Harmon v. Eudaily

• Decision Date: 05 September 1979
• Parties: Mabel L. HARMON, as next friend of Shineka Harmon, a minor, Leonard Harmon and Mabel L. Harmon, Individually, Plaintiffs, v. Daniel E. EUDAILY, M. D. and Beebe Hospital of Sussex County Incorporated, a Delaware Corporation, Defendants.
• Court: Delaware Superior Court

Page 232

407 A.2d 232

Mabel L. HARMON, as next friend of Shineka Harmon, a minor, Leonard Harmon and Mabel L. Harmon, Individually, Plaintiffs, v. Daniel E. EUDAILY, M. D. and Beebe Hospital of Sussex County

Incorporated, a Delaware Corporation, Defendants.

Superior Court of Delaware, New Castle County.

Submitted March 30, 1979.

Decided Sept. 5, 1979.

Upon defendant Eudaily's motion to dismiss. Denied.

Louis L. Redding, and Leonard L. Williams, Wilmington, for plaintiffs.

John J. Schmittinger, Schmittinger & Rodriguez, Dover, for defendant Eudaily.

O'HARA, Judge.

On September 22, 1978, a complaint was filed against defendants alleging negligent conduct on the part of defendant Eudaily, a physician, occurring on September 23, 1976. On the latter date Eudaily was a resident of the State of Delaware, licensed to practice medicine in this State maintaining an office in Georgetown, Delaware. Subsequently, and prior to the filing of the complaint in this action, defendant Eudaily left the State of Delaware and now resides and practices medicine in the State of Montana. Service was effected on Eudaily pursuant to 10 Del.C. § 3104, Delaware's newly enacted (effective July 11, 1978) Long-Arm Statute, which provides for personal jurisdiction to be obtained in this State over non-residents whose acts cause injury within the State.

Defendant moves to dismiss, contending that although he was a resident when the alleged wrongful acts were committed, he became a nonresident thereafter, and before 10 Del.C. § 3104 was enacted, and thus is not subject to the provisions of the new Long-Arm Statute. Within this contention are two arguments. First, that the new statute affects "substantive rights" and thus cannot be applied retroactively to a cause of action arising before its passage, and second, that the statute was not intended to apply to individuals who were residents of Delaware at the time the cause of action arose, even if such individuals relinquished their Delaware residency prior to the filing of a complaint. Defendant does not contest the fact that § 3104 meets due process standards, but contends that the limits of the statute must be observed.

When In personam jurisdiction is challenged by a motion to dismiss, the plaintiff has the burden to show a basis for long-arm jurisdiction. Simpson v. Thiele, D.Del., 344 F.Supp. 7 (1972). However, this burden is met by a threshold Prima facie showing that jurisdiction is conferred by the statute, Cohan v. Municipal Leasing Systems, Inc., N.D.Ill., 379 F.Supp. 1022 (1974); Socialist Workers Party v. Attorney General of United States, S.D.N.Y., 375 F.Supp. 318 (1974). Furthermore, the record is construed most strongly against the moving party. Ghazoul v. International Management Services, Inc., S.D.N.Y., 398 F.Supp. 307 (1975). In this case the allegations of the complaint are assumed to be true, leaving only the legal issues.

RETROACTIVE APPLICATION

The new Long-Arm Statute is silent as to whether it can be applied to existing causes of action. Delaware's statute is similar to those enacted by other states in response to the expansion of In personam jurisdiction which commenced with the landmark decision in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); See 13 U.L.A. Interstate and International Procedure Act § 1.03 (1975). A number of Courts have dealt with the question of retroactive jurisdiction. One commentator summarized the case law as it then existed by saying:

"Cases involving retroactive expansion of the bases of judicial jurisdiction over persons have produced inconsistent results although the courts have employed the same rules in dealing with similar statutes. Retroactivity has been sanctioned on the ground that jurisdictional provisions involve only modes of procedure in which there can be no vested rights. By contrast, prospectivity has often been required to avoid alteration of 'SUBSTANTIVE' OR 'VESTED' RIGHTS AND TO obviate the apparent anomalous retroactive imputation of consent and agency. Few courts have considered reliance on prior law the most significant barrier to retroactivity." Note, Retroactive Expansion of State Court Jurisdiction over Persons, 63 Colum.L.Rev. 1105 (1963).

Prospectivity has been required by a dwindling number of states. See, e. g., Chrischilles v. Griswold, 200 Iowa 453, 150 N.W.2d 94 (1967); Mladinich v. Kohn, Miss.Supr., 186 So.2d 481 (1966); Heberle v. P.R.O. Liquidating Co., Fla.App., 186 So.2d 280 (1966); State v. Jensen, Mo.Supr., 363 S.W.2d 666 (1963); Cassan v. Fern, 33 N.J.Super. 96, 109 A.2d 482 (1954); Amos v. Bowers, 121 Ga.App. 801, 175 S.E.2d 877 (1970). A case heavily relied upon by defendant, Gillioz v. Kincannon, 213 Ark. 1010, 214 S.W.2d 212 (1948), has been limited strictly to its peculiar facts ¹ in subsequent decisions. See Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962), and Safeway Stores, Inc. v. Shwayder Bros., Inc., 238 Ark. 768, 384 S.W.2d 473 (1964). Both of these cases upheld the retroactive application of long-arm statutes akin to our own. Another case cited by defendant, Nevins v. Revlon, Inc., 23 Conn.Sup. 314, 182 A.2d 634 (1962), was overruled by Carvette v. Marion Power Shovel Co., 157 Conn. 92, 249 A.2d 58 (1968). The District Court decision in Clews v. Stiles, D.N.M., 181 F.Supp. 172 (1960), from which defendant quotes, was reversed on appeal, Clews v. Stiles, 10th Cir., 303 F.2d 290 (1960).

Among the states which have adopted long-arm legislation not predicated solely on fictionalized "consent," the overwhelming weight of authority favors retrospective construction. Diamond Crystal Salt Co. v. P. J. Ritter Co., 1st Cir., 419 F.2d 147 (1969); Egeria, Societa di Navigazione Per Azioni v. Orinoco Mining Co., D.Md., 360 F.Supp. 997 (1973); Coreil v. Pearson, W.D.La., 242 F.Supp. 802 (1965); Chovan v. E. I. DuPont de Nemours & Co., E.D.Mich., 217 F.Supp. 808 (1963); Hoen v. District Court, 152 Colo. 451, 412 P.2d 428, 19 A.L.R.3d 131 (1966); Gordon v. Granstedt, 54 Haw. 597, 513 P.2d 165 (1973) (California law); Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957); Jones v. Garrett, 192 Kan. 109, 386 P.2d 194 (1963); Kagan v. United Vacuum Appliance Corp., 357 Mass. 680, 260 N.E.2d 208 (1970); Hunt v. Nevada State Bank, 285 Minn. 77, 172 N.W.2d 292 (1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1239, 25 L.Ed.2d 423 (1970); State v. District Ct., 148 Mont. 22, 417 P.2d 109 (1966); Kinchla v. Baumner, 114 N.H. 818, 330 A.2d 112 (1974); Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965), cert. denied, 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158 (1965); Kilbreath v. Rudy, 16 Ohio St.2d 70, 242 N.E.2d 658 (1968); Walke v. Dallas, Inc., 209 Va. 32, 161 S.E.2d 722 (1968); Tellier v. Edwards, 56 Wash.2d 652, 354 P.2d 925 (1960). See also Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 240 A.2d 505 (1968).

Defendant argues that Delaware adheres to the minority (non-retroactive) view by virtue of Monacelli v. Grimes, Del.Supr., 99 A.2d 255 (1953). The Monacelli case involved a revision of the Delaware nonresident motorist statute in the course of the 1953 recodification of the State's laws. The change permitted the State to give notice to nonresident defendants prior to substituted service on the Secretary of State, whereas the old law had required completed service on the Secretary of State prior to notification of the defendant. After the effective date of the 1953 Code, the plaintiff filed an action against a nonresident motorist pursuant to the 1935 Code procedure. The cause of action had arisen prior to the effective date of the new Code. It should be emphasized that Monacelli presented an unusual situation in that the Defendant sought a retroactive application which would Extinguish jurisdiction. Expressing doubt as to whether the change in notice procedures would satisfy due process, the Court declined to give the new statute retrospective operation and imperil plaintiff's existing cause of action.

Defendant contends that Monacelli is binding precedent in that the provisions of 10 Del.C. § 3104 "track almost identically" the language of 10 Del.C. § 3112 considered in Monacelli. A close comparison reveals significant distinctions between the two statutes. While subsection (b) of § 3104 does incorporate the legal fiction of implied consent, on which § 3112(a) relies for jurisdiction, it also contains a sentence which does not appear at all in § 3112:

"The following acts constitute legal presence within the state . . ." § 3104(b).

This provision clearly refers to subsection (c) of § 3104, not found in § 3112, which bases jurisdiction on enumerated acts or transactions within the State. This is consistent with the modern trend in draftsmanship, as reflected in "single act" statutes. The subsection essentially copies from § 1.03 of the Interstate and International Procedure Act, found in 13 U.L.A. (1975).

The distinction between "implied consent" and "single act" statutes is a critical one, for it has been utilized to hold the latter type of statutes applicable retrospectively despite precedent requiring prospective application of implied consent statutes.

"Only if jurisdiction in a case such as this is regarded as founded on a bargain between the State and the non-resident, whereby consent to be sued here is given as the price of a privilege conferred, can it be thought that the exercise of jurisdiction is unfair because the consent occurred before the terms of the bargain were known." Nelson v. Miller, supra, at 676.

See the thorough discussion in Adams Dairy Co. v. National Dairy Products Corp., W.D.Mo., 293 F.Supp. 1135 (1968); Annot., 19 A.L.R.3d 138 (1968). The notion of implied consent was at the very heart of the Monacelli decision, whereas the present case involves jurisdiction based on the alleged acts of negligence.

The fundamental rationale for prospective application...