By: Renee L. Day
Our judicial system rests upon the hallmarks of notice and an opportunity to be heard. In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), the seminal case regarding due process and notice, the United States Supreme Court noted that “when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id. at 315. While providing actual notice is preferred in Indiana, it is acceptable in some instances to effectuate service using a method which will only provide constructive notice to an interested party. Resorting to special service rules such as service by the Secretary of State is only appropriate “if that party’s whereabouts cannot reasonably and in the exercise of due diligence be ascertained.” Id.
Currently, we represent parties in a case pending before the Indiana Court of Appeals that specifically deals with the issue of constructive service through the Secretary of State. In that case, the plaintiff attempted to serve both a driver and trucking company by certified mail at their respective addresses as they were listed on the police crash report. Service was unsuccessful. The plaintiff took no further steps to obtain actual service on the parties and instead resorted directly to service by the Secretary of State. The trial court entered default judgment against both the driver and trucking company.
Once the default judgment had been entered, the plaintiff substantially increased his efforts to locate the defendants. The parties were eventually put on notice of the lawsuit when efforts to collect upon the default judgment were well under way. The trial court denied a motion to set aside the default judgment and this appeal followed.
Constructive notice is certainly contemplated by Indiana law in a situation where a nonresident motor vehicle operator is named in a lawsuit as a result of an accident that occurs within the state. Indiana Code 34-33-3-1 provides that a nonresident (or the authorized agent of a nonresident) who operates a motor vehicle in Indiana is considered to have appointed the Secretary of State as their agent for service of process in any action arising from an accident that occurred while operating their vehicle within the state. The operation of the motor vehicle is an agreement that process against the person has the same legal force and validity as if served upon the person personally. Ind. Code 34-33-3-1(c).
In addition to adopting this jurisdictional mechanism by statute, Indiana has elected to implement its version of the long-arm statute by Trial Rule as well. Indiana Trial Rule 4.4(A) provides, in pertinent part, that any person or organization that is a nonresident of this state submits to the jurisdiction of the courts of this state for personal injury or property damage that results from an act or omission done within this state. The manner of acceptable service is then outlined in Indiana Trial Rule. 4.4(B)(2), which provides that “the person shall be deemed to have appointed the Secretary of State as his agent upon whom service of summons may be made as provided in Rule 4.10.”
Indiana Trial Rule 4.10 delineates the process by which service on the Secretary of State is accomplished. The person seeking service must submit a praecipe for summons to the Clerk of the Court that that includes a statement that the Secretary of State is the agent of the person being served, the person’s current or last known address, and any fee prescribed by statute. Ind. T.R. 4.10(1). The Secretary of State then serves the individual by registered or certified mail with a copy of the summons and complaint and completes a return of service. Ind. T.R. 4.10(2). The Secretary of State completes the process by sending the clerk an affidavit reflecting the details of the mailing together with a copy of the return receipt. Ind. T.R. 4.10(2).
In Munster v. Groce, 829 N.E.2d 52, (Ind. Ct. App. 2005), the Indiana Court of Appeals examined the issue of whether service through the Indiana Secretary of State is properly effected service of process. In Munster, the plaintiff attempted to serve the defendant Groce twice by certified mail; however, the mail was returned in both instances. Id. at 59. After the second failed attempt, the plaintiff then attempted to perfect service through the Secretary of State pursuant to the special service rules outlined above, Indiana Trial Rules 4.4 and 4.10. Id. The Secretary of State mailed copies of the documents to the addresses provided by Munster, and those copies were returned undelivered. Id. at 56.
In addressing the issue of service as to Groce, the Court reiterated the rule that a method of service that is unlikely to give actual notice to an interested party (i.e., constructive notice) is only acceptable “if that party’s whereabouts cannot reasonably and in the exercise of due diligence be ascertained.” Id. at 58. The Court then determined that notice on the Secretary of State under Trial Rule 4.10 was, at best, constructive notice. Id. at 60.
Turning to the facts, the Court held that in order for service through the Secretary of State to be proper, “there must be a showing by the plaintiff or party who sought service that due diligence to ascertain the defendant’s current whereabouts was exercised and service through the Secretary of State was reasonable under the circumstances.” Id. at 60-61. Without a showing of such due diligence, service on the Secretary of State is not sufficient. Id. at 61-62.
The Munster Court concluded that the plaintiff had not established such due diligence, stating that the “bare-bones affidavit does not permit the conclusion that due diligence was used to locate Groce’s current whereabouts, or that service via the Secretary of State, using an address that apparently was known to be invalid, was reasonably calculated to provide Groce notice of this lawsuit.” Id. at 62.
Based upon the above-referenced statute, Trial Rules, and case law, the matter currently on appeal challenges the plaintiff’s attempts to locate the whereabouts of the driver and trucking company before resorting to constructive notice on the Secretary of State. The Court of Appeals will have to decide if the plaintiff’s efforts to find the defendants were diligent before the default judgment was entered or whether those efforts were only diligent after the default judgment.
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