ENGROSSED
Senate Bill No. 52
(By Senator Rowe)
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[Introduced January 8, 2003; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section thirty-one, article three,
chapter fifty-six of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to eliminating
the requirement of a one hundred-dollar bond on out-of-state
defendants in automobile accident cases.
Be it enacted by the Legislature of West Virginia:
That section thirty-one, article three, chapter fifty-six of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. WRITS, PROCESS AND ORDER OF PUBLICATION.
§56-3-31. Actions by or against nonresident operators of motor
vehicles involved in highway accidents; appointment
of secretary of state, insurance company, as agents;
service of process.
(a) Every nonresident, for the privilege of operating a motor
vehicle on a public street, road or highway of this state, either
personally or through an agent, appoints the secretary of state, or
his or her successor in office, to be his or her agent or
attorney-in-fact upon whom may be served all lawful process in any
action or proceeding against him or her in any court of record in
this state arising out of any accident or collision occurring in
the state of West Virginia in which the nonresident was involved:
Provided, That in the event process against a nonresident defendant
cannot be effected through the secretary of state, as provided by
this section, for the purpose only of service of process, the
nonresident motorist shall be considered to have appointed as his
or her agent or attorney-in-fact any insurance company which has a
contract of automobile or liability insurance with the nonresident
defendant.
(b) For purposes of service of process as provided in this
section, every insurance company shall be considered the agent or
attorney-in-fact of every nonresident motorist insured by that
company if the insured nonresident motorist is involved in any
accident or collision in this state and service of process cannot
be effected upon the nonresident through the office of the
secretary of state. Upon receipt of process as provided in this
section, the insurance company may, within thirty days, file an
answer or other pleading or take any action allowed by law on behalf of the defendant.
(c) A nonresident operating a motor vehicle in this state,
either personally or through an agent, is considered to acknowledge
the appointment of the secretary of state, or, as the case may be,
his or her automobile insurance company, as his or her agent or
attorney-in-fact, or the agent or attorney-in-fact of his or her
administrator, administratrix, executor or executrix in the event
the nonresident dies, and furthermore is considered to agree that
any process against him or her or against his or her administrator,
administratrix, executor or executrix, which is served in the
manner provided in this section, shall be of the same legal force
and validity as though the nonresident or his or her administrator,
administratrix, executor or executrix were personally served with
a summons and complaint within this state.
Any action or proceeding may be instituted, continued or
maintained on behalf of or against the administrator,
administratrix, executor or executrix of any nonresident who dies
during or subsequent to an accident or collision resulting from the
operation of a motor vehicle in this state by the nonresident or
his or her duly authorized agent.
(d) At the time of filing a complaint against a nonresident
motorist who has been involved in an accident or collision in the
state of West Virginia and before a summons is issued on the
complaint, the plaintiff, or someone for him or her, shall execute a bond in the sum of one hundred dollars before the clerk of the
court in which the action is filed, with surety to be approved by
the clerk, conditioned that on failure of the plaintiff to prevail
in the action he or she will reimburse the defendant, or cause the
defendant to be reimbursed, the necessary expense incurred in the
defense of the action in this state. Upon the issue of a summons
the clerk shall certify thereon that the bond has been given and
approved.
(e) (d) Service of process upon a nonresident defendant shall
be made by leaving the original and two copies of both the summons
and complaint, together with the bond certificate of the clerk, and
the fee required by section two, article one, chapter fifty-nine of
this code with the secretary of state, or in his or her office, and
the service shall be sufficient upon the nonresident defendant or,
if a natural person, his or her administrator, administratrix,
executor or executrix: Provided, That notice of service and a copy
of the summons and complaint shall be sent by registered or
certified mail, return receipt requested, by the secretary of state
to the nonresident defendant. The return receipt signed by the
defendant or his or her duly authorized agent shall be attached to
the original summons and complaint and filed in the office of the
clerk of the court from which process is issued. In the event the
registered or certified mail sent by the secretary of state is
refused or unclaimed by the addressee or if the addressee has moved without any forwarding address, the registered or certified mail
returned to the secretary of state, or to his or her office,
showing on the mail the stamp of the post office department that
delivery has been refused or not claimed or that the addressee has
moved without any forwarding address, shall be appended to the
original summons and complaint and filed in the clerk's office of
the court from which process issued. The court may order any
reasonable continuances to afford the defendant opportunity to
defend the action.
(f) (e) The fee remitted to the secretary of state at the time
of service shall be taxed in the costs of the proceeding. The
secretary of state shall keep a record in his or her office of all
service of process and the day and hour of service of process.
(g) (f) In the event service of process upon a nonresident
defendant cannot be effected through the secretary of state as
provided by this section, service may be made upon the defendant's
insurance company. The plaintiff shall file with the clerk of the
circuit court an affidavit alleging that the defendant is not a
resident of this state; that process directed to the secretary of
state was sent by registered or certified mail, return receipt
requested; that the registered or certified mail was returned to
the office of the secretary of state showing the stamp of the post
office department that delivery was refused or that the notice was
unclaimed or that the defendant addressee moved without any forwarding address; and that the secretary of state has complied
with the provisions of subsection (e) (d) of this section. Upon
receipt of process the insurance company may, within thirty days,
file an answer or other pleading and take any action allowed by law
in the name of the defendant.
(h) (g) The following words and phrases, when used in this
article, for the purpose of this article and unless a different
intent on the part of the Legislature is apparent from the context,
have the following meanings:
(1) "Duly authorized agent" means and includes, among others,
a person who operates a motor vehicle in this state for a
nonresident as defined in this section and chapter, in pursuit of
business, pleasure or otherwise, or who comes into this state and
operates a motor vehicle for, or with the knowledge or acquiescence
of, a nonresident; and includes, among others, a member of the
family of the nonresident or a person who, at the residence, place
of business or post office of the nonresident, usually receives and
acknowledges receipt for mail addressed to the nonresident.
(2) "Motor vehicle" means and includes any self-propelled
vehicle, including a motorcycle, tractor and trailer, not operated
exclusively upon stationary tracks.
(3) "Nonresident" means any person who is not a resident of
this state or a resident who has moved from the state subsequent to
an accident or collision and among others includes a nonresident firm, partnership, corporation or voluntary association, or a firm,
partnership, corporation or voluntary association that has moved
from the state subsequent to an accident or collision.
(4) "Nonresident plaintiff or plaintiffs" means a nonresident
who institutes an action in a court in this state having
jurisdiction against a nonresident in pursuance of the provisions
of this article.
(5) "Nonresident defendant or defendants" means a nonresident
motorist who, either personally or through his or her agent,
operated a motor vehicle on a public street, highway or road in
this state and was involved in an accident or collision which has
given rise to a civil action filed in any court in this state.
(6) "Street", "road" or "highway" means the entire width
between property lines of every way or place of whatever nature
when any part of the street, road or highway is open to the use of
the public, as a matter of right, for purposes of vehicular
traffic.
(7) "Insurance company" means any firm, corporation,
partnership or other organization which issues automobile
insurance.
(i) (h) The provision for service of process in this section
is cumulative and nothing contained in this section shall be
construed as a bar to the plaintiff in any action from having
process in the action served in any other mode and manner provided by law.