ReMine ex rel. Liley v. District Court for City and County of Denver

• Decision Date: 09 December 1985
• Docket Number: No. 85SA75,85SA75
• Parties: William H. ReMINE ex rel. Leeman Lee LILEY, Petitioner, v. The DISTRICT COURT FOR the CITY AND COUNTY OF DENVER, and the Honorable Alvin D. Lichtenstein, one of the judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 1379

709 P.2d 1379

William H. ReMINE ex rel. Leeman Lee LILEY, Petitioner, v. The DISTRICT COURT FOR the CITY AND COUNTY OF DENVER, and the Honorable Alvin D. Lichtenstein, one of the

judges thereof, Respondents.

No. 85SA75.

Supreme Court of Colorado,

En Banc.

Dec. 9, 1985.

Montgomery Little Young Campbell & McGrew, P.C. William H. ReMine, III, Englewood, for petitioner.

Ozer, Spriggs & Trueax, P.C., Robert C. Ozer, Denver, for respondents.

LOHR, Justice.

In this original proceeding, we issued a rule to show cause directing the respondent district court ¹ to demonstrate why it did not err in rejecting the challenges raised by Leeman Lee Liley, a defendant in a personal injury action, to the court's jurisdiction over his person. We conclude that the purported service of process upon Liley by publication pursuant to court order was legally ineffective because, under the facts of this case, such service was not authorized by statute or court rule. Consequently, we make the rule absolute.

I.

Grace Marie Vialpando and Ishmael Daniel Vialpando (plaintiffs) brought an action against Leeman Lee Liley (defendant) in Denver District Court, seeking damages for injuries sustained as a result of a collision between an automobile driven by Liley and a car in which the Vialpandos were traveling. The plaintiffs attempted to obtain service of process upon Liley personally but were unsuccessful in their efforts to locate him.

The Vialpandos then filed a verified motion for an order for service by publication pursuant to C.R.C.P. 4(h). In that motion they alleged that they had repeatedly and unsuccessfully attempted to serve the summons and complaint on Liley in Colorado at his place of residence as listed on the accident report and at his place of business as disclosed by his "insurance carrier." They also stated in the motion that in the course of efforts to serve the defendant in Colorado, the plaintiffs had been informed that Liley had moved to an address in Racine, Wisconsin. The Vialpandos averred that repeated attempts to serve the defendant at the Wisconsin address also had been unavailing and that the sheriff of Racine County had informed them that Liley had moved and left no forwarding address. The plaintiffs stated that Liley's whereabouts were unknown and that he could not be served personally in Colorado or elsewhere. The Vialpandos also averred that they had been contacted by a representative of Underwriters Adjusting Company (Underwriters), with a specified mailing address in Aurora, Colorado, who stated that Underwriters "is the insurance carrier for Defendant and said Underwriters Adjusting Company is responsible for the defense of the case" on behalf of Liley.

The district court held an ex parte hearing, at which it reviewed the motion for service by publication and the supporting affidavit. Based on that review, the court ordered publication of the summons and also ordered counsel for the plaintiffs ² to mail a copy of the summons and complaint to Liley at his last known address as stated in the motion and to mail a copy of those documents to "the insurance carrier for the Defendant" at the address stated in the motion. Publication and mailing were accomplished in accordance with the order.

Liley appeared specially through an attorney and filed a motion to quash the service of process. Liley noted that C.R.C.P. 4(g) allows service by mail or publication "only in cases affecting specific property or status or other proceedings in rem" and argued that the personal injury action here is not included within any of these categories. The plaintiffs responded that the suit is an in rem proceeding affecting specific property, ³ namely, "the proceeds and the contractual obligation under the insurance policy Defendant had in effect at the time of the accident with Underwriters Adjusting Company which provided insurance coverage for exactly the type of occurrence which is the subject of this lawsuit."

Liley filed a reply brief answering the plaintiffs' legal arguments and appending an affidavit of an executive for Rural Mutual Insurance Company (Rural Mutual). The affidavit stated that the automobile driven by Liley at the time of the accident belonged to Melba J. Russo, ⁴ a Wisconsin resident. Rural Mutual insured the automobile by a policy issued in Russo's name. The affidavit further stated that Rural Mutual is licensed to write insurance in Wisconsin but not in Colorado and that Rural Mutual "has no funds" in Colorado. Finally, the affidavit stated that Underwriters was engaged by Rural Mutual to "represent them and to investigate the accident."

Also attached to the defendant's reply brief was the affidavit of an executive for Underwriters. This affidavit stated that Underwriters is "an independent adjusting firm engaged in investigating and, when appropriate, attempting to settle personal injury cases." The affidavit further stated that Underwriters is not an insurance company, does not write or underwrite insurance policies, controls no funds for the purpose of settling cases and is not responsible for the defense of any case.

The district court by written order denied the motion to quash without setting forth reasons. Liley then filed a motion to dismiss the complaint, with a supporting brief, arguing that the Vialpandos' personal injury action is not a type of proceeding for which the rule authorizes service by publication or mail and that the court's assertion of personal jurisdiction based on substituted service violates the defendant's right to due process of law. Therefore, the argument concluded, the case must be dismissed for lack of jurisdiction due to ineffective service.

The plaintiffs filed a brief in opposition to the motion to dismiss. In their brief, the plaintiffs included a new argument that the legislative purposes underlying the Colorado Auto Accident Reparations Act, sections 10-4-701 to -723, 4 C.R.S. (1973 & 1985 Supp.), and certain provisions of that act indicate a strong public policy to allow substituted service on a defendant in circumstances such as those present here. The plaintiffs further asserted in their brief that Liley willfully sought to avoid personal service, and, for that reason also, service by publication was authorized.

The district court denied the motion to dismiss, stating in its written order only that the "[d]efendant sought to avoid service of process." Liley then filed a petition in this court seeking an order prohibiting the district court from asserting jurisdiction over him. Liley predicated his request on the position that the purported service of process upon him by publication was not authorized. We issued an order and rule to show cause.

II.

Because the automobile accident occurred in Colorado, there is no doubt that the district court has subject matter jurisdiction over this lawsuit, and that it has personal jurisdiction over the defendant Liley if proper service has been effected upon him. See § 13-1-124(1)(b), 6 C.R.S. (1973). Service of process upon any person subject to the jurisdiction of Colorado courts can be accomplished by personally serving the summons upon the defendant outside the state with the same effect as if the summons were so served within Colorado. § 13-1-125(1), 6 C.R.S. (1985 Supp.); C.R.C.P. 4(f). Substituted service by mail or publication is allowed "only in cases affecting specific property or status or other proceedings in rem." C.R.C.P. 4(g). Liley was served by publication. The issue, then, is whether the Vialpandos' personal injury suit against Liley is either a case "affecting specific property" or an "other proceeding in rem" for the purposes of the rule.

In analyzing this issue, we are guided by the principle that statutes or rules providing for substituted service are in derogation of common law and must be strictly construed and followed before jurisdiction over the person can be obtained in this manner. Carlson v. District Court, 116 Colo. 330, 342, 180 P.2d 525, 531 (1947). When a defendant files a motion to quash service of process, the plaintiffs have the burden of establishing all facts essential to jurisdiction. Harvel v. District Court, 166 Colo. 520, 523, 444 P.2d 629, 631 (1968).

The Colorado Rules of Civil Procedure do not define the terms "cases affecting specific property" or "other proceedings in rem." In its strictest sense, an in rem proceeding is an action initiated "against the thing," that is, against property of some sort in contrast to an action against a person. Black's Law Dictionary 713 (5th ed.1979). In modern jurisprudence, however, the term is employed to encompass any action brought against a person in which the essential purpose of the suit is to determine title to or affect interests in property located within the territory over which the court has jurisdiction. This type of in rem action is a case affecting specific property. See Hoff v. Armbruster, 125 Colo. 324, 327-29, 244 P.2d 1069, 1071-72 (1952). Typical in rem actions of this sort include actions to quiet title or to...