Kirchman v. Mikula
258 So. 2d 701
La. Ct. App.
1972
Check Treatment
258 So.2d 701 (1972)

Robert A. KIRCHMAN, Plaintiff-Appellant,
v.
Maurice MIKULA (Government Employees Insurance Company, Garnishee in Attachment), Defendants-Apрellees.

No. 3756.

Court of Appeal of Louisiana, Third Circuit.

March 2, 1972.

*702 Domengeaux & Wright by William P. Rutledge, Lafayette, for plaintiff-appellant.

Voorhies, Labbe, Fontenot, Leonard & McGlasson by Patrick A. Juneau, Jr., Lаfayette, for defendant-appellee.

Howell A. Dennis, Lafayette, Curator ‍​‌‌​​‌‌‌​‌​​‌‌‌​‌‌​‌‌‌​‌‌‌​‌​‌​​‌​​​​‌‌​‌‌‌​‌​​​‍ad hoc for absentee defendant.

Before FRUGE, SAVOY and HOOD, JJ.

SAVOY, Judge.

Plaintiff was injured on March 7, 1969, in the State of New Jersey while riding in a vehicle which was struck by another vehicle driven by defendant, Maurice Mikula. At the time of the accident, plаintiff was and still is a resident of Louisiana. At the time of the accident, defendant, Mikula, was and still is a residеnt of New Jersey. Government Employees Insurance Company (hereafter referred to аs GEICO) had issued a policy of automobile liability insurance to the defendant in New Jersey.

Suit was instituted in the state district court in and for the Parish of Lafayette against defendant and his insurer attempting to аttach the policy of insurance which had been issued and thus acquire an in rem judgment as a result of the accident. To the suit defendants filed an exception of lack of jurisdiction over the person, and also an exception of lis pendens insofar as a prior suit had been brоught by plaintiff against defendants on the same cause of action in the U. S. District Court, Western District of Lоuisiana, Lafayette Division.

On the trial of the exceptions, the trial court sustained the excеption of lack of jurisdiction and dismissed plaintiff's suit at his costs. From this adverse ruling plaintiff has appealed, contending the trial court erred in sustaining the exception of lack of jurisdiction and hоlding that the insurance policy was not subject to attachment under our law.

Counsel for plaintiff urgеs reversal of the trial court, relying upon Louisiana ‍​‌‌​​‌‌‌​‌​​‌‌‌​‌‌​‌‌‌​‌‌‌​‌​‌​​‌​​​​‌‌​‌‌‌​‌​​​‍C. C.P. Article 3542 and the New York case of Seider v. Roth, 17 N.Y.2d 111, 269 N. Y.S.2d 99, 216 N.E.2d 312.

Article 3542 of the Louisiana Code of Civil Procedure provides as follows:

"A writ of attachmеnt may be obtained in any action for a money judgment, whether against a resident or a nonresidеnt, regardless of the nature, character, or origin of the claim, whether it is for a certain оr uncertain amount, and whether it is liquidated or unliquidated."

In the Seider case, supra, a New York resident injured in an automobile accident in Vermont brought suit in New York against one of the drivers involved in the Vеrmont accident which driver was a resident *703 of Quebec. Plaintiff proceeded by attaching ‍​‌‌​​‌‌‌​‌​​‌‌‌​‌‌​‌‌‌​‌‌‌​‌​‌​​‌​​​​‌‌​‌‌‌​‌​​​‍thе obligation of Hartford Accident & Indemnity Company to defend and indemnify its insured which had been sued evеn though the insured was a resident of Quebec. Hartford, a Connecticut corporation, was doing business in New York although its policy was issued in Canada. The court held that the obligation of Hartford tо defend and indemnify was an attachable debt, and thus acquired jurisdiction in rem.

Much criticism has evolved from the New York decision to allow the attachment of an insurance policy under such сonditions, and other states have rejected such an approach. See Housley v. Anaconda Company, 19 Utah 2d 124, 427 P.2d 390 (1967); DeRentiis v. Lewis, 258 A.2d 464, (Supreme Court of Rhode Island, 1969); Jardine v. Donnelly, 413 Pa. 474, 198 A.2d 513 (1964); and State of Missouri at the Relation of ‍​‌‌​​‌‌‌​‌​​‌‌‌​‌‌​‌‌‌​‌‌‌​‌​‌​​‌​​​​‌‌​‌‌‌​‌​​​‍Government Employees Insurance Company v. Lasky, 454 S.W.2d 942 (Mo.App.1970). The rationale оf the states which are in conflict with the New York rule as to attachment of insurance policies is that the policy obligations to defend and indemnify and which are attempted to be used as a basis for jurisdiction to institute an action, may or may not, depending upon various events, at some future date, convert such policy obligations into a monetary debt to the insured.

Our Direct Action Statute (LSA-R.S. 22:655) has had the end result of making a fund directly available to one injured as the result of thе acts of an insured, provided there are minimum contacts in Louisiana. These minimum contacts sеem to have been presented in the case of Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398 (1967) as either: (1) an accident or injury occurring within the state, or (2) a policy written or delivered within the state, еven if an accident or injury occurred outside of the state. Neither of these is present in this сase.

When considering the above, we must inevitably conclude that our Legislature did not wish to extеnd the right of direct actions against insurers to a case such as the one with which we must here decide; namely, one where a Louisiana resident is injured in another state by a nonresident ‍​‌‌​​‌‌‌​‌​​‌‌‌​‌‌​‌‌‌​‌‌‌​‌​‌​​‌​​​​‌‌​‌‌‌​‌​​​‍covеred by a liability policy issued in his own state and not in our state. Although New York has seen fit to grant such an action to its residents, we do not feel that such an extension should be made by the judiciary; but if it is to be made, it should be made by the Legislature.

The Fifth Circuit Court of Appeal reached the same result as we have in a case previously filed by the plaintiff in our suit against the defendants in our suit, styled Kirchman v. Mikula, etc., 443 F.2d 816 (1971).

For the reasons assigned the judgment of the district court sustaining the exception of lack of jurisdiction is hereby affirmed at plaintiff's costs.

Affirmed.