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Hart v. Cote

Decided: November 23, 1976.


Margolis, J.s.c.


Plaintiffs, a driver and two passengers, brought suit in this court for damages arising out of a motor vehicle accident which occurred on December 7, 1974 in Florida. Plaintiffs are and were at all times referred to herein residents of New Jersey. Defendant allegedly was and is represented as being a resident of Quebec, Canada. Defendant's insurance carrier, Travelers Insurance Company (Travelers), is a corporation authorized to conduct business and is and has been conducting business in New Jersey. Plaintiffs have attempted to effect service by certified and regular mail on defendant Cote without success, and have in fact effected service without court order on Travelers. The claim of plaintiff-driver Michael Hart has been settled by Travelers in New Jersey. The claims of the other plaintiffs-passengers, Marion Hart and Marlene Hart, remain unresolved.

Defendant has moved to dismiss the complaint prior to any responsive pleading, alleging lack of jurisdiction. The remaining plaintiffs, by way of cross-motion, seek an order attaching the proceeds of the Travelers policy to the extent of the policy limits, thus raising an issue of novel impression in this State.

Plaintiffs further urge that this court has in personam jurisdiction as a result of the service on Travelers.

There is no in personam jurisdiction over defendant Cote. While the minimum contacts rule has in the State of New Jersey been stretched to "the outermost limits of due process," Avdel Corp. v. Mecure , 58 N.J. 264 (1971), the contacts must at least be sufficient so as not to offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington , 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). While the courts of this State have extended jurisdiction over out-of-state defendants to tortious activity within the State and economic advantage sought within the State, See e.g. Blessing v. Prosser , 141 N.J. Super. 548 (App. Div. 1976); Egan v. Fieldhouse , 139 N.J. Super. 220 (Law Div. 1975); Cooke v. Yarrington , 62 N.J. 123

(1973); Avdel Corp. v. Mecure, supra , this court is unaware of any authority, nor has any been cited, permitting the court to grant jurisdiction over an out-of-state defendant whose only contact with this State is to have an automobile accident with a resident of this State in another jurisdiction, or whose insurance carrier does business in this State.

A state may obtain jurisdiction over a res or property wherever the property in any form has gained a situs within the state. The obligation of the debtor to pay his debt clings to him wherever he goes. Harris v. Balk , 198 U.S. 215, 25 S. Ct. 625, 49 L. Ed. 1023 (1905). Here, plaintiffs urge that the debt alleged to be subject to attachment arises out of the liability insurance policy contract to defend and indemnify claims arising out of the contract.

Plaintiff relies in the main on Seider v. Roth , 17 N.Y. 2d 111, 269 N.Y.S. 2d 99, 216 N.E. 2d 312 (Ct. App. 1966). There a New York resident had an accident with a Canadian resident in Vermont, and the liability insurer of the defendant was doing business in New York. Defendant was personally served in Canada. In a 4-3 decision the court upheld attachment, in effect stating that the obligation under the insurance policy was a debt owed to a defendant by the insurer and, therefore, subject to attachment. The court stated:

It is said that by affirmance here we would be setting up a "direct action" against the insurer. That is true to the extent only that affirmance will put jurisdiction in New York State and require the insurer to defend here, not because a debt owing by it to the defendant has been attached but because by its policy it has agreed to defend in any place where jurisdiction is obtained against its insured. Jurisdiction is properly acquired by this attachment since the policy obligation is a debt owed to the defendant by the insurer, the latter being regarded as a resident of this State as Riggle holds in so many words at pages 76 and 77 of 11 N.Y. 2d, at pages 417 and 418 of 226 N.Y.S. 2d, at pages 437 and 438 of 181 N.E. 2d. [269 N.Y.S. 2d at 102, 216 N.E. 2d at 315]

Thus, Seider places much emphasis on Matter of Riggle , 11 N.Y. 2d 43, 226 N.Y.S. 2d 416, 181 N.E. 2d 436 (Ct.

App. 1962). In Riggle it was held that attachment of the liability insurance policy of an Illinois resident by a New York resident, where the accident occurred in Wyoming, was permissible because the obligation to defend and indemnify constituted a sufficient debt in the State of New York for the appointment of an administrator. It is ...

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