Grinnell v. GarrettGrinnell v. Garrett
- Reporters:
- Before:
- Hood, Culpepper, Miller
Plaintiffs William and Roma Grinnell, husband and wife, and thеir insurer Providence Washington Insurance Company appeal the trial court‘s judgment maintaining exceptions of lack of personal jurisdiction and insufficiency of service of process filed by non-resident defendants Danny Garrett, The Arkay Company, Inc., and the Arkay Faithway Feed Company, Inc.1 We affirm.
Plaintiffs’ petition alleges that on April 26, 1972, the Grinnells were rearended in Scott County, Mississippi, by a truck driven by Garrett and owned by Arkay and/or Arkay Faithway. The Grinnells suffered personal injuries and the loss of their pickup truck, a trailer, and a prefabricated building which was cargo in the trailer. The pickup truck was insured by plaintiff Providence, which paid William Grinnell the loss and claims subrogation rights in this suit. Southern Structures, Inc., intervened, seeking damages for loss of the building.
It was stipulated that Canal Insurance Company is registered and qualified to do business in Louisiana, and has appointed the Secretary of State as agent for service
In order to obtain jurisdiction, plaintiffs obtained a writ of attachment by garnishment against the property of the Arkay Companies in the hands of Canal, namely, the insurance policy and coverage afforded them by Canal. Canal moved to dissolve the writ on the basis that the policy was issued outside Louisiana and was not subject to attachment. An exception of lack of jurisdiction over the person of defendants and insufficiency of service of process was filed on behalf of all defendants.
The trial judge maintained the exceptions on finding Kirchman v. Mikula, 258 So.2d 701 (La.App. 3 Cir. 1972) squarely on point.
Kirchman involved an accident in New Jersey in which a Louisiana residеnt was injured. Mikula was a New Jersey resident, insured by GEICO pursuant to a policy issued in New Jersey. Suit was filed in Lafayette against Mikula and his insurer. Personal jurisdiction wаs predicated upon attachment of the policy of insurance. We rejected that attempt to get jurisdiction.
The only significant difference in this case and Kirchman was the failure of these plaintiffs to join the insurer as a party defendant. Plaintiffs urge that we reverse our previous pronouncement, but list few factors to suppоrt their position.
Plaintiffs emphasize the broad scope and nature of
The serious constitutional implications arising from use of such a procedure further suppоrt our conclusion. The only connections Louisiana has with the accident are the injuries to its citizens and the presence of Canal, а non-defendant, doing business in Louisiana. The use of our attachment statute to gain jurisdiction over the named defendants where no such jurisdiction could exist through operation of either the Direct Action Statute (
Plaintiffs additionally assert the inconvenience they would suffer by having to sue in another state. We conclude that neither the status of plaintiffs alone nor the inconvenience suffered by them can serve as a basis for the exercise of оur jurisdiction. Fundamental due process requirements are phrased in terms of fairness
In addition to the New York cases which we chose not to follow in Kirchman, plaintiffs cite Campbell v. Davis, 274 Ala. 187, 145 So.2d 725 (1962), and Milmoe v. Toomey, 123 U.S.App.D.C. 40, 356 F.2d 793 (1966), as authority for their position. The Alabama case did hold that a deceased insured‘s potential right of recovery constituted prоperty; property which presumably was subject to attachment. That case, however, involved an accident which occurred in Alabаma. Personal jurisdiction was not the central issue, it being whether or not the administration of a non-resident‘s estate could be opened in a сounty where the deceased owned no assets other than the obligation existing under the liability insurance policy. Had the accident in the instаnt case occurred in Louisiana, we would have no problem finding a basis for exercising personal jurisdiction under our non-resident motorist‘s statute (
The only real difference between the instant case and Kirchman is the absence of the insurer as a defendant. We fail to see how an insurer who would not be amenable to a cause of action under our direct action statute could be used as garnishee in order to obtain jurisdiction over citizens of another state who have no contacts with Louisiana. The direct action statute was given its widest latitude in Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398 (1967). It held that the direct action statute extended to accidents occurring within the state or to policiеs written within the state, even if the accident occurred out of state. Neither test is met here. Plaintiffs thus attempt to do indirectly by not naming defendants’ insurеr what it could not achieve by direct action.
The trial court judgment is affirmed. All costs of appeal are taxed to plaintiffs appellants.
Affirmed.