Javorek v. Superior Court, Monterey County
| Decision Date | 22 May 1975 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Frank J. JAVOREK et al., Petitioners, v. SUPERIOR COURT, COUNTY OF MONTEREY, Respondent; Jack Bradford LARSON, Sr., et al., Real Parties in Interest. Civ. 35988. |
Nagle, Vale, McDowall & Cotter, Vernon V. Vale, San Mateo, for petitioners.
Holbrook & Va Noy, James G. Van Noy, Jr., Salinas, for real party in interest, Jack Larson, Sr.
Hardy, Erich &Brown, Anthony D. Osmundson, Sacramento, for real parties in interest, Jack Larson, Jr., Juanita Marie Searle and Joel Mark Larson.
Petitioners here seek a writ of mandate commanding respondent court 'to dismiss [this] action for lack of jurisdiction, quash service of the Summons for lack of personal jurisdiction, to quash the levy of the Writ of Attachment and Garnishment, to discharge and vacate the Attachment and/or to stay or dismiss the action on the grounds of inconvenient forum.' The basic question presented by this petition is whether the attachment of a liability insurer's obligation to defend and indemnify constitutes a valid basis for jurisdiction over a nonresident insured.
Real parties in interest, Jack Larson, et al., filed a complaint in Monterey County Superior Court for personal injuries and wrongful death against petitioners Frank J. Javorek and Bonita Rae Javorek, and against their codefendants Marian Elizabeth Brice, Jennie Catherine Bucks, El Estero Motors, a corporation, and Does 1 to 10 inclusive.
Real parties in interest are residents of California. Petitioners Frank and Bonita Javorek and codefendants Brice and Bucks are residents of Oregon. Codefendant El Estero Motors is a California corporation.
The summons was not personally served on petitioners, nor have they appeared generally in this action. Apparently the complaint and summons were mailed to all defendants pursuant to Code of Civil Procedure section 415.40.
The Javoreks had an automobile liability insurance policy issued to them in Oregon by State Farm Mutual Automobile Insurance Company, an Illinois corporation which does business in California.
On July 22, 1974, at the application of real parties in interest, respondent court issued a Writ of Attachment against all property of petitioners in Sonoma County, 'as per CCP 537.3(c), including the contract obligations of State Farm Mutual Automobile Insurance Company (State Farm) to defend and indemnify each and/or both of these defendants against a debt owing to each and/or all of the plaintiffs.'
Petitioners appeared specially and filed a Notice of Exception to Sufficiency of Individual Sureties and a Notice of Motion to Discharge Attachment Improperly Issued. Respondent court denied the Motion to Discharge Attachment.
Petitioners then filed a 'Motion to Quash Service of Summons for Lach of Personal Jurisdiction, Motion to Quash Attachment, and Motion to Stay or Dismiss Action on Grounds of Inconvenient Forum.' These motions were denied.
The only facts before the court are those alleged in the complaint. The complaint alleges that on December 28, 1973, real party in interest Jack Larson and his wife Juanita were driving on Oregon State Route 20 when their car collided with two other cars, one owned by petitioners Frank and Bonita Javorek and driven by Frank Javorek; the other owned by defendant Brice and driven by defendant Bucks. The collision proximately caused the death of Juanita Larson and serious bodily injury to Jack Larson.
The complaint seeks damages for the wrongful death of Juanita Larson and for the medical expenses, pain and suffering and loss of income of Jack Larson.
The complaint also alleges that the injuries suffered were proximately caused by the defective manufacture or design of the Renault automobile in which the Larsons were riding, and names as defendants in those causes of action, El Estero Motors, a California corporation.
The question of whether a liability insurer's obligation to defend constitutes a valid basis for jurisdiction over the insured has been a controversial one ever since the New York Court of Appeals ruled on the issue in Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312. 1 The problem has been considered only once in California, in the case of Turner v. Evers, 31 Cal.App.3d Supp. 11, 107 Cal.Rptr. 390, Appellate Division of the Sacramento Superior Court.
The plaintiffs in Seider were residents of New York who were injured in an automobile accident in Vermont, allegedly through the negligence of defendant Lemiux, a resident of Quebec. Lemiux had purchased a liability insurance policy in Canada from the Hartford Accident and Indemnity Company, a corporation doing business in New York. Under New York's attachment statute, the plaintiff attached the contractual obligation of Hartford to defend and indemnify Lemiux as a 'debt' owed him by Hartford, a New York resident.
A majority of the court upheld the attachment as a valid basis for exercise of quasi in rem jurisdiction. The court did not consider the constitutional aspects of the exercise of jurisdiction, but stated that '[t]he whole question . . . is whether Hartford's contractual obligation to defendant is a debt or cause of action such as may be attached.' (17 N.Y.2d 111, at p. 113, 269 N.Y.S.2d 99, at p. 101, 216 N.E.2d 312, at p. 314.) Noting that the policy required Hartford to defend Lemiux in any automobile negligence action, and to indemnify him for any judgment rendered against him, the court concluded that as soon as the accident occurred there was imposed on Hartford a contractual obligation which should be considered a 'debt' within the meaning of New York's attachment statute.
The majority found support for its conclusion in Matter of Riggle, 11 N.Y.2d 73, 226 N.Y.S.2d 416, 181 N.E.2d 436. There, Mabel Wells, a New York resident, had been injured in Wyoming by Riggle, a resident of Illinois. In order to sue Riggle's estate, Mrs. Wells sought to have appointed a New York administrator of Riggle's New York property, which consisted solely of 'the personal obligation of an indemnity insurance carrier to defend him.' (11 N.Y.2d at p. 76, 226 N.Y.S.2d at p. 417, 181 N.E.2d at p. 437.) The New York Court of Appeals had concluded that the insurer's obligation was a 'debt' owed to the insured and therefore qualified as 'personal property' sufficient to confer jurisdiction under the Surrogate's Court Act. The majority in Seider reasoned that if the contractual obligation of the insurance company constitutes a 'debt' to the insured which can be administered as an estate, it also could be attached as a basis of quasi in rem jurisdiction. (17 N.Y.2d at p. 114, 269 N.Y.S.2d 99, 216 N.E.2d 312.)
Three of the seven members of the court dissented, arguing that the obligation of the insurer is a 'contingent undertaking which does not fall within the definition of attachable debt contained in [the attachment statute] . . ..' (17 N.Y.2d at p. 115, 269 N.Y.S.2d at p. 103, 216 N.E.2d at p. 315.) The dissent also stated that 'to base jurisdiction on the mere existence of an automobile liability policy, even though the promises in it are not yet due, is to allow a direct action against the insurer,' and emphasized that 'where the grounds to obtain jurisdiction are tenuous,' the court should refrain from approving a 'direct action' against the insurer in 'the guise of 'in rem' jurisdiction over a nonresident motorist . . ..' (17 N.Y.2d at p. 117, 269 N.Y.S.2d at p. 105, 216 N.E.2d at p. 317.)
Slightly more than one year later, the New York court was faced with the identical issue in the case of Simpson v. Loehmann, 21 N.Y.2d 305, 287 N.Y.S.2d 633, 234 N.E.2d 669, motion for reargument denied 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319. In Simpson, a New York infant was injured in Connecticut when cut by the propeller of a boat owned by the defendant, a Connecticut resident. The plaintiffs (the infant and his father) were unable to obtain personal jurisdiction over the defendant, but attached a liability insurance policy issued to him by the Insurance Company of North America, a Pennsylvania corporation doing business in New York.
The defendant moved to vacate the attachment, raising a number of constitutional issues (21 N.Y.2d at p. 306, 287 N.Y.S.2d 633, 234 N.E.2d 669), and requesting that the court reconsider its holding in Seider. Although the composition of the court had changed since Seider was decided, a majority of four voted to uphold the exercise of jurisdiction.
One question which had not been discussed by the New York court in either Seider or Simpson was whether the defendant, by appearing to defend the action on its merits, thereby subjected himself to in personam jurisdiction and was personally liable to the plaintiff for any judgment in excess of the limits of his insurance policy. This issue was clarified in the per curiam opinion of the New York court which denied the motion for reargument in Simpson. The court quoted the statement from Simpson 21 N.Y.2d at p. 310, 287 N.Y.S.2d at pp. 636-637, 234 N.E.2d at p. 671
The court then went on to say '[t]his, it is hardly necessary to add, means that there may not be any recovery against the defendant in this sort of case in an amount greater than the face value of such insurance policy even though he proceeds with the defense on the merits.'...
To continue reading
Request your trial