Krueger v. Williams

Ryan, J.

(dissenting in Krueger; concurring in Rodgers).

Krueger

I dissent from the opinion of the Court in Krueger because I am not persuaded that the trial court abused its discretion in refusing to permit the particular substituted service requested by the plaintiff-appellant.

Our court rule is explicit. GCR 1963, 105.8 provides:

"The court in which an action has been commenced may, in its discretion, allow service of process to be made upon a defendant in any other manner which is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard, if an order permitting such service is entered before service of process is made upon showing to the court that service of process cannot reasonably be made in the manner provided for under other rules.”

While minimum due process standards might be satisfied in a given case by service of process upon a liability insurance carrier, it is for the trial judge to determine, in the exercise of his discretion, on a case-by-case basis whether a specifically proposed "other manner” of service "is reasonably calculated to give * * * actual notice”. Here, the trial judge was informed that the insurance company had received no premium payments and had no contact with the insured for almost three years. He also knew that the plaintiff’s letter to the defendant’s last known address had been returned unopened and that the best efforts of two investigators had failed to locate the defendant. Certainly in the face of those facts the trial judge committed no abuse of discretion in concluding that service upon the insurance carrier was not "reasonably calculated to give [defendant] actual notice” of the lawsuit.

By the adoption of GCR 1963, 105.8, this Court determined that the minimum due process requirement of notice of the pendency of a civil lawsuit would not be the standard in Michigan. Rather, for us, the right to obtain service of process in a manner other than that "provided for under other rules” was made dependent upon the judgment of the trial court in the exercise of its discretion that such "other manner” is reasonably calculated in a given case to give "actual notice” of the pendency of the proceedings.

In my view the trial judge in this case did not abuse his discretion in declining to approve the service upon the liability insurance carrier, given the facts with which he was presented.

Rodgers

I concur in the reasoning and conclusion of my colleagues in the majority with respect to Rodgers.

Coleman, C.J., and Kavanagh, J., concurred with Ryan, J.