Minichiello v. Rosenberg

FRIENDLY, Circuit Judge:

These two appeals are from orders denying motions to dismiss complaints of New York residents in automobile accident actions against nonresident defendants wherein jurisdiction was predicated on attachment of the defendants’ interests in liability insurance policies issued by companies doing business in New York, CPLR §§ 5201, 6202. They require us to consider the constitutionality of the procedure sanctioned by the New York Court of Appeals in the much discussed case of Seider v. Roth, 17 N.Y. 2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966) , as elaborated in Simpson v. Loeh-mann, 21 N.Y.2d 305, 287 N.Y.S.2d 633, 234 N.E.2d 669 (1967), motion for re-argument denied, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319 (1968). See also Victor v. Lyon Associates, Inc., Hanover Ins. Co., Appellant, 21 N.Y.2d 695, 287 N.Y.S.2d 424, 234 N.E.2d 459 (1967) , appeal dismissed for want of a substantial federal question, 392 U.S. 8, 89 S.Ct. 44, 21 L.Ed.2d 8 (1968).

Marie Minichiello, a resident of New York, brought suit in the Supreme Court of New York for Schuyler County, in her own right and as executrix of her husband Thomas, to recover $205,050 for injuries to Thomas, for his death, for injuries to herself, and for damage to their car in an accident near Harrisburg, Pa., allegedly caused by the negligence of the defendant Rosenberg, a resident of Pennsylvania. An order of attachment was served at an office in New York on Allstate Insurance Co., which had issued to Rosenberg in Pennsylvania a policy insuring against liability in an amount less than the recovery sought. Rosenberg removed the action to the District Court for the Western District of New York and there sought an order dismissing the complaint on the ground that the procedure sanctioned by Seider v. Roth violated the Federal Constitution. Judge Burke denied the motion¹ but later made the certificate required by 28 U.S.C. § 1292(b). Since the problem was of obvious importance and the decision ran counter to Judge Croake’s in Podolsky v. Devinney, 281 F.Supp. 488 (S.D.N.Y.1968), we granted leave to appeal.

Elwin W. Stevens, a resident of New York, brought suit in the Supreme Court for Rensselaer County on his own behalf and as guardian for his son Dennis against Stephen Tyng, Sr., and Stephen Tyng, Jr., residents.of Massachusetts, to recover $200,350 for injury to Dennis, loss of Dennis’ services, and damage to a motor scooter sustained at Orleans, Massachusetts, as a result of the alleged negligence of Tyng, Jr., in driving a car owned by his father. Plaintiff attached a policy insuring against liability in the amount of $100,000 for any person and $300,000 for any accident issued outside New York by American Motorists Insurance Co., which does business in New York. Defendants removed the action to the District Court for the Northern District of New York and moved, inter alia, to dismiss the complaint for want of jurisdiction. Judge Ryan, sitting in the Northern District by designation, denied the motion² but, recognizing the contrary decision in Podolsky, made the certificate specified in 28 U.S.C. § 1292(b). Since the issue was identical with that already argued in Minichiello v. Rosenberg, we granted leave to appeal, with the case to be submitted on briefs.

Seider v. Roth was an action by New York residents against Lemiux, a Canadian, for injuries suffered in an automobile accident in Vermont.³ Plaintiffs attached in New York a liability policy issued to Lemiux in Canada by Hartford Accident and Indemnity Co., which does business in New York. The Court of Appeals, speaking through Chief Judge Desmond, treated the problem solely as one of statutory construction, namely, whether “as soon as the accident occurred there was imposed on Hartford a contractual obligation which should be considered a ‘debt’ within the meaning of CPLR 5201 and 6202.” The court answered this in the affirmative. Neither the majority opinion nor the dissent by Judge Burke, in which Judges Bergan and Scileppi concurred, adverted to constitutional doubts.

Seider v. Roth received a poor press from the commentators. See, e. g., Reese, The Expanding Scope of Jurisdiction over Non-Residents — New York Goes Wild, 35 Ins. Counsel J. 118 (1968); Comment, Attachment of “Obligations” —A New Chapter in Long-Arm Jurisdiction, 16 Buffalo L.Rev. 769 (1967); Comment, Garnishment of Intangibles: Contingent Obligations and the Interstate Corporation, 67 Colum.L.Rev. 550 (1967); Note, Seider v. Roth: The Constitutional Phase, 43 St. John’s L. Rev. 58 (1968); Comment, Quasi in Rem Jurisdiction Based on Insurer's Obligations, 19 Stan.L.Rev. 654 (1967); and a number of comments by Professor David Siegel of St. John’s University School of Law, one antedating the Court of Appeals’ decision, which have appeared in the annual supplements to CPLR § 5201 in McKinney’s Consolidated Laws of New York. In Simpson v. Loehmann, supra, 21 N.Y.2d 305, 287 N.Y.S.2d 633, 234 N.E.2d 669, the court was asked to reconsider Seider v. Roth hot only as going beyond the New York attachment statutes but as offending the due process clause of the Fourteenth Amendment, imposing an undue burden on interstate commerce in insurance, and impairing the obligations of the policy. The court reaffirmed its earlier ruling. While only Judges Burke and Scileppi dissented from this, Judges Breitel⁴ and Bergan concurred solely “on constraint of Seider v. Roth,” saying that “only a major reappraisal by the court, rather than the accident of a change in its composition, would justify the overruling of that precedent,” which, however, they severely criticized “if only, perhaps, to hasten the day of its overruling or its annulment by legislation.”

On the constitutional claims, Chief Judge Fuld, writing for himself and Judge Van Voorhis, summarily disposed of the interstate commerce and impairment of contract obligation arguments, 21 N.Y.2d at 309 n. 2, 287 N.Y.S.2d at 635 n. 2, 234 N.E.2d at 670 n. 2. He then pointed out that under modern views the sufficiency of a basis for jurisdiction depends on “a practical appraisal of the /situation of the various parties rather / than an emphasis upon somewhat magical and medieval concepts of presence and power.” 21 N.Y.2d at 311, 287 N.Y.S.2d at 637, 234 N.E.2d at 672. He stressed the insurer’s control of the litigation and that “where the plaintiff is a resident of >/ the forum state and the insurer is present in and regulated by it, the State has a substantial and continuing relation with l^the controversy.” Judge Keating, concurring, reasoned that New York could validly enact a direct action statute in favor of its residents for out-of-state accidents and that there was “no policy reason for not holding that service of process on the real party defendant — the insurer — is sufficient to compel it to defend in this State, provided it transacts business here and is thus subject to the jurisdiction of our courts.” 21 N.Y. 2d at 312-314, 287 N.Y.S.2d at 638, 234 N.E.2d at 673. Judges Breitel and Bergan found it unnecessary to deal with the constitutional issues since, on their view, “if the court was right in the Seider case, then there is no constitutional question,” 21 N.Y.2d at 316, 287 N.Y.S.2d at 642, 234 N.E.2d at 675. Judges Burke and Scileppi thought Seider was of doubtful constitutionality on any of the bases asserted in its support.

Although Judge. Keating’s opinion in Simpson v. Loehmann is more explicit than Chief Judge Fuld’s on this score, it is reasonably clear that the Court of Appeals regards Seider v. Roth as in effect a judicially created direct action statute. The insurer doing business in New York is considered the real party in interest and the nonresident insured is viewed simply as a conduit, who has to be named as a defendant in order to provide a conceptual basis for getting at the insurer. See 1968 Commentary to CPLR § 5201, paras. 88, 89. It is thus useful to address ourselves in the first instance to Judge Keating’s premise that New York could constitutionally provide^ for a direct action against an insurer doing business in New York by a New < York resident with respect to an injury ¡ suffered elsewhere. If that premise should fail, Seider would almost certainly fall with it. If it stands we must then examine whether Seider may still be vulnerable because, unlike a true direct action statute, it involves the nonresident insured as a party defendant.

In Watson v. Employers Liability Assurance Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1954), the Supreme Court sustained Louisiana’s direct action statute, which overrode contrary provisions in liability policies issued by insurers doing business in that state whether or not the policy had been written or delivered within it. The statute, however, applied only to accidents or injuries occurring in Louisiana. The first set of considerations marshaled by Mr. Justice Black in favor of its validity, 348 U.S. at 72-73, 75 S.Ct. 166, 170, would relate with equal force to one on behalf of residents. He stressed that “persons injured or killed in Louisiana are most likely to be Louisiana residents, and even if not, Louisiana may have to care for them. Serious injuries may require treatment in Louisiana homes or hospitals by Louisiana doctors. The injured may be destitute. They may be compelled to call upon friends, relatives or the public for help.” On the other hand, his next argument, that “Louisiana courts in most instances provide the most convenient forum for trial of these cases,” by its very terms could not apply. While the place of the plaintiff’s residence may be a convenient forum for the trial of an action arising from an out-of-state accident in that not only he but much of the evidence of damages may be there, it will rarely be “the most convenient” one since the other witnesses to the accident are elsewhere — possibly far away.⁵ But the Justice’s final consider"ation — the plaintiff’s difficulty in bringing the defendant before the forum— applies with even greater force to the state of plaintiff’s residence than to that of injury in light of the development of long-arm statutes that will generally allow the state of injury to obtain personal jurisdiction of the insured and so avoid the need for a direct action against the insurer.

We thus believe that, all things considered, the Supreme Court would sustain the validity of a state statute permitting direct actions against insurers doing business in the state in favor of residents as well as on behalf of persons injured within it. See Note, Direct-Action Statutes: Their Operational and Conflict-of-Law Problems, 74 Harv.L. Rev. 357, 361 (1960). The state’s interest in protecting its residents is as great as in the case of nonresidents injured within the state. While the burden on the insurer in trying a case in a state other than the locus of the accident is heavier, there has been, as we have recently noted, “ ‘a movement away from the bias favoring the defendant,’ in matters of personal jurisdiction ‘toward permitting the plaintiff to insist that the defendant come to him’ when there is a sufficient basis for doing so,” Buckley v. New York Post Corp., 373 F.2d 175, 181 (2 Cir. 1967), quoting Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.L.Rev. 1121, 1128 (1966). Indeed, the Supreme Court may have already decided this point by dismissing Hanover Ins. Co. v. Victor, 1968, “for want of a substantial federal question,” see 393 U.S. 7, 89 S.Ct. 44 (1968), although the order there sought to be reviewed would not seem to have been appealable under 28 U.S.C. § 1257. Since, on the other hand, we doubt that the Court would sanction a direct action statute where the state was neither the place of injury nor the plaintiff’s residence, we equally doubt whether Seider could validly be applied in such a case.-⁶

With so much established, we turn to the question whether the position of the insured is as nominal as the New York Court of Appeals conceives. Here we proceed from the basis, apparently accepted by everyone, that the mere fact of a nonresident’s having taken out liability insurance with a company doing business in New York would not be a sufficient contact to enable New York to render a judgment enforceable against other assets even at the suit of a resident.

In Podolsky v. Devinney, supra, 281 F.Supp. at 495-497, Judge Croake cogently argued that Seider v. Roth came close enough to this to constitute a denial of due process. He thought that, under the seemingly clear language of CPLR § 320(c), if the insured defended on the merits, he would subject himself to in personam jurisdiction with consequent personal liability for any judgment in excess of the policy limits. On the other hand, if the insured did not defend and judgment was entered by default, the insurer should be able to resist a levy on the basis of the insured’s non-corporation. In cases where the plaintiff’s claim exceeded the policy limits, Seider thus produced either a constitutionally unacceptable result or a nullity.

These difficulties were largely swept away by what has been termed “a miraculous per curiam opinion,” see Commentary on CPLR § 5201, at 15 (McKinney Supp. 1968), denying reargument in Simpson v. Loehmann, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319 (1968). The Court of Appeals began by criticizing the argument just summarized, which had not been earlier advanced before it, as failing to take account of its statement, 21 N.Y.2d at 310, 287 N.Y.S. 2d at 636, 234 N.E.2d at 671, that the Seider doctrine did not “expand the basis for in persona jurisdiction in view of the fact that the recovery is necessarily limited to the value of the asset attached, that is, the liability insurance policy.” The “miracle” lay in the next sentences:

“This, it is hardly necessary to add, means that there may not be any recovery against the defendant in this sort of case in an amount greater than the face value of such insurance policy even though he proceeds with the defense on the merits. Consideration of CPLR 320 (subd. [c]) and its effect in other • types of action begun by attachment must, of course, await future cases.” (Emphasis supplied.)⁷

Appellants respond that while this unexpected construction of CPLR § 320(c) protects the defendant in the New York Seider action, it does not fully meet the problem where as here the demands exceed the policy limits. Their fear is that if the plaintiff sues later for the unmet balance in a state where he has acquired jurisdiction in personam, a plaintiff’s judgment in the New York Seider action will be taken to have adjudicated the defendant’s liability. It is plain that the New York judgment could not be given effect as such beyond the amount of the insurance; the troubling issue is whether a state could deem it effective as a collateral estoppel. Commentators have indicated that the due process clause prevents a state from giving a quasi in rem judgment such effect. Carrington, Collateral Estoppel and Foreign Judgments, 24 Ohio State L.J. 381, 384 (1963); Cramton & D. Cur-rie, Conflict of Laws, 645-646 (1968); Developments in the Law — Res judicata, 65 Harv.L.Rev. 818, 835 (1952). Accord, Combs v. Combs, 249 Ky. 155, 60 S.W.2d 368, 89 A.L.R. 1095 (1933); contra, Harnischfeger Sales Corp. v. Sternberg Dredging Co., 189 Miss. 73, 191 So. 94, 195 So. 322 (1940). Other authorities have concluded that a quasi in rem judgment may work an estoppel on issues of fact that the defendant has actually litigated, at least where he has had a fair opportunity to do this. See Restatement of Judgments § 76(2) (1942); Taintor, supra, 8 U.Pittsburgh L.Rev. at 235; cf. Sherman v. Jacobson, 247 F.Supp. 261, 266-267 (S.D.N.Y.1963); Sherman v. Kirshman, 369 F.2d 886, 890 (2 Cir. 1966). Whatever the right rule may be as to quasi in rem judgments generally, we think it clear that neither New York nor any other state could constitutionally give collateral estoppel effect to a Seider judgment when the whole theory behind this procedure is that it is in effect a direct action against the insurer and that the latter rather than the insured will conduct the defense. To be sure it may be cold comfort to a nonresident defendant to have our assurance that if some state should be so misguided as to consider a New York Seider judgment as concluding him, he will be able to have this ruling overturned by the Supreme Court of the United States. But we cannot fairly hold that New York has denied due process merely because of the possibility that some other state may do so.

We can foresee that application of Seider may produce other problems of due process. One may arise from CPLR 3110, subd. 1, which provides that a party must appear in New York for the taking of his deposition. This has been held to apply to a nonresident defendant over whom jurisdiction has been obtained only by the Seider route, Gazerwitz v. Adrian, 28 A.D.2d 556, 280 N.Y.S.2d 233 (2d Dept.1967). Nevertheless, if such a defendant declined so to appear despite the immunity from service of process that New York has long recognized,⁸ we doubt that a default judgment could validly be entered. But we can hardly assume either that Seider plaintiffs will recklessly imperil their own recoveries by insisting on defendants’ coming into the state or that, if they did, the Court of Appeals would not rescue them from their folly by reading into CPLR 3110, subd. 1 a conclusive presumption of hardship in Seider cases sufficient to excuse the defendants’ appearing. Moreover, such matters are of no concern to the defendants here since service of subpoenas upon them is governed by F.R. Civ.P. 45. Problems may also arise about counterclaims if the pronouncement in the opinion denying reargument in Simpson as to the limited effect of an appearance in a Seider action does not cover their assertion. What would otherwise be the most serious difficulties in this area are removed by the absence of a compulsory counterclaim rule in New York, Frank M. Herbert, Inc. v. M & P Scrap Iron & Metal Corp., 41 Misc.2d 1020, 1024, 247 N.Y.S.2d 193, 197 (2d Dept.1964), and, so far as concerns these actions by the careful exclusion in F.R. Civ.P. 13(a) of a case where “the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim * * The argument thus has to become that it is unfair to put a nonresident with whom New York has no real contact in a position where he can assert a counterclaim only at the price of exposing himself to liability above the policy limits. But the insured would be in no position to assert a counterclaim under a direct action statute, and we do not now see how New York would deny him due process if it allowed him to assert one in a Seider action only at the risk of personal liability. In any event no such problem is presented here; we leave such questions and others that may be hypothesized for further consideration when they arise. It suffices for decision that the appellants have not demonstrated that refusal to dismiss the complaints will deny them the due process of law which the Fourteenth Amendment prescribes.

Appellants’ argument based on the clause of the Constitution, Art. I, § 10, clause 1, forbidding impairment of the obligation of contracts does not require extended answer. The argument is that a Seider attachment compels the insured to breach his pledge of cooperation by making the assertion of a defense too hazardous and thus jeopardizes his insurance coverage. But this contention has been drained of force by the per curiam opinion denying reargument in Simpson, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319, which we have previously discussed.

Affirmed.

1 . Defendant also moved to dismiss the wrongful death claim as barred by the Pennsylvania statute of limitations. This motion was denied without prejudice to defendant’s raising the point at trial, and we have not been asked to pass upon that ruling,

2 . We have taken note of a similar decision by Judge McLean in the Southern District of New York in Jarvik v. Magic Mountain Corp., 290 F.Supp. 998 (1968).

3 . Roth, whose name will go down in legal history, is identified only as “the driver of a third ear involved in the collision,” 17 N.Y.2d at 112, 269 N.Y.S.2d at 100, 216 N.E.2d at 313; it does not appear whence he came or whether any attempt was made to acquire jurisdiction over him.

4 . Judge Breitel filled the vacancy created by Chief Judge Desmond’s retirement. Subsequently Judge Van Voorhis, who was in the majority in both Seider and Simpson, retired and has been succeeded by Judge Jasen.

5 . In Victor v. Lyon Associates, Inc., Hanover Ins. Co., Appellant, 21 N.Y.2d 695, 287 N.Y.S.2d 424, 234 N.E.2d 459 (1967), decided along with Simpson v. Loehmann, the accident took place in Vietnam.

6 . It would be a serious misreading of Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212 (1951), and First Nat’l Bank of Chicago v. United Air Lines, Inc., 342 U.S. 396, 72 S.Ct. 421, 96 L.Ed. 441 (1952), to suppose that these cases would prohibit New York from creating a remedy against nonresident defendants in out-of-state accidents solely for its residents, particularly when an attempt to include nonresidents not injured within the state might make the remedy unavailable for anyone. Where neither party is a resident and the accident was out of state, a refusal to exercise jurisdiction would be a permissible application of forum, non conveniens. See Hughes v. Fetter, supra, 341 U.S. at 612-613, 71 S.Ct. 980; B. Currie, The Constitution and the “Transitory” Cause of Action, in Selected Essays on the Conflict of Laws 282-360, and especially 320.

7 . Although Professor Siegel is doubtless right in saying that “not even a prophet would have guessed at this result if the statement had not been added,” Commentary on CPLR § 5201, at 17 (McKinney Supp.1968), the “miracle” may not really have been so great. The Court of Appeals may have entertained qualms about the constitutionality of CPLR § 320(c) both in the Seider situation and, as indicated by the last sentence of the quotation, in other instances of quasi in rem jurisdiction. There is substantial authority that where the presence of property^-' within the state is the sole basis for jurisdiction, it is unfair to require the defendant to choose between forfeiting this and subjecting himself to liability for a larger claim. See Cheshire Nat’l Bank v. Jaynes, 224 Mass. 14, 112 N.E. 500 (1916); Salmon Falls Mfg. Co. v. Midland Tire & Rubber Co., 285 F. 214 (6 Cir. 1922); McQuillen v. Nat’l Cash Register Co., 112 F.2d 877 (4 Cir.), cert. denied, 311 U.S. 695, 61 S.Ct. 140, 85 L. Ed. 450 (1940); Miller Bros. v. State, 201 Md. 535, 95 A.2d 286 (1953), rev’d on other grounds, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744 (1954). But see, contra, Campbell v. Murdock, 90 F.Supp. 297 (N.D.Ohio 1950); Anderson v. Benson, 117 F.Supp. 765 (D.Neb.1953); Sands v. Lefcourt Realty Corp., 35 Del. Ch. 340, 117 A.2d 365 (1955); United States v. Balanovski, 236 F.2d 298 (2 Cir. 1956), cert. denied, 352 U.S. 968, 77 S.Ct. 357, 1 L.Ed.2d 322 (1957). Although the commentators are likewise divided, several suggest that to deny the defendant an opportunity to defend without submitting to in personam jurisdiction violates due process. See Taintor, Foreign Judgment in Rem: Full Faith and Credit v. Res Judicata in Personam, 8 U.Pittsburgh L.Rev. 223 (1942); and B. Currie, Attachment and Garnishment in the Federal Courts, 59 Mich.L.Rev. 337, 379-80 (1961); ef. Restatement of Judgments § 40 (1942). But see 2A Moore, Federal Practice ¶12.13 (2d ed. 1948 & Supp. 1967) ; Blume, Actions Quasi in Rem under Section 1655, Title 28, U.S. C., 50 Mich.L.Rev. 1, 22-24 (1951).

8 . See Parker v. Marco, 136 N.Y. 585, 32 N.E. 989, 20 L.R.A. 45 (1893); Bunce v. Humphrey, 214 N.Y. 21, 108 N.E. 95 (1915).