Young v. Bunny Bazaar, Inc.

• Decision Date: 18 September 1969
• Citation: 107 N.J.Super. 320,258 A.2d 158
• Parties: Frances YOUNG and Kenneth E. Young, Plaintiffs, v. BUNNY BAZAAR, INC. and Gary Hughes, Defendants.
• Court: New Jersey Superior Court

Page 320

107 N.J.Super. 320

258 A.2d 158

Frances YOUNG and Kenneth E. Young, Plaintiffs, v. BUNNY BAZAAR, INC. and Gary Hughes, Defendants.

Superior Court of New Jersey Law Division.

Sept. 18, 1969.

Foster C. Ergood, Camden, for plaintiffs (Asbell & Ambrose, Camden, attorneys).

G. Wesley Manuel, Jr., Camden, for defendants (Kisselman, Devine, Deighan & Montano, Camden, attorneys).

BELOPOLSKY, J.C.C. (temporarily assigned).

This matter came before the court on motion of the attorney for defendants to dismiss plaintiffs' complaint pursuant to R.R. 4:12--2 (now R. 4:6--2) because of the lack of jurisdiction over the person of defendants due to insufficiency of service of process.

The case arises out of an accident which occurred on July 8, 1966. The complaint was filed on July 2, 1968. On July 11, 1968 summons was issued and served upon the New Jersey Director of the Division of Motor Vehicles pursuant to N.J.S.A. 39:7--1 et seq. because both defendants were nonresidents of the State of New Jersey. However, the certified mail sent by the Director of Motor Vehicles to defendants was returned marked 'unknown' for one defendant and 'unclaimed' for the other. On September 6, 1968 service pursuant to N.J.S.A. 39:7--3(c) was initiated and proved to be similarly unsuccessful. Numerous other attempts by plaintiff to locate either defendant also proved futile.

On February 17, 1969 plaintiff directed a letter to Crawford & Company, the insurance adjusting firm for defendant Bazaar's insurance carrier. A copy of the summons and complaint was enclosed for Crawford and Company's perusal. Settlement negotations were then entered into with the adjusting firm and continued up until the time of this motion. On April 25, 1969 a motion to dismiss for lack of prosecution was denied. On May 16, 1969 the sheriff of Philadelphia County, Philadelphia, Pennsylvania, served the summons and complaint on George Chapman of Crawford and Company, allegedly pursuant to R.R. 4:4--4(j) and 4:4--5(a) (now R. 4:4--4(e) and R. 4:4--5(a)). On August 1, 1969 Crawford and Company moved under R.R. 4:14--2 (now R. 4:8--2) to dismiss the complaint for lack of jurisdiction over the person of defendants due to insufficiency of service of process. Plaintiff, in opposing the motion, relies on Rudikoff v. Byrne, 101 N.J.Super. 29, 242 A.2d 880 (Law Div.1968). In that case defendant, a New York resident, moved without notifying the New York Department of Motor Vehicles of his new address, as required by New York law. After similar diligent efforts to locate defendant were unsuccessful, service was made upon defendant's insurance carrier by registered mail sent to the carrier's New York office.

The court found service insufficient on two grounds. First, R.R. 4:4--4(j) had not been complied with because 'a copy of the summons and complaint was not sent to Byrne 'addressed to his dwelling house or usual place of abode." 101 N.J.Super., at 34, 242 A.2d, at 883. Secondly, the court found that R.R. 4:4--5(a) had not been satisfied because service was not made by any of the persons described in the rule. Id., at 36, 242 A.2d 880.

However, the court felt that justice dictated that plaintiff should not be deprived of his right to prosecute the action, especially since it was defendant's own breach of a legal duty which caused the difficulty in service. On grounds of equitable estoppel and the demands of justice, the court allowed plaintiff to serve process again, this time complying with the rules.

This left the question of whether service upon the insurance carrier could be made under New Jersey law and consistent with due process.

Rule R.R. 4:4--4(j) (now R. 4:4--4(e)) reads

* * * where service is attempted to be made by registered mail but the same is not effected * * * 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)

The court found that under New York law, specifically, Keller v. Rappoport, 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451 (Ct.App.1968), service could be made 'by mailing a copy of the summons and complaint to the defendant's last-known address, and (2) by delivering copies thereof to the defendant's insurance carrier.' 101 N.J.Super., at 36, 242 A.2d, at 884. Thus R.R. 4:4--4(j) was satisfied. The court did not decide whether such service would be authorized solely by New Jersey law in the absence of the New York decisions.

The court also found that the New York procedure was consistent with due process. In Keller the court relied on Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), wherein the Supreme Court said "it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits' and does not render the service unconstitutional.' 289 N.Y.S.2d, at 171, 236 N.E.2d, at 458, quoting 339 U.S., at 317, 70 S.Ct., at 658.

In Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956), the Supreme Court, in commenting on Mullane, said

That case establishes the rule that, if feasible, notice must be reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests. We there called attention to the impossibility of setting up a rigid formula as to the kind of notice that must be given; notice required will vary with the circumstances and conditions. We recognized that in some cases it might not be reasonably possible to give personal notice, for example, when people are missing or unknown. (289 N.Y.S.2d, at 171, 236 N.E.2d, at 458, quoting 352 U.S., at 115, 77 S.Ct., at 202.)

The Keller court then noted four factors that go into a decision of what kind of notice will be constitutionally adequate in a given situation: (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 Rudikoff the New Jersey Supreme Court approved of this analysis and found the elements satisfied in that case.

On the issue of plaintiff's need, the court in Keller quoted from Olberding v. Illinois Cent. R.R. Co., 346 U.S. 338, 341, 74 S.Ct. 83, 98 L.Ed. 39, that "The potentialities of damage by a motorist, in a population as mobile as ours' are so widespread 'that those whom he injures must have opportunities of redress against him provided only that he is afforded an opportunity to defend himself." 289 N.Y.S.2d, at 172, 236 N.E.2d, at 459. That statement was made in 1953. The vast increase in the use of the automobile and in accidents arising out of that use only reinforce its applicability today.

The public interest of New Jersey is apparent. New Jersey compels nonresidents to remain subject to suit here by the use of N.J.S.A. 39:7--1 et seq., and reliance on the driver's address as registered in his own state. Also there is a policy to provide a source of recovery for injured plaintiffs by recourse to the Unsatisfied Claim and Judgment Fund.

On the question of plaintiff's efforts to inform defendant, the court in Keller said it could not 'ignore the fact that it was no lack of diligence on the plaintiffs' part but, rather, the conduct of the defendants themselves, their removal without informing anyone of their...