On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Michels, King and Dreier. The opinion of the court was delivered by Michels, P.J.A.D.
Pursuant to leave granted by this court, plaintiffs Kenneth Houie, Catherine Houie and Tiffany J. Houie, an infant, by her guardian ad litem, Kenneth Houie, appeal from an interlocutory order of the Law Division denying service of process on defendant Paul Allen by serving his homeowner's insurance carrier, State Farm Fire & Casualty Company (State Farm).
Defendant was shot and injured while working as a disc jockey at the Dreamboat Lounge in Newark, New Jersey. He identified his assailant as plaintiff Kenneth Houie, who was charged with aggravated assault with intent to cause bodily injury in violation of N.J.S.A. 2C:12-1(b). Plaintiff was arrested and incarcerated in the Essex County Jail for four days. Subsequently, the charges against plaintiff were administratively dismissed by the Essex County Prosecutor's Office when it was affirmatively established that defendant's identification of him was false. Plaintiff thereupon instituted this action against defendant seeking to recover both compensatory and punitive damages. Defendant was charged with malicious use of process, malicious abuse of process and libel and slander. Plaintiff's wife sued per quod and together with his daughter also sued for damages sustained as the result of the alleged tortious conduct of defendant.
Attempts to serve defendant with process by delivery in New Jersey pursuant to R. 4:4-4(a) and by certified mail at his last known address out of state pursuant to R. 4:4-4(e) were unsuccessful. When plaintiffs' attorneys discovered that defendant had a standard homeowner's insurance policy in effect at the time the torts were allegedly committed, they moved under R. 4:4-4(i) to obtain substituted service on State Farm through its agent in South Orange, New Jersey. This motion apparently was denied by the trial court, but no record of the decision was furnished in connection with this appeal. Plaintiffs then moved for reconsideration of the trial court's ruling. The trial court denied this motion, reasoning that there was insufficient public
interest in this private controversy to justify substituted service on defendant's homeowner's insurance carrier under R. 4:4-4(i). The trial court did not address the issue of whether the homeowner's insurance policy provided coverage for defendant's alleged tortious acts.
If service cannot be made by any of the modes provided by this rule, any defendant may be served as provided by court order, consistent with due process of law.
The obvious intent of R. 4:4-4(i) was to provide for service in those cases where it might not otherwise be effected. There is no specific language limiting service under the rule to a particular type of case. "The utility of such a provision is significant in circumstances where usual modes of service are either impossible or unduly oppressive upon the plaintiff or where the defendant successfully evades service of process." Pressler, Current N.J. Court Rules, Comment R. 4:4-4 (1984).
In Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), the United States Supreme Court discussed the requirement that a defendant receive notice of an action in order to satisfy basic standards of due process. The Court stated:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . . The notice must be of such nature as reasonably to convey the required information, . . . and it must afford a reasonable time for those interested to make their appearance. . . . But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. "The criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, having reference to the subject with which the statute deals. . . ."
But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those ...