Jarstad v. National Farmers Union Property & Cas. Co.

• Decision Date: 23 June 1976
• Docket Number: No. 8196,8196
• Citation: 92 Nev. 380,552 P.2d 49
• Parties: David Alan JARSTAD, a minor by and through his guardian ad litem, Hazel Jarstad, Appellant, v. NATIONAL FARMERS UNION PROPERTY AND CASUALTY COMPANY, Respondent.
• Court: Nevada Supreme Court

Page 49

552 P.2d 49

92 Nev. 380

David Alan JARSTAD, a minor by and through his guardian ad litem, Hazel Jarstad, Appellant, v. NATIONAL FARMERS UNION PROPERTY AND CASUALTY COMPANY, Respondent.

No. 8196.

Supreme Court of Nevada.

June 23, 1976.

Hibbs & Newton and Margo Piscevich, Reno, for appellant.

Vargas, Bartlett & Dixon and Peter D. Durney, Reno, for respondent.

OPINION

THOMPSON, Justice.

This appeal is from an order quashing service of process upon an unauthorized insurer.

National Farmers Union Property and Casualty Company has its principal place of business in Denver, Colorado, and apparently is authorized to do business in Wisconsin. It is not authorized or certified to do business in Nevada.

National issued a policy of automobile insurance to Hazel Jarstad containing uninsured motorist coverage. The purpose of such coverage is to guarantee that the injured insured will be in the same position in the event of injury attributable to the negligence of an uninsured motorist as that insured would be if he were injured through the negligence of a motorist carrying liability insurance.

Hazel Jarstad was a resident of Hixton, Wisconsin. David, her son and a resident of her household, also was insured under the policy.

Hazel and David came to Reno to visit Hazel's sister. While here, David, driving his mother's car, was injured as the result of a collision with an uninsured motorist. This happened on August 29, 1971. On July 14, 1971, National sent a renewal premium due notice to Hazel at Hixton, Wisconsin, to cover the period August 3, 1971, to February 3, 1972. That notice was forwarded to Hazel in Reno. Hazel sent the premium payment to National together with a request to change her mailing address to 983 Wilkinson Avenue, Reno, Nevada, 89502. The premium payment was received by National on August 13, 1971, and deposited.

National then sent to Hazel at the Reno address a 'declaration page.' Among other things, it stated: 'The described automobile will be principally garaged in the said town, county and state, unless otherwise stated herein.' The address typed in was: 'Hazel E. Jarstad, 983 Wilkinson Drive, Reno, Nevada, 89502.'

After the accident happened, correspondence between National and Hazel took place, the purpose of which was to ascertain whether Hazel's change of address was permanent or temporary. Hazel advised National that it was temporary. Had the change of residence been permanent, National would have cancelled the policy since it was not authorized to do business in Nevada.

The automobile collision precipitated litigation which culminated in a judgment against the uninsured motorist. National was notified of that litigation and of the judgment obtained but refuses to pay to the extent of its liability therefor. Consequently, this action was commenced to compel payment. National does not deny coverage or that the policy was in effect when the accident occurred. It contends only that it is not amendable to suit in Nevada. Therefore, it moved to quash service of process.

Before addressing the merits we first must resolve a procedural issue regarding the appealability of an order quashing service of process.

1. An appeal from a judgment or order in a civil action may be taken only 'as prescribed by these rules, and not otherwise.' NRAP 3A(a). An order quashing service of process is not among the appealable orders listed. NRAP 3A(b). Neither is such an appeal authorized by statute. We heretofore have ruled that an appeal may not be taken unless authorized by rule or statute. Bates v. Nevada Savings & Loan Ass'n, 85 Nev. 441, 456 P.2d 450 (1969); Nev. Gaming Comm. v. Byrens, 76 Nev. 374, 355 P.2d 176 (1960).

However, in years past, this court has entertained appeals from orders quashing service. Tiedemann v. Tidemann, 35 Nev. 259, 129 P. 313 (1912). See also State v. Moore, 46 Nev. 65, 207 P. 75 (1922); cf. LaGue v. District Court, 68 Nev. 125, 227 P.2d 436 (1951), and, on rehearing, 68 Nev. 131, 229 P.2d 162 (1951), where mandamus issued to compel the district court to accept jurisdiction.

Since our case law is somewhat confusing on the point, it is best that we attempt clarification. We, therefore, now rule that an order quashing service of process is not appealable. It may, however, be challenged by petition in this court for a writ of mandamus to compel the district court to accept jurisdiction. In so far as this case is concerned we shall treat this appeal as a petition for mandamus. It would be unfair to do otherwise in the light of confusing case precedent.

2. Service of process upon National was effected pursuant to NRS 685B.050. ¹ Although appellant claims also to have utilized NRS 14.065, she did not do so. Under that statute, service upon a foreign corporation not qualified to do business in Nevada, but alleged to have transacted business here, must be made by delivering a copy of the summons and complaint in the foreign jurisdiction to the president or other head of the corporation, secretary, cashier, managing agent, or resident agent thereof. Certain-Teed Prods. v. District Court, 87 Nev. 18, 479 P.2d 781 (1971). This did not occur.

National contends that service upon it pursuant to NRS 685B.050 is ineffective because the circumstances related do not constitute the transaction of an insurance business in Nevada within the contemplation of the Unauthorized Insurance Act.

NRS 685B.030(3) specifies acts in Nevada by an unauthorized insurer which are deemed to constitute 'the transaction of an insurance business in this state.' However, we need not decide whether the circumstances here present fall within the statute since it is evidence that chap. 685B regarding unauthorized insurers and providing for the service of process upon them, may be utilized only in suits by or on behalf of the state. This is not such a suit.

The purpose of the Unauthorized Insurance Act is expressed by NRS 685B.010. ² It is to subject certain persons and insurers to the jurisdiction of the commissioner and the courts of this state in suits by or on behalf of the state. (Underscoring supplied.) Indeed, the provision of the Act for service of process which the plaintiff-appellant here seeks to utilize, explicitly refers only to 'any action, suit or proceeding in any court by the commissioner or by the state . . ..' NRS 685B.050.

The district court ruled correctly. The plaintiff-appellant may not avail herself of the service of process provision of the Unauthorized Insurers Act. We presume, however, that service of process will now be attempted under NRS 14.065 (Certain-Teed Prods. v. District Court, 87 Nev. 18, 479 P.2d 781 (1971)), and we turn to resolve whether the circumstances of this case place National within the reach of the long-arm of that statute. ³

3. Heretofore we have considered 14.065 in a different factual setting. Certain-Teed Prods. v. District Court, supra. We there noted that the broad language used in the statute discloses a legislative intention to reach the outer limits of federal constitutional due process. The criteria for in personam jurisdiction over an out-of-state defendant based upon a single act within the forum state was delineated. The defendant must purposefully avail himself of the privilage of acting in the forum state or of causing important consequences in that state. The cause of action must arise from the consequences in the forum state of the defendant's activities, and those activities, or the consequences thereof, must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.

Applying such criteria to the facts before us, we find that National is amenable to process under 14.065 and if proper service upon it is made under that statute, the court below will acquire jurisdiction to decide this controversy. In addition to the landmark case of McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), we belive that the underlying rationale of the following cases support our conclusion. Wolfman v. Modern Life Ins. Co., 352 Mass. 356, 225 N.E.2d 598 (1967); Zacharakis v. Bunker Hill Mutual Ins. Co., 281 App.Div. 487, 120 N.Y.S.2d 418 (1953); Aero Associates Inc. v. La Metropolitana, 183 F.Supp. 357 (D.C.N.Y.1960); Ross v. American Income Life Ins. Co., 232 S.C. 433, 102 S.E.2d 743 (1958).

When National accepted the premium payment sent by its insured from Nevada, and then renewed the existing policy by sending a declaration page specifying the insured's address to be in this state and that her automobile would be garaged here, it contracted to insure a 'person, property or risk located within this state' within the contemplation of 14.065(2)(d). The renewal was intentionally and...