Parris v. Garner Commercial Disposal, Inc.
Decision Date | 20 March 1979 |
Docket Number | No. 7819SC416,7819SC416 |
Parties | Ruby Buie PARRIS v. GARNER COMMERCIAL DISPOSAL, INC., William D. King, and Aetna Life and Casualty Company, Inc. |
Court | North Carolina Court of Appeals |
Burke, Donaldson & Holshouser, by Arthur J. Donaldson, Salisbury, for plaintiff appellant.
Jones, Hewson & Woolard, by Harry C. Hewson, Charlotte, for defendant appellee Aetna Life and Cas. Co., Inc.
Plaintiff contends that the trial court committed error in dismissing his complaint against defendant Aetna Life and Casualty Company, Inc. We agree with plaintiff.
Assuming Arguendo that plaintiff's original service of summons on defendant was pursuant to G.S. 58-153 or G.S. 58-153.1, such service would be defective. To serve legal process under G.S. 58-153, an insurance company must be licensed or admitted and authorized to do business in this State. See G.S. 58-153.
G.S. 58-153.1(a) allows service of process on insurance companies subject to our courts' jurisdiction in suits by or on behalf of Insured or Beneficiaries under insurance contracts. See G.S. 58-153.1(a). Since neither circumstance prevails here, service of summons upon John Ingram, Commissioner of Insurance, as defendant's statutory process agent pursuant to G.S. 58-153 or G.S. 58-153.1(a), is ineffective. However, plaintiff's service of process by serving the alias and pluries summons on defendant was an effective service of summons.
G.S. 1A-1, Rule 4(d)(2) allows for the issuance of alias and pluries summons in the same manner as the original summons. Issuance of the original summons is to be in accordance with G.S. 1A-1, Rule 4(b).
G.S. 1A-1, Rule 4(b) provides:
The summons in question provides:
The summons was directed to:
In Wiles v. Construction Co., 295 N.C. 81, 84, 243 S.E.2d 756, 758 (1978), our Supreme Court held a similarly directed service of summons a sufficient service of process:
The Court further noted:
"(W)e feel that the better rule in cases such as this is that when the name of the defendant is sufficiently stated in the caption of the summons and in the complaint, such that it is clear that the corporation, rather than the officer or agent receiving service, is the entity being sued, the summons, when properly served upon an officer, director or agent specified in N.C.R.Civ.P. 4(j)(6), is adequate to bring the corporate defendant within the trial court's jurisdiction." (Citations omitted.)
Id. at 85, 243 S.E.2d at 758 (1978).
The record shows that defendant's statutory agent for service of process in Connecticut was served with a copy of the summons. We hold that service of process was sufficient in this case to apprise defendant that it was the party being sued. Thus, if the court had jurisdiction over the defendant, the service of process was sufficient under G.S. 1-A, Rule 4(j)(6).
The absence of proof of return on defendant's copy did not affect the validity of the service of process. The sheriff's return showing service was Prima facie proof of service, Harrington v. Rice, 245 N.C. 640, 97 S.E.2d 239 (1957), and Lumber Co. v. Sewing Machine Corp., 233 N.C. 407, 64 S.E.2d 415 (1951), and placed the burden on the party claiming that service had not in fact been made to repel the Prima facie case. Tyndall v. Homes, 264 N.C. 467, 142 S.E.2d 21 (1965); 10 Strong's Index 3d, Process, § 4, p. 395. It is the service of process and not the return of the officer which confers jurisdiction on the court. 10 Strong's Index 3d, Process, § 4, pp. 395-96.
The resolution of the question of In personam jurisdiction involves a two-fold determination: (1) do the statutes of North Carolina permit the courts of the jurisdiction to entertain this action against defendant, and (2) does the exercise of this power by the North Carolina courts violate due process of law. Dillon v. Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977).
The grounds on which a court may assert personal jurisdiction over a person are set forth in G.S. 1-75.4.
G.S. 1-75.4(1)(d) provides:
" § 1-75.4. Personal jurisdiction, grounds for generally. A court of this State having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to Rule 4(j) of the Rules of Civil Procedure under any of the following circumstances:
(1) Local Presence or Status. In any action, whether the claim arises within or without this State, in which a claim is asserted against a party who when service of process is made upon such party:
d. Is engaged in substantial activity within this State, whether such activity is wholly interstate, intrastate, or otherwise."
In the enactment of G.S. 1-75.4(1)(d), our Legislature intended to make available to our courts the full jurisdictional powers permissible under federal due process. Dillon v. Funding Corp., supra. Thus, the essential question is: Does the exercise of In personam jurisdiction in the present case comport with due process? We answer, "Yes."
Due process requires only that in order to subject a defendant to a judgment In personam, if he be not present within the territory of the forum, that he have certain minimal contacts with it such that the maintenance of the suit does not offend the "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945); Dillon v. Funding Corp., supra ; Chadbourn, Inc. v. Katz, 285 N.C. 700, 208 S.E.2d 676 (1974).
Application of the minimum contacts rule varies with the quality and nature of defendant's activities, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Chadbourn, Inc. v. Katz, supra ; Swenson v. Thibaut, 39 N.C.App. 77, 250 S.E.2d 279 (1978).
The existence of minimal contacts is a question of fact. Chadbourn, Inc. v. Katz, supra. Here, the evidence shows: that defendant was listed in telephone directories in various North Carolina cities; that the directories indicated a toll-free number to call in Hartford, Connecticut in the event of an accident; that the directories indicated general agents to contact within various North Carolina cities; that defendant or its agent had sent a letter to plaintiff's counsel regarding renewal of a term insurance policy; and that an insurance policy was mailed to Daphne Weems in an envelope bearing defendant's trademark and a note was attached informing her to call defendant for immediate help in the event of an accident. These contacts are not "De minimis." We hold that...
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