Krueger v. Williams

300 N.W.2d 910, 410 Mich. 144
CourtMichigan Supreme Court
DecidedJune 22, 1981
DocketDocket Nos. 59743, 61861. (Calendar Nos. 2, 3)
StatusPublished
Cited by51 cases

This text of 300 N.W.2d 910 (Krueger v. Williams) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Krueger v. Williams, 300 N.W.2d 910, 410 Mich. 144 (Mich. 1981).

Opinions

Fitzgerald, J.

We are asked to construe GCR 1963, 105.8. In the Krueger case, we must decide whether the rule will permit substituted service of process upon a defendant’s liability insurer. In the Rodgers case, we must determine if this rule au[153]*153thorizes service of process by publication to obtain personal jurisdiction over a defendant.

I

In Krueger v Williams, plaintiff and defendant were involved in an automobile accident. At the time, both parties were insured by the Detroit Automobile Inter-Insurance Exchange (hereafter DAIIE). Plaintiff attempted to negotiate a settlement with DAIIE. When resolution became impossible, approximately six months before the statute of limitations was to run, plaintiff filed suit against Alice Williams, who at the time of the accident was apparently a resident of Grand Rapids.

After the complaint was filed, plaintiff tried to locate the defendant. An investigator was hired but all attempts to find Alice Williams were unsuccessful.

Four months after the complaint was filed, a copy of the summons and complaint were sent by registered mail, return receipt requested, to the defendant’s last known address in Arkansas. These were returned unopened with the notation "Moved —left no address.” Copies were also served upon the Secretary of State, Non-Resident Section, and defendant’s liability insurance carrier. The summons, complaint, affidavit and proof of service were mailed to the DAIIE office in Grand Rapids. The attorney for the insurance company entered a special appearance, challenging the circuit court’s jurisdiction since no personal service was made on Alice Williams.

Plaintiff then filed a motion pursuant to GCR 1963, 105.8, to allow substituted service upon defendant by service of process on the liability carrier. Following hearings on the motion, this form [154]*154of substituted service was denied. The circuit court also granted defendant’s application for a writ of mandamus dismissing the cause of action. The Court of Appeals agreed that the method of substituted service was inadequate. We granted leave to appeal, directing the parties to address the issue of whether the trial court erred by refusing to allow plaintiff substituted service of process upon the defendant’s liability insurer.

In Rodgers, plaintiffs were passengers on a city bus when a police car chasing a vehicle went through a stop sign and collided with the bus. The plaintiffs sustained injuries and filed a complaint naming various officials as defendants and alleging that the driver and/or owner of the car was unknown. After the plaintiffs learned that the owners of the automobile were Fanny Mae and Willie Davis, and that the driver was either Louis Scott or Paul Hines, a motion was made and granted to amend the complaint and add these four persons as defendants. Shortly thereafter, plaintiffs filed a motion for substituted service by mail and publication stating that following diligent attempts by their office staff and outside investigative agencies, they had been unable to locate the added defendants.1 This motion was granted.2 The added defendants failed to appear and a default judgment was entered against Fanny Mae Davis, Willie Davis, Louis Scott and Paul Hines._

[155]*155Plaintiffs then filed an affidavit for garnishment against the Detroit Automobile Inter-Insurance Exchange which had a policy of insurance in effect on the named insured Willie Davis and on Louis Scott. DAIIE moved to vacate the default and dismiss the garnishment on the grounds that personal jurisdiction was never obtained over the principal added defendants and that the order for substituted service was improperly granted because it was not calculated to give actual notice of the proceedings. This motion was denied.

The trial of garnishee liability resulted in judgment for the plaintiffs. The court found that the insurance company had adequate notice of the case well before the default judgment was taken and had failed to sustain the burden of proving that it was prejudiced. The Court of Appeals affirmed in an unpublished per curiam opinion.3 Rehearing in the Court of Appeals was denied. We granted leave to appeal, directing the parties to include among the issues to be briefed whether the trial court erred in finding that GCR 1963, 105.8, authorizes service of process by publication to obtain personal jurisdiction as a means reasonably calculated to give actual notice of the proceedings and an opportunity to be heard and whether the [156]*156trial court, when considering the prerequisites for substituted service when personal jurisdiction is required, erred by not requiring an appropriate affidavit in support to show diligent inquiry.

II

GCR 1963, 105.8 reads:

"Discretion of the Court. The court in which an action has been commenced may, in its discretion, allow service of process to be made upon a defendant in any other manner which is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard, if an order permitting such service is entered before service of process is made upon showing to the court that service of process cannot reasonably be made in the manner provided for under other rules.”

Service of process is defined as:

"[T]he giving of such actual or constructive notice of a suit or other legal proceeding to defendant as makes him a party thereto, and compels him to appear or suffer judgment by default; and 'service’ in this connection means the execution of process or the particular act of the officer by which the copy of the citation was communicated.” 72 CJS, Process, § 25, pp 1022-1023.

Service may be made personally on a defendant or, if this is not possible, constructive service is permitted. Our court rules provide various methods to achieve substituted service. The Legislature has recognized that these rules must be drawn so as to be applicable to a wide variety of facts. The inherent limit is the requirement that the means chosen be reasonably expected to give notice of the pendency of the action. GCR 1963, 105.8, recognizes this by allowing service in any manner as [157]*157long as it can be shown to the court that other, more traditional, modes are unavailable.

The committee notes to rule 105.8 read:

"This provision is included to give the court discretion to allow service of process to be made in a manner which satisfies the language of Milliken v Meyer, 311 US 457; 61 S Ct 339; 85 L Ed 278; 132 ALR 1357 [1940], rehearing denied 312 US 712; 61 S Ct 548; 85 L Ed 1143 [1941], i.e., a method 'reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard.’
"The state of the law seldom remains static for very long, and particularly in the field of service of process, change has been occurring rapidly.

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Bluebook (online)
300 N.W.2d 910, 410 Mich. 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krueger-v-williams-mich-1981.