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Proper Service of Process Over a Foreign Insurance Company in Missouri Through the Department of Insurance

Valid service of process is a prerequisite to personal jurisdiction, and failure to comply with legal requirements of process deprives the court of authority to adjudicate.  When a court enters a judgment when no valid personal jurisdiction has been obtained over the defendant, the judgment is void.

Service of process must conform to the manner and form established by law to invoke the court’s jurisdiction.  Rule 54.20 sets forth the proof that a plaintiff must show the court to establish that the proper method of service has been followed.  In the absence of proof of service, which is mandated by Rule 54.20, the court lacks the proof necessary to determine if the court has jurisdiction of the defendant.  In the absence of such proof, the court does not have jurisdiction over the defendant.  Id.

SERVICE OF PROCESS ON A FOREIGN INSURANCE COMPANY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF MISSOURI:  WHAT CONSTITUTES PROPER PROOF OF SERVICE THROUGH THE MISSOURI DEPARTMENT OF INSURANCE?

To establish the proof necessary to supply the circuit court with personal jurisdiction over a foreign insurance company authorized to conduct business in the State of Missouri, the requirements of Rule 54.15 and Rule 54.20(c) must be met.  Maddox v. State Auto Mut. Ins. Co., 356 S.W.3d 231 (Mo. App. E.D. 2011).  In Maddox, the Court affirmed the circuit court’s setting aside a previously entered default judgment against a foreign insurance company.  In Maddox, the plaintiff argued that the circuit court erred in setting aside the default judgment because the requirements of § 375.906 R.S.Mo. (2000) had been met.  The Court of Appeals in Maddox disagreed, finding that the requirements of Rules 54.15 and 54.20(c) must also be met.  Id. at 233-234.  The Court explained as follows:

Rule 54.15 supplements section 375.906 by additionally requiring the director to request a signed return receipt from the addressee when forwarding the pleadings.  “Rule 54.20 establishes the proof which must be presented to the court to establish that, in fact the defendant has been notified of the pendency of the action.  In the absence of proof of service mandated by the Rule the court lacks the proof established by the Supreme Court as necessary to determine that the court has jurisdiction of the person of the defendant.”  [Citation omitted].  “In the absence of such proof, the court does not have jurisdiction over the defendant, unless he has consented to such jurisdiction or has waived the objection to personal jurisdiction.”

Furthermore, it is well settled that if there is a conflict between a statute and a Supreme Court Rule, the Rule supersedes the statute.

Supreme Court Rule 54.15 provides in pertinent part as follows:

Service on Secretary of State, Secretary of Public Service Commission and Director of Insurance.

(a)        Service of Process.  Service of process on the secretary of state, secretary of the public service commission or director of insurance shall be made by serving a copy of the summons and petition, together with any remittance fixed by statute, on the respective official.  The service of process shall be made as provided in Rule 54.13 or Rule 54.16.

(b)        Notice to Defendant.  The … director of the department of insurance shall forthwith mail to the defendant at the defendant’s last known address a copy of such service and a copy of the summons and petition. The mailing shall be by registered or certified mail requesting a return receipt signed by addressee only.

(emphasis supplied).

Rule 54.20 provides in pertinent part as follows:

Proof of Service

(c)  Certificate of Secretary of State, Secretary of Public Service Commission and Director of Insurance – Mailing of Notice.  The notice specified in Rule 54.15 shall be provided by the affidavit of the official mailing of such notice.  The affidavit shall be endorsed upon or attached to the original papers to which it relates and it, together with the returned registered or certified mail receipt shall be forthwith filed in the court in which the action is pending.

Rule 54.20(c) specifically requires the Director of the Department of Insurance to provide an affidavit of the mailing of the pleadings together with the returned receipt in order to prove the notice requirement of Rule 54.15.  Furthermore, Rule 54.20(c) requires that the affidavit include the returned registered or certified mail receipt.  When an affidavit is mailed by first class mail, not by registered or certified mail, as required by Rule 54.15, proper proof of service is not had.  In addition, if the affidavit filed fails to include a mail receipt that indicates a foreign insurance company in fact received the documents as required by Rule 54.20 proper service is not had.  As stated above, the Court in Maddox held that these requirements must be met in addition to the requirements set forth in § 375.906 in serving and in proving service on a foreign insurance company.

Similarly, in Grooms v. Grange Mut. Cas. Co.  32 S.W.3d 618 (Mo. App. E.D. 2000), the Eastern District affirmed the setting aside of a default judgment against an insurer because of insufficiency of service.  The plaintiff in Grooms argued that service was sufficient under § 375.906.  The insurer argued that service was insufficient because the petition and summons were not mailed to the insurer by certified or registered mail.  In finding service insufficient, the Court of Appeals held that the Department of Insurance was required to mail the documents to the insurer by certified or registered mail with return receipt.  The Court explained:

This Court has previously held that both Rule 54.15 and Section 375.261, RSMo 1994, require that the Director mail to the defendant a copy of the summons and petition by registered or certified mail with return receipt signed by the addressee. Schuh Catering, Inc. v. Commercial Union Ins. Co., 932 S.W.2d 907, 908 (Mo. App. E.D.1996). Rule 54.20 establishes the proof that must be presented to the court to establish that the defendant has in fact been notified of the pendency of the action. Id. “In the absence of proof of service mandated by the Rule the court lacks the proof established by the Supreme Court as necessary to determine that the court has jurisdiction of the person of the defendant.” Id., citing Industrial Personnel Corporation v. Corcoran, 643 S.W.2d 816 (Mo.App.1981).

A plaintiff may attempt to argue that he was not required to comply with Supreme Court Rules 54.15 and 54.20 because service was obtained pursuant to § 375.906.  However, as discussed above that argument was rejected recently by the Court in Maddox.  The Maddox Court held the requirements under Rules 54.15 and 54.20 are additional requirements that also apply when service is sought pursuant to § 375.906.

The fact that the requirements in Rule 54.15 and Rule 54.20 are additional to the requirements of § 375.906, is further demonstrated in Maddox.  In Maddox, the plaintiff argued that the evidence presented on the issue of lack of compliance with § 375.906 was insufficient.  In declining to address that issue, the Court noted as follows:

The issue [of compliance with § 375.906] is not determinative because regardless, the record is still devoid of proof that [the insurer] was in fact given notice as required by Rule 54.20(c).  Therefore, we should decline to reach the merits of the claim.  Second, for the reasons discussed above, the original default judgment was void when entered.

CONCLUSION

Valid service of process is a prerequisite to personal jurisdiction, and failure to comply with legal requirements of process deprives the court of authority to adjudicate.  A plaintiff suing a foreign insurance corporation authorized to conduct business in Missouri must comply with the requirements set forth in Rules 54.15 and 54.20.  When a court enters a judgment when no valid personal jurisdiction has been obtained over the defendant, the judgment is void.  Do not assume the Missouri Department of Insurance has properly satisfied proof of service requirements; check the court file and the case minutes!

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