Rudikoff v. Byrne, L--19380

• Decision Date: 06 May 1968
• Docket Number: No. L--19380,L--19380
• Citation: 242 A.2d 880,101 N.J.Super. 29
• Parties: Ronald RUDIKOFF, Plaintiff, v. Edward J. BYRNE, Michael Foglio and Mary R. Foglio, individually, severally and jointly, Defendants.
• Court: New Jersey Superior Court

Page 29

101 N.J.Super. 29

242 A.2d 880

Ronald RUDIKOFF, Plaintiff, v. Edward J. BYRNE, Michael Foglio and Mary R. Foglio, individually, severally and jointly, Defendants.

No. L--19380.

Superior Court of New Jersey

Law Division.

May 6, 1968.

Allan J. Naishuler, Newark, for plaintiff (Greenstone & Greenstone, Newark, attorneys).

Joseph T. Ryan, Jersey City, for defendant Edward J. Byrne (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys).

LYNCH, J.S.C.

The novel issue raised here is whether, under the circumstances of this case, an insured nonresident automobile operator, involved in an accident in New Jersey, may be served with process by service upon his insurance carrier, by registered mail sent to the carrier at its New York office. Service upon defendant Byrne had been attempted by the typical method under the nonresident motorists statute, N.J.S.A. 39:7--1 et seq. However, when the Director of Motor Vehicles, pursuant to N.J.S.A. 39:7--3, forwarded the summons and complaint to the address of defendant listed on his New York driver's license and registration at the time of the accident, it was returned 'Unclaimed.' Defendant had moved from said address without advising the Department of Motor Vehicles of the State of New York of his change of address as required by New York Vehicle and Traffic Law, McKinney's Consol. Laws, c. 71, § 501(g). Despite diligent inquiry, defendant's whereabouts are unknown and plaintiff, conceiving he knew of no other way to effect service of process, served defendant's insurance carrier in the manner described above.

The accident out of which the suit arises occurred in Hoboken, New Jersey, on May 4, 1963, when an automobile driven by defendant Edward Byrne (Byrne), in which plaintiff and one John Evard were passengers, collided with a vehicle owned by defendant Mary R. Foglio and driven by defendant Michael Foglio. At the time of the accident Byrne resided at 5505--5th Avenue, Brooklyn, New York. This was the address which he gave to police at the scene and which appeared on his New York operator's license and registration certificate. It was at that address that Byrne was served by certified mail on March 7, 1964, under N.J.S.A. 39:7--3, in a suit started against him in this State by Mr. and Mrs. Foglio. It was also the address stated in the answer filed on Byrne's behalf in the Foglio suit by the same attorneys who now make the instant motion on his behalf.

For almost two years after the accident plaintiff's New York attorney, Edward Vogel, carried on settlement negotiations with Byrne's liability insurance carrier, Merchants Mutual Insurance Company. That same carrier has settled, on Byrne's behalf, the claims brought against him by the Foglios and the other passenger in his car, John Evard. In an affidavit filed in opposition to defendant's motion here, Vogel details the nature of the negotiations in his unsuccessful effort to settle the claim of the instant plaintiff, Rudikoff. They were typical of the ordinary dealings between a plaintiff's attorney and defendant's carrier. He dealt with one Mazzella, an adjuster, who advised him that the company file number on the case was 2--265318 and that he would receive a request from the carrier's doctors for a physical examination of plaintiff. Such examinations on the carrier's behalf were held on October 24 and November 26, 1963. Vogel had many discussions with Mazzella from June 1963 to December of that year when Mazzella requested a further physical examination of plaintiff by a specialist, Dr. J. A. Kapland, of New York City. That examination took place on January 25, 1964. Vogel also authorized Dr. Kapland to examine X-rays of plaintiff which were at the hospital where he had been treated and also others in the possession of plaintiff's physician. Attached to Vogel's affidavit herein are copies of letters dated April 20 and 28, May 1 and 5, July 17 and 27, 1964 relating to special damages, including medical expenses incurred, name of plaintiff's employer and wages lost as a result of the accident. Vogel continued to negotiate with Mazzella through the year 1964 and was then asked to deal with his supervisor, one Videlli. Finally, on January 12, 1965 Mazzella offered $2500 plus medical expenses in settlement. Vogel considered the offer insufficient and in February 1965 was advised that it would not be increased. Negotiations then discontinued.

During the period of the negotiations from June 1963 to February 1965, Vogel refrained from instituting suit on behalf of his client because, he avers, he was confident the case would be settled. He likewise felt that Byrne would remain available for service, under the Motor Vehicle Act of this State, at the same address at which he had acknowledged receipt of the summons and complaint in the case of Foglio v. Byrne. Under the impression that Byrne still resided at the said address, plaintiff's New Jersey attorney issued summons herein on May 10, 1965 and advised the Director of Motor Vehicles of this State that Byrne could be served there, with the abortive result described above. Thereafter, for almost two years, efforts to locate the whereabouts of Byrne proved unsuccessful.

In October 1967, knowing of no other method of serving Byrne, so it is said, process was sent by registered mail, return receipt requested, to Byrne in care of his insurance carrier. The carrier signed for same. Default having been entered against Byrne, the attorneys selected by the carrier and who represented Byrne in the Foglio suit, move to vacate the default and to set aside the purported service.

Defendant's sole argument is that R.R. 4:4--4 et seq. does not provide for service on an individual by sending a copy of the summons and complaint to his insurance company, as was done here. 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. Plaintiff, on the other hand, argues that because defendant had moved from the address given to the Motor Vehicle Department of New York without advising change of address, he should be estopped from objecting to the service here made.

Even if the court were to hold that defendant is estopped from denying the given address as his own, it does not follow that the kind of service here attempted is necessarily valid. There must be some provision of our rules which authorizes the service attempted. Carlin v. Schuler, 89 N.J.Super. 366, 215 A.2d 56 (Law Div.1965); Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 86 A.2d 201 (1952); Levitt v. Colonial Boat Works, Inc., 70 N.J.Super. 555, 176 A.2d 48 (Law Div.1961). Further, the service must be 'consistent with due process of law.' It is to these two questions that we direct our attention.

R.R. 4:4--4(j) was adopted in 1963. It reads as follows:

'(j) Whenever it shall appear by affidavit of the attorney for the plaintiff or of any person having knowledge of the facts, that, after diligent inquiry and effort, an individual cannot be served in this State under any of the preceding paragraphs of this rule, then, consistent with due process of law, service may be made by mailing, registered mail, return receipt requested, a copy of the summons and complaint to the individual addressed to his dwelling house or usual place of abode. Where service is attempted to be made by registered mail but the same is not effected, either by reason of the addressee refusing to accept delivery or if for any reason delivery cannot be made, then service may be made outside the State as provided in Rule 4:4--5(a) upon any person upon whom service is authorized by the law of this State or of the state wherein service is effected.'

It is clear, as appears by plaintiff's affidavits, that 'after diligent inquiry and effort' defendant Byrne could not be served in this State under any of the methods provided in the paragraphs of the rule preceding paragraph (j). But the method provided by the first sentence of the rule was not here complied with, for a copy of the summons and complaint was not sent to Byrne 'addressed to his dwelling house or usual place of abode.' R.R. 4:4--4(j) provides that when the attempt to serve by registered mail is unsuccessful nd for any reason delivery cannot be made, 'then service may be made outside the State as provided in Rule 4:4--5(a) Upon any person upon whom service is authorized by the law of this State Or of the state wherein service is effected.' (Emphasis added.) Service here was made in New York upon defendant's insurer. Was this a 'person upon whom service is authorized by the law' of the State of New York?

The question as to the validity of service upon an insured's carrier has received judicial attention in a series of cases in the State of New York, culminating in the recent decision of the Court of Appeals in the cases of Dobkin v. Chapman, Sellars v. Raye and KELLER V. RAPPOPORT, (21 N.Y.2ND 490, 289 N.Y.S.2D 161, 236 N.E.2D 451).¹ Prior to that decision such service had been valid under CPLR 308(4) in West v. Mannino (Sup.Ct.1967), Vol. 157 No. 64 N.Y.L.J., p. 21, col. 7; Keller v. Rappoport (Sup.Ct.1966), Vol. 155, No. 38 N.Y.L.J., p. 19, col. 5; Zuretti v. Cotto (Sup.Ct.1967), Vol. 157, No. 9 N.Y.L.J., p. 15, col. 7; Robles v. Yacano (Sup.Ct.1967), Vol. 157, No. 22 N.Y.L.J., p. 19, col. 7; and Lerman v. Church, 54 Misc.2d 402, 282 N.Y.S.2d 622 (Sup.Ct.1967).

In Zuretti and Robles, the courts, in sustaining the service, found significant the fact that the insurance carriers involved had undertaken investigations of the cases, had medical examinations of the plaintiff and carried on negotiations, and other facts from which it was obvious that the insurance company was 'aware of the accident all along.' However, in Winterstein v. Pollard, 50 Misc.2d 354, 270 N.Y.S.2d 525 (Sup.Ct.1966), the court refused to approve said service, holding that there was no...