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Bevins v. Comet Casualty Co.

OPINION FILED MAY 14, 1979.

CLAUDE BEVINS, JR., BY CLAUDE BEVINS, HIS FATHER AND NEXT FRIEND, ET AL., PLAINTIFFS-APPELLEES,

v.

COMET CASUALTY COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM AUSTIN KELLY, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Claude Bevins, Jr., by his father and next friend Claude Bevins, Sr., and Claude Bevins, Sr., individually (plaintiffs), filed a petition for registration of judgments against Comet Casualty Company, an Illinois corporation (defendant), which had been entered in the circuit court of Greenbrier County, West Virginia (Ill. Rev. Stat. 1977, ch. 77, par. 88 et seq.). Defendant appeals from an order granting the relief prayed and making the judgments final judgments of the circuit court of Cook County.

In this court, defendant urges that the jurisdictional facts required by the pertinent statute of West Virginia were not performed by defendant and therefore the substituted service of process upon defendant was invalid; the West Virginia court lacked personal jurisdiction over defendant so that the judgments were void; defendant did not have those minimum contacts with West Virginia necessary for the exercise of personal jurisdiction over defendant; the trial court failed to determine whether the West Virginia court had jurisdiction over the person of defendant, and the trial court erred in not allowing trial by jury.

In response plaintiffs urge that defendant was amenable to service under the pertinent West Virginia statute so that substituted service on defendant comported with the requirements of due process of law because the West Virginia court had acquired jurisdiction over defendant.

A summary of the trial record is essential. This entails difficulties which arise not from the size of the record but from the fact that the entire file was lost in the trial court. The ensuing process of restoration pursuant to court order has created problems in that the various portions of the record have not been presented to this court in chronological order.

The record shows that plaintiffs filed the petition for registration supported by a series of exhibits. Defendant filed its appearance and a demand for jury trial. Defendant filed an answer to the petition alleging that the West Virginia court did not have jurisdiction over the person of defendant because defendant had never conducted business in West Virginia. The answer is supported by affidavits by the president and secretary of defendant. Defendant also filed a "Reply to Petition for Registration and Motion to Dismiss Complaint." This document raised the same issue of lack of jurisdiction by the West Virginia court over defendant. Incorporated therein are three affirmative defenses raising the same issue regarding jurisdiction of the West Virginia court and a further issue that the law of West Virginia does not provide for direct action against an insurance company as a result of injuries sustained in an automobile collision.

Plaintiffs filed a motion to strike the responsive pleadings of defendant taking issue with the alleged lack of jurisdiction of the West Virginia court and pointing out that the West Virginia judgments against defendant are based upon a previous judgment entered by the court of that State in favor of plaintiffs and against Edward Chrisman, Jr., defendant's insured.

Plaintiffs filed a lengthy request for admissions by defendant of 25 stated factual matters. Various exhibits were appended to this request. Defendant responded to this request. Certain factual statements were admitted. As to others, defendant stated that it had no knowledge. As to this latter group, defendant either demanded "strict proof" or interposed a general denial.

All of the following pertinent facts appear from the above sources in the record. We find no material factual issue or dispute in the record or in the briefs.

Defendant was originally known as "Old Mutual Casualty Company." By change of corporate name it became "Comet Casualty Company." On July 31, 1970, an automobile owned and operated by Edward Chrisman, Jr., was involved in an automobile accident in Greenbrier County, West Virginia. At that time Chrisman was insured by "a family combination automobile policy" issued to him by defendant. In the policy defendant agreed to pay Chrisman all sums which he might become legally obligated to pay by virtue of bodily injury and property damage arising out of the ownership and operation of the automobile. Plaintiffs filed suit in Greenbrier County for personal injuries as a result of the alleged negligence of Chrisman in operating his automobile.

On April 27, 1972, after the entry of a default against Chrisman in the West Virginia court, a jury awarded damages to plaintiff Claude Bevins, Jr., of $3600 and to plaintiff Claude Bevins, Sr., of $251.63. Judgments were entered against Chrisman for those amounts. These judgments remained unpaid.

Plaintiffs filed suit in the West Virginia court against defendant for recovery of the amounts of these judgments and for the allowance of punitive damages against defendant. The theory of the latter claim was that defendant had ample opportunity to comply with the terms of its insurance contract with Chrisman but had unreasonably failed to do so and this conduct constituted intentional fraud under the law of West Virginia.

In connection with this suit the attorney for plaintiffs caused service of summons and of a copy of the complaint to be made upon the State Auditor of West Virginia. Defendant was served with the summons and a copy of the complaint by registered mail, sent to defendant in Illinois with return receipt requested. These documents were duly received by the defendant. No appearance or responsive pleading was filed by defendant in the West Virginia proceedings.

On September 20, 1971, defendant wrote a letter to Edward Chrisman addressed to him in Greenbrier County, West Virginia. Defendant reserved all rights under the policy on the theory that Chrisman had breached a condition thereof by failure to give defendant written notice of the occurrence. ...


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