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Carlson v. Prestige Casualty Co.

MAY 9, 1975.

EARLINE CARLSON, PLAINTIFF-APPELLEE,

v.

PRESTIGE CASUALTY COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ALLEN HARTMAN, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Defendant appeals from a summary judgment granting the registration of a Missouri judgment under the Uniform Enforcement of Foreign Judgments Act. (Ill. Rev. Stat. 1973, ch. 77, par. 80 et seq.) It contends that the judgment was improper because (1) the Missouri court rendering the judgment had no jurisdiction; and (2) aside from the jurisdiction question, issues of material fact existed at the time judgment was entered.

Plaintiff was issued a policy of insurance by defendant. It is undisputed that, at the time of issuance, both parties were Illinois residents and that, although the policy was entered into in Illinois, plaintiff subsequently moved to Missouri where she was involved in a motor vehicle accident. Under Missouri law *fn1, she was required to furnish proof of financial responsibility. Accordingly, she requested that defendant certify the existence of her policy, which defendant did. In doing so, however, defendant (as a nonresident insurer) also was required to and did execute a power of attorney authorizing the Missouri Director of Revenue to act as its agent for service of process "in any action arising out of a motor vehicle accident in the State of Missouri." Mo. Ann. Stat. § 303.180, subd. 1(1) (Vernon 1953).

Plaintiff then sued defendant in Missouri, seeking recovery under the policy for medical expenses incurred by plaintiff in the motor vehicle accident in that State. Service of process on defendant was made on the Missouri Director of Revenue as its agent in that State, under the aforesaid power of attorney. Defendant failed to answer, and a default judgment was entered against it for $3,316.04, which included the amount of the medical expenses plus interest, a 10% penalty for vexatious delay and attorneys' fees.

Plaintiff subsequently brought this action in the Circuit Court of Cook County to register the Missouri judgment under the Foreign Judgments Act. Defendant's answer admitted the entry of the judgment and its failure to pay. The answer also asserts certain defenses and a setoff which plaintiff, in her reply thereto, states are either irrelevant or an attempt to reopen the merits of the Missouri proceeding.

Defendant then moved for summary judgment, alleging only that the service of process on the Missouri Director of Revenue was insufficient to give the Missouri court jurisdiction over it. Plaintiff filed an answer thereto combined with a countermotion for summary judgment on the pleadings, asserting that the power of attorney executed by defendant made the service on the Director of Revenue sufficient to give the Missouri court jurisdiction. Defendant in its reply moved the court to reserve ruling on plaintiff's motion for summary judgment; or, in the alternative, to deny the motion, alleging that the defenses and the setoff asserted in its answer to the complaint raised triable issues of fact precluding summary judgment for plaintiff.

The trial court denied all of defendant's motions and, in granting plaintiff's motion for summary judgment, found that the Missouri court had jurisdiction over the person of defendant and that there were no genuine issues as to any material fact.

OPINION

• 1 Defendant first contends that the trial court incorrectly found that the Missouri court acquired jurisdiction over it. We initially note that the courts of Illinois may inquire into a judgment of a sister State to determine whether such court had jurisdiction so as to bring its judgment within the full faith and credit clause of the Federal Constitution. (Davis v. Nehf, 14 Ill. App.3d 318, 302 N.E.2d 382.) Here, defendant argues that the authorization of the Missouri Director of Revenue, as its agent for service of process, was limited to suits arising out of the liability coverage of its policy and did not apply to the medical payments provision. In support of this position, it points to the language of the Missouri Motor Vehicle Safety Responsibility Law defining a motor vehicle liability policy:

"7. Any policy which grants the coverage required for a motor vehicle liability policy may also grant any lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy and such excess or additional coverage shall not be subject to the provisions of this chapter. With respect to a policy which grants such excess or additional coverage the term `motor vehicle liability policy' shall apply to that part of the coverage which is required by this section." (Mo. Ann. Stat. § 303.190.7 (Vernon 1953).) (Emphasis in original.)

Plaintiff's policy provided for additional coverage, including medical payments reimbursement under which plaintiff's action was brought. Therefore, defendant reasons that because the statute does not apply to the non-liability provisions of its policy and because defendant's authorization of the Director as its agent for service of process was made to comply with this statute, the Director was authorized to accept service of summons only in suits arising out of the liability coverage. Defendant's position, in effect, is that its policy with plaintiff should be considered as being in two parts — first, the liability portion providing the basic liability coverage required by the Missouri statute, for which actions it had appointed the Director of Revenue to accept service of process; and secondly, an excess or additional coverage portion under which defendant could only be served in accordance with the general provisions of Missouri law authorizing service on nonresident insurance companies by serving the Superintendent of Insurance. *fn2

We believe, however, that the wording of the power of attorney given to the Missouri Director of Revenue is dispositive:

"Prestige Casualty Company has made, constituted and appointed, and does hereby make, constitute and appoint, the Director of Revenue of the State of Missouri its true and lawful attorney in the State of Missouri, on whom service of notice or process, against said company may be made in any action arising out of a motor vehicle accident in the State of Missouri. Said attorney is hereby authorized and empowered to receive and accept such service of notice or process, and such service shall be taken and held as valid as if served upon said Company." (Emphasis added.)

Furthermore, we note that by resolution of its Board of Directors, defendant directed the filing of its certificate of insurance with the Department of Revenue of Missouri as proof of financial responsibility "of one or more of its policyholders" and that, by the same resolution, the power of attorney was authorized "in any action ...


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