Ledbetter v. Schnur

• Citation: 259 A.2d 237,107 N.J.Super. 479
• Parties: Diane LEDBETTER, a infant by her guardian ad litem, James Ledbetter, and James Lebdetter, individually, Plaintiffs, v. Leon H. SCHNUR, Lillian F. Schnur, Robert B. Stuart, and Donald Savage, Defendants.
• Decision Date: 25 November 1969
• Court: Superior Court of New Jersey

Page 479

107 N.J.Super. 479

259 A.2d 237

Diane LEDBETTER, a infant by her guardian ad litem, James

Ledbetter, and James Lebdetter, individually, Plaintiffs, v. Leon H. SCHNUR, Lillian F. Schnur, Robert B. Stuart, and Donald Savage, Defendants.

Superior Court of New Jersey, Law Division.

Argued Oct. 17, 1969.

Decided Nov. 25, 1969.

Leo D. Burrell, Cedar Grove, for plaintiffs.

Neil Reiseman, Newark, for defendant Robert B. Stuart (Schreiber & Lancaster, Newark, attorneys).

OWENS, J.S.C.

Plaintiffs seek an order providing for service of process upon defendant Donald Savage by substituted service on the insurance carrier of defendant Robert B. Stuart, the owner of the motor vehicle involved in the accident.

The complaint alleges that plaintiff Diane, a pedestrian, was struck by two vehicles. One vehicle was owned by a co-defendant, Leon Schnur, and operated by Lillian Schnur. The other vehicle was owned by defendant Stuart (hereafter 'owner') and operated by defendant Savage. Savage was driving with the owner's consent, but not as his agent. This accident occurred on March 29, 1969 in Cedar Grove, New Jersey.

Plaintiffs served the owner Stuart, but could not effect service upon the driver Savage, who apparently departed this State leaving no forwarding address. Plaintiffs' attorney made an exhaustive but unsuccessful search to locate the driver.

The insurance carrier, Fidelity and Casualty Insurance Company, has entered an appearance for the owner, its named assured, and will eventually obtain a dismissal for lack of agency. The owner's policy, under the omnibus clause, extends coverage of the driver. However, the carrier does not appear for the driver, presumably for failure to effect service.

Therefore, to restate the issue, plaintiffs seek to serve the driver by way of substituted service by serving the owner's insurance company.

Plaintiffs urge as authority for the validity of such service the case of Rudikoff v. Byrne, 101 N.J.Super. 29, 242 A.2d 880 (Law Div.1968). There the court allowed service of process on defendant pursuant to R.R. 4:4--4(j) and R.R. 4:4--5(a), the rationale of the holding being that although New Jersey did not expressly allow such service, the rules did permit service outside the State if such service were valid in that state. Service was made in New York State where such service is permitted. Dobkin v. Chapman; Sellars v. Raye, and Keller v. Rappoport, 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451 (Ct.App.1968). This was a tri-case decision treated in one opinion. Dobkin and Sellars were cases of uninsured drivers where service on the Motor Vehicle Accident Indemnification Corporation was sustained. Since Keller v. Rappoport involved service on defendant's insurance carrier, we shall hereafter refer to the decision only as Keller v. Rappoport.

Rudikoff v. Byrne, Supra, clearly holds that service was allowed because New York law was followed. It also noted that at that time there was no precedent in New Jersey for such service.

It is true that no provision of our rules expressly permits service upon an insured by serving his insurance carrier, and there is no judicial precedent for it in our State. (101 N.J.Super., at 33, 242 A.2d at 882.)

Whether Rudikoff v. Byrne could be used as authority for granting plaintiff's motion is no longer important. It is recognized that there should be some provision in the rules to authorize this type of service. Carlin v. Schuler, 89 N.J.Super. 366, 215 A.2d 56 (Law Div.1965). However, it is the opinion of the court that R. 4:4--4(i), effective September 8, 1969, does in fact authorize the court to allow service on the driver Savage by serving the owner's carrier if the court finds good cause. R. 4:4--4(i) reads:

If service cannot be made by any of the modes provided by this rule, any defendant may be served as provided by court order, consistent with due process of law.

The tentative draft comment under this provision indicates it is intended to fill the gap in the present rules by permitting the court to direct service to be made in a particular manner where service cannot be effected pursuant to the other provisions of this rule, so long as the order is consistent with due process of law. It further suggests that such a provision is significant in circumstances where usual modes of service are either impossible or unduly oppressive upon plaintiff or Where the defendant successfully evades service of process.

The court having authority to grant or deny plaintiff's motion, we proceed directly to the issue.

The first question to be resolved is the mandate of R. 4:4--4. By affidavit, plaintiffs' attorney stated that he had visited the address that Savage gave the police. The owner of the premises advised him that Savage had moved without leaving a forwarding address. The attorney also mailed registered letters to the same address, which were returned marked 'moved' and 'no return address.' Therefore, R. 4:4--4(e), 'Alternate Mode of Service,' could not be used. The affidavit also states that defendant's mother resides at 7806 Charlesmont Road, Edgemere, Maryland, but certified letters sent to that address have been returned unclaimed. Therefore, R. 4:4--5(a) cannot be used. See Carlin v. Schuler, Supra; Zander v. Martine, 66 N.J.Super. 310, 169 A.2d 228 (Cty.Ct.1961). Consequently, the only other mode of service would be that stated in R. 4:4--4(i).

The court now turns to the constitutional question of due process of law. In weighing the constitutional question, the court in Keller v. Rappoport, Supra, held that due process is a matter of balancing several factors: (1) plaintiff's need, (2) the public interest, (3) the reasonableness of plaintiff's efforts to inform defendant, and (4) the availability of other safeguards for defendant's interest.

In Keller plaintiff, a New York resident, sued to recover for injuries sustained when his automobile collided with defendant's car. At that time defendant resided in Long Beach, Nassau County, New York. He moved from that place without leaving a forwarding address, and plaintiff was unable to serve him. Plaintiff was told that defendant had moved to California. Inquiry proved fruitless. Plaintiff then applied to the Supreme Court, Nassau County, for an Ex parte order for substituted service under paragraph 4 of CPLR 308, which reads:

4. In such manner as the court, upon motion without notice, directs, if service is impracticable under paragraph one, two or three of this section.

That rule allowed the court discretion, providing it as exercised 'consistent with due process of law.' The court applied the four factors and concluded that the Ex parte order should be granted. It must be pointed out that section 4 of CPLR 308 is relatively the same as R. 4:4--4(i) of the New Jersey rules. Applying to this case the four elements set forth in Keller v. Rappoport and cited in Rudikoff v. Byrne, the following consequences appear.

First, it is obvious that plaintiffs' cause of action would never be finally adjudicated if substituted service is not allowed. Plaintiffs cannot recover from the Unsatisfied Claim and Judgment Fund since the vehicle was insured. N.J.S.A. 39:6--70(f).

Second, the public interest is best protected by discouraging evasion of service, either deliberate or inadvertent. The case of Carlin v. Schuler, Supra, demonstrates...