Tuesday, July 14, 2009

Service of process on defendant's insurance company held insufficient

The Massachusetts Appellate Division held last month that service of process on a defendant in a motor vehicle accident cannot be made by serving the defendant's insurance company. (The Massachusetts Appellate Division hears appeals from the Massachusetts District Court. The decisions of the Appellate Division do not set precedent, and may be appealed the the Massachusetts Appeals Court.)

In Huggins v. Santos, decided on June 17, 2009, Huggins alleged he was injured by Santos in a car accident in Massachusetts in 2004. Santos allegedly lived out of state. The trial court judge allowed Huggins' motion for leave to make service upon Santos by serving Santos's insurance carrier.

After service on the insurer Santos answered the complaint, including an affirmative defense that service was not properly effected and was untimely. Santos then moved to dismiss the case on the grounds of improper service. The court eventually dismissed the action.

On appeal the Massachusetts Appellate Division upheld the dismissal. Huggins argued that Massachusetts Rule of Civil Procedure 4(e)(5) permits a judge to order any means of service on an out-of-state defendant. The court held that there is no authority allowing a defendant to be served through his or her insurance company. The court said, "To argue that such service was proper because the rule permits the court to order service by any means on an out-of-state defendant is to beg both the general question of its propriety and the specific question of whether the method ordered satisfied the very purposes of service of process: to insure a defendant's due process rights by providing notice and an opportunity to be heard."

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