Moore v. Montes

• Decision Date: 17 December 1974
• Docket Number: CA-CIV,No. 1,1
• Citation: 529 P.2d 716,22 Ariz.App. 562
• Parties: J. William MOORE, Administrator of the Estate of Alejandro Tovar, Deceased, Appellant, v. Maria Eliza MONTES and Ernesto Montes, her husband, Appellees. 2218.
• Court: Arizona Court of Appeals

Page 716

529 P.2d 716

22 Ariz.App. 562

J. William MOORE, Administrator of the Estate of Alejandro Tovar, Deceased, Appellant, v. Maria Eliza MONTES and Ernesto Montes, her husband, Appellees.

No. 1 CA-CIV 2218.

Court of Appeals of Arizona, Division 1, Department C.

Dec. 17, 1974.

Rehearing Denied Jan. 13, 1975.

Review Denied Feb. 11, 1975.

Jennings, Strouss & Salmon by William T. Birmingham, M. Byron Lewis, Phoenix, for appellant

Rawlins, Ellis, Burrus & Kiewit by Norman D. Hall, Jr., Michael V. Mulchay, Phoenix, for appellees.

OPINION

NELSON, Judge.

This is an appeal from a judgment entered by the trial court, sitting without a jury, awarding the sum of $25,000 as damages for personal injuries received in a one-vehicle accident approximately 58 miles south of the Arizona Border in Mexico by the appellees, Maria Eliza Montes and Ernesto Montes, husband and wife (Monteses). The judgment was entered against appellant, J. William Moore (Moore), in his capacity as the administrator of the estate of Alejandro Tovar (Tovar), the driver of the car involved in the accident who died of injuries as a result thereof.

Except for the testimony of two expert witnesses who presented some differing points of view on aspects of Mexican law as it might be applied to the facts of this case (See APPLICABLE LAW, infra), the matter was decided by the trial court on stipulated facts. There were two central questions presented to the trial court for decision which must also be resolved here. Initially, we must decide whether there is jurisdiction in the courts of Arizona to resolve this matter, both as to the establishment of Tovar's estate, for purposes of administration, and the awarding of a judgment against the estate and in favor of Montes. Secondly, if there is jurisdiction in the Arizona courts, should the substantive law of Arizona or that of Sonora, Mexico, be applied? The trial court found adequate jurisdiction both to establish an administration of Tovar's estate in Arizona and to allow the suit for personal injuries against that estate, to the extent of the value of its lone asset, a $25,000 policy of insurance; and it applied Arizona law. We affirm the trial court's decision.

FACTS

On February 8, 1970, a single-car accident occurred in the state of Sonora, Mexico, approximately 58 miles south of the United States-Mexican Border. Alejandro Tovar, who was driving the car at the request of Ernesto Montes, was killed in the accident and Maria Eliza Montes was severely injured.

The trip originated in Somerton, Arizona, where the Monteses lived and where the car was regularly garaged. The car was licensed in Arizona and was covered by an insurance policy purchased by Maria Eliza Montes from a company licensed to do business in Arizona, but not in Mexico. The policy provided coverage for trips into Mexico for a distance up to 75 miles from the Border. The car was owned by Maria's mother, Mrs. Guadalupe Garcia Garibaz.

The purpose of this particular trip was for a one-day picnic at the Gulf of California. Prior to entering Mexico, the Monteses picked up three passengers, all residents of the United States. In San Luis, Mexico, they picked up Tovar, a resident and citizen of Mexico. They stopped to buy beer on the way and had begun to drink it prior to the accident. Tovar had consumed one can and was in the process of drinking another when the accident occurred. He lost control of the car on a curve while traveling at a high rate of speed, and the car overturned.

In May of 1971, a petition for letters of administration in the matter of the estate of Alejandro Tovar was filed in the Superior Court in Maricopa County, Arizona. The petition showed on its face that Tovar was a resident of San Luis, Mexico, at the time of his death. The petition alleged that Tovar left an estate in Phoenix, Arizona consisting of rights as a named insured under an automobile liability insurance policy issued to Maria Eliza Garcia (Montes), appellee here. The policy in question was in force at the time of the accident, provided coverage within 75 miles of the United States Border, and contained an omnibus clause which covered permissive users of the automobile.

Maria Eliza Montes filed a request for the appointment of administrator in the probate proceeding, alleging that she was a creditor of the deceased entitled to letters of administation, and that she was physically unable to undertake administration of the estate. Pursuant to her request, letters was issued to Moore in June of 1971.

In September of 1971, Montes sued Moore as administrator of the estate of Alejandro Tovar, deceased, to recover for personal injuries received in the accident on February 8, 1970. Although the complaint sought damages of $500,000, the parties stipulated that the maximum amount of recovery, if any, would be limited to the face amount of the insurance policy in question, which was $25,000 for injury to any one person.

Moore sought, without success, to have the cause dismissed on jurisdictional grounds in the trial court, this court by special action (1 CA-CIV 1901), and in the Supreme Court (10803-PR denied March 28, 1972). A review of all these proceedings indicates clearly that the jurisdictional question has been preserved and is now ripe for decision.

JURISDICTION

This court's decision in Ray v. Sommer, 14 Ariz.App. 160, 481 P.2d 530 (1971), has been cited to this court by both parties as highly persuasive authority in this case. We agree.

While the court in Ray, supra, upheld the trial court's dismissal of an automobile accident case where there were literally no contacts with the state of Arizona, the decision clearly points toward the acceptance of the almost unanimous view that a liability insurance policy will support letters of administration as to a non-resident in a state in which the insurance carrier, such as here, is licensed to do business, and where there are other significant contacts with the accident in question, as there are here. Ray v. Sommer, supra. We accordingly hold that where the plaintiff is a resident of Arizona and the insurance policy alleged to be an asset of the decedent's estate was purchased in Arizona from a company authorized to do business in Arizona, there exists a sufficient nexus with the state of Arizona to justify the administration of the decedent's estate for the limited purpose of establishing whether or not the plaintiff has a claim against this one asset, and, if such a claim is established, for collecting that claim. Clearly no more is possible and no more is contemplated.

The real party in interest here is not so much the estate of the decedent, Tovar, as it is the insurance carrier which is liable to exonerate a claim against Tovar's estate as a result of its policy of insurance covering him as a permissive driver of the car involved in the accident. The action is essentially in rem, A.R.S. § 14--302 ¹, and can be maintained against the administrator of the estate of the deceased tortfeasor A.R.S. § 14--477 ², to the extent of that estate found in Arizona. A.R.S. § 1--302 ³; In re Fagin's Estate, 246 Iowa 496, 66 N.W.2d 920 (1954). Although the decision in In re Fagin's Estate, supra, is some 20 years old, and the factual posture of the case somewhat different, the language of the Iowa court is very timely today:

'Finally, it should be remembered that proceedings such as are involved here, seeking the appointment of administrators, are not adversary nor personal. They are special proceedings in rem (citations omitted). The legality of the appointment is not dependent upon acquiring personal jurisdiction of any nonresident by personal or substituted service.

'The Iowa administrator has jurisdiction only of whatever property of the estate may be in Iowa. If it shall develop there is none, or that Pilger's have no enforceable claims, decedent's general estate represented by appellant will have suffered no loss. Nor will appellant and the estate he represents suffer any damage if the Pilger claims be established. Appellee (Iowa Administrator) will have recourse only against the Iowa property, viz., whatever insurance coverage decedent carried on his automobile subject to such claims. No one claims any other property is threatened.

'In ultimate effect appellant is not the real party in interest. The real party is the insurance company . . ..' 66 N.W.2d at 924. (emphasis added)

Certainly the claim against a decedent's estate does not have to be fully liquidated or proven before a creditor can seek administration. Cf. A.R.S. § 14--3803(C)(2) ⁴. The administrator, as well as the probate court, has a responsibility to approve only valid claims. See Cox v. Mackenzie, 70 Ariz. 308, 219 P.2d 1048 (1950). The claim herein was denied and then fully litigated by the real parties in interest. The trial court had jurisdiction both as to the establishment of the estate and as to the claim in question. Ray v. Sommer, supra; In re Fagin's Estate, supra.

APPLICABLE LAW

The applicable conflict of laws principles were enunciated and adopted by the Arizona Supreme Court in Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254, 29 A.L.R.3d 623 (1968). In adopting the contacts theory enunciated by the Restatement, Second, Conflict of Laws § 145 (renumbered from § 379 in tentative draft No. 9, as cited in Schwartz, supra, and as finally adopted on May 23, 1969, Restatement, Second, Conflict of Laws, appendix, page XLIII) our court made these sage comments after a full exposition of all the theories concerning choice of laws:

'Cognizant of the fact that we are charting paths through a developing area of the law, we have felt it necessary to make the foregoing extensive examination of the competing choice-of-law theories. We believe that of the three, The contacts theory offers the brightest prospects for a rational yet flexible approach to choice-of-law problems.' 103 Ariz. at 565, 447 P.2d at 257 (emphasis added).

The...