.2d 112 (1974); Jackson v. Keske, Ohio Supr., 20 Ohio St.2d 89, 253 N.E.2d 778 (1966).

III.

The defendant also argues that § 3104 may not be applied to him because it was enacted subsequent to the alleged acts of negligence giving rise to this litigation. He argues that § 3104, like § 3112, is an implied consent statute; that, therefore, it cannot be applied retroactively because: (a) it is substantive in nature; and (b) consent could not be implied when, at the time of the action complained of, the Statute did not exist. We disagree.

As demonstrated, supra, § 3104 differs substantially from § 3112. Critical to the issue in question is the following language found in § 3104 that is not present in § 3112:

"(b) The following acts constitute legal presence within the state. Any person who commits any of the acts hereinafter enumerated thereby submits himself to the jurisdiction of the Delaware courts ....

"(c) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or his personal representative, who in person or through an agent:

"(1) Transacts any business or performs any character of work or service in the State;

"(2) Contracts to supply services or things in this State;

"(3) Causes tortious injury in the State by an act or omission in this State; "(4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State;

"(5) Has an interest in, uses or possesses real property in the State; or

"(6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation or agreement located, executed or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing."

10 Del.C. § 3104 (b) and (c). This and other language in § 3104, as the Trial Court correctly determined, 407 A.2d at 235, is derived almost completely from § 103 of the Uniform Interstate and International Procedure Act, a "single act" statute. ⁴ 13 Uniform Laws Annotated § 1.01 et seq. Uniform Interstate and International Procedure Act (1975). Compare § 3104(a) with § 1.01; § 3104(c) with § 1.03(a); § 3104(j) with § 1.03(b); § 3104(l) with § 1.05; § 3104(k) with § 1.06; and § 3104(i) with § 2.01. Given the great similarity in language and construction of these two Acts, we conclude that § 3104 is not a consent statute as defendant contends, but is a "single act" statute as the Trial Court determined. 407 A.2d at 234-35.

The prevailing rule regarding single act statutes is that they are procedural in nature, thus affecting no substantive rights; that, therefore, they may be applied retroactively. E.g., McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Safeway Stores, Inc. v. Scwayder Brothers, Inc., Ark.Supr., 238 Ark. 768, 384 S.W.2d 473 (1964); Hoen v. District Court in and for County of Arapahoe, Colo.Supr., 159 Colo. 451, 412 P.2d 428 (1966); Gordon v. Granstedt, Haw.Supr., 54 Haw. 597, 513 P.2d 165 (1973) (applying California law); Nelson v. Miller, Ill.Supr., 11 Ill.2d 378, 143 N.E.2d 673 (1957); Woodring v. Hall, Kans.Supr., 200 Kan. 597, 438 P.2d 135 (1968); Rose v. E.W. Bliss Co., Ky.Ct.App., 516 S.W.2d 329 (1974); Kagan v. United Vacuum Appliance Corporation, Mass.Supr., 357 Mass. 680, 260 N.E.2d 208 (1970); Hunt v. Nevada State Bank, Minn.Supr., 285 Minn. 77, 172 N.W.2d 292 (1969); Scheidegger v. Greene, Mo.Supr., 451 S.W.2d 135 (1970); State v. District Court of Fourth Judicial District, Mont.Supr., 148 Mont. 22, 417 P.2d 109 (1966); Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., N.Y.Ct.App., 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965); Kilbreath v. Rudy, Ohio Supr., 16 Ohio St.2d 70, 242 N.E.2d 658 (1968); Walke v. Dallas, Inc., Va.Supr., 209 Va. 32, 161 S.E.2d 722 (1968).

We agree with the rule thus generally prevailing. Section 3104 does not alter any substantive right the defendant may have; it merely designates a jurisdiction in which the dispute may be determined. In the absence of controlling forum non conveniens factors, as here, we perceive no basic unfairness in bringing a former resident back into our courts when, at the time the cause of action arose in Delaware, the defendant was fully amenable to process in Delaware as a resident.

The defendant attempts to invoke the rule of Monacelli v. Grimes, Del.Supr., 99 A.D.2d 255 (1953) to prevent retroactive application of § 3104. In that case, this Court held that the provisions of § 3112, as then...