Robert P. Fitzsimmons John M. Wilson
William E. Parsons, II Daniel C. Cooper
Fitzsimmons & Parsons, L.C. Steptoe & Johnson
Wheeling, West Virginia Clarksburg, West Virginia
and Attorneys for the Appellants
Joseph J. John
Louis J. John
John & John
Wheeling, West Virginia
Attorneys for the Appellee
JUSTICE BROTHERTON delivered the Opinion of the Court.
JUSTICE NEELY dissents and reserves the right to file a dissenting opinion.
1. The service of process provisions of Rule 4(d)(6)(D)
of the West Virginia Rules of Civil Procedure can be used on
domestic public corporations, which include state agencies, that
are not otherwise covered in Rule 4(d)(6)(A) through (C) of the
Rules of Civil Procedure.
2. Under W. Va. Code, 31-1-15, the Secretary of State
is the authorized attorney-in-fact to accept service of process on
public corporations and agencies pursuant to the provisions of Rule
4(d)(6)(D) of the West Virginia Rules of Civil Procedure.
3. Service of process on a secretarial employee in a
public corporation or agency is insufficient to constitute service
on the public corporation or agency absent a clear showing that
such individual had been delegated by the corporation or agency to
4. "When a court undertakes to analyze a Rule 60(b)
motion on grounds (1), (2), (3), or (6) of the Rule, it must
determine first if the motion has been filed within eight months
after the judgment was entered and then determine, under all the
circumstances, if it was filed within a reasonable time." Syllabus
point 2, Savas v. Savas, 181 W.Va. 316, 382 S.E.2d 510 (1989).
5. "In determining whether a default judgment should be
entered in the face of a Rule 6(b) motion or vacated upon a Rule
60(b) motion, the trial court should consider: (1) The degree of
prejudice suffered by the plaintiff from the delay in answering;
(2) the presence of material issues of fact and meritorious
defenses; (3) the significance of the interests at stake; and
(4) the degree of intransigence on the part of the defaulting
party." Syllabus point 3, Parsons v. Consolidated Gas Supply
Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979).
6. "Appellate review of the propriety of a default
judgment focuses on the issue of whether the trial court abused its
discretion in entering the default judgment." Syllabus point 3,
Hinerman v. Levin, 172 W.Va. 777, 310 S.E.2d 843 (1983).
7. "'A motion to vacate a default judgment is addressed
to the sound discretion of the court and the court's ruling on such
motion will not be disturbed on appeal unless there is a showing of
an abuse of such discretion.' Syl. pt. 3, Intercity Realty Co. v.
Gibson, 154 W.Va. 369, 175 S.E.2d 452 (1970)." Syllabus point 4,
Hinerman v. Levin, 172 W.Va. 777, 310 S.E.2d 843 (1983).
8. An attorney's negligence will not serve as the basis for setting aside a default judgment on grounds of "excusable neglect."
The appellants, Everett Berryman and the West Virginia
Department of Transportation, Division of Highways, appeal from a
December 13, 1990, order of the Circuit Court of Brooke County
denying their motion to set aside default judgments which were
entered against them by that court on June 21 and July 6, 1990.
On September 19, 1989, the appellee, Mary White, was
injured when her automobile was struck by a large steam roller
driven by Berryman. The roller was being unloaded by a West
Virginia Department of Highways crew when its brakes failed.See footnote 1 The
appellee suffered a ruptured disc, which eventually required
Attorneys for the appellee initially submitted a
settlement brochure to the State's insurer, CNA Insurance Company,
proposing a $95,000 settlement to the appellee for the injuries she
suffered in the accident. Included with the settlement brochure
was a copy of the complaint which the appellee intended to file in
circuit court if a settlement was not reached. There were several
subsequent conversations between CNA adjusters and one of the
appellee's attorneys, Joseph J. John, requesting additional claim
information. However, the insurance company made no settlement
offer until May 7, 1990, when CNA adjuster Nancy MosesSee footnote 2 responded
with an offer of $3,600. The appellee considered this an
inadequate offer, and filed suit in the Circuit Court of Brooke
County on May 15, 1990, demanding judgment against Berryman and the
West Virginia Department of Transportation, Division of Highways,
in an amount in excess of $200,000 as compensatory damages.
Berryman received personal service via a Brooke County
deputy sheriff, who served Berryman's wife. She, in turn,
delivered the documents to Berryman on the evening of May 15, 1990.
Initially, the appellee requested that the West Virginia Department
of Transportation, Division of Highways, be served through the
Secretary of State. However, by letter dated May 18, 1990, the
Brooke County Circuit Clerk's office advised appellee's counsel
that the Secretary of State was no longer authorized to accept
service on behalf of state agencies.See footnote 3 Thereafter, the Sheriff of
Kanawha County was directed to serve the complaint, summons,
interrogatories, and requests for production of documents on Arthur
L. Gleason, Jr., Supersecretary of the Department of
Transportation. A deputy sheriff delivered these documents to Kim
Miller, Gleason's secretary, on June 4, 1990. Ms. Miller forwarded
them to the Administrative Assistant of the Department of
Transportation, Phyllis Holmes, who placed them on Supersecretary
The documents were examined by Gleason on June 5, 1990.
The envelope was marked "Legal Documents," and the summons was
marked "ORIGINAL" in large boldface black print. The summons
warned that a default judgment would be taken if no answer or other
pleading was filed within thirty days.
On June 21, 1990, and July 6, 1990, default judgments for
sums uncertain were entered against Berryman and the West Virginia
Department of Transportation, Division of Highways, respectively.See footnote 4
In an affidavit, Berryman later claimed that, based upon advice he
received from his attorney, Ron Tucker, who was representing him in
another matter, "he believed that the documents he had received did
not require a response on his part since he assumed that he would
be defended by an attorney representing the State Department of
Transportation." The appellants' counsel categorizes Berryman's
inaction as being the result of "misunderstanding, mistake or
inadequate advice." We note, however, that the appellants did not
introduce either an affidavit or testimony from Ron Tucker to
corroborate Berryman as to exactly what advice was offered by
To explain its failure to respond to the summons and
complaint, the Department of Transportation states that when
Supersecretary Gleason first noticed the legal documents on his
desk on June 5, 1990, he believed they were simply copies of a
summons and complaint which had been directed to his office for
informational purposes, because he did not normally receive the
original pleadings when the Department of Transportation was served
with process. The appellants state that on the two previous
occasions when the newly formed Department of Transportation had
been served with process, the originals were directed to the
Department's legal division: "Consequently, Secretary Gleason
mistakenly assumed that the matter was being handled by the legal
department and did nothing to assure the appropriate action would
be taken to defend the suit. Secretary Gleason did not notify CNA
that a suit had been filed."
Unaware that a suit had been filed and that default judgments had been entered, CNA claims representative, R. Alan Mellott,See footnote 5 sent a letter to Mr. John on July 18, 1990, in which he inquired about the outstanding settlement offer. By letter dated July 20, 1990, and received by CNA on July 24, 1990, Mr. John informed Mr. Mellott as follows: "Please be advised that the $3,600 offer of settlement was rejected per the telephone conference with Ms. Moses and CNA was advised that we would proceed accordingly." (Emphasis added.) Mr. John did not mention the entry of the default judgment orders or the hearing on the writ of inquiry to determine damages which was scheduled for July 25, 1990.
However, Mr. Mellott contacted Mr. John once again on
August 13, 1990. At this time, Mr. John told him that the appellee
would settle the claim for $75,000, and he also told Mellott that
default judgments had been entered in the case. According to the
appellants, this was the first time a CNA representative was
notified about the lawsuit and the default judgments, and they were
still unaware of the pending hearing on the writ of inquiry, which
had been rescheduled and was now set for August 23, 1990.
On August 16, 1990, Mr. Mellott contacted Wheeling
attorney Paul T. Tucker and asked him to investigate the matter
further. Mr. Tucker claims that he was able to confirm through the circuit clerk's office only that default judgment orders had been
entered and that a hearing on the writ of inquiry would be
scheduled. However, the appellee states that the Brooke County
Courthouse file contained not only the default judgment order, but
also an order scheduling the hearing on the writ of inquiry, which
had originally been set for July 25, 1990, but was continued to
August 23, 1990.See footnote 6
On August 17, 1990, Mr. Tucker contacted Mr. Mellott and
advised him of the default judgment orders and "that a hearing on
Writ of Inquiry would be scheduled in the matter." Mr. Mellott
subsequently delivered the claim file to Tucker so that he could
represent the appellants. However, according to the appellee, "no
notice of appearance or any other type of notice indicating an
attorney's representation was ever filed and/or served and/or
mentioned until the appellants filed a motion to set aside the
default judgments almost two months later, on October 8, 1990.
The writ of inquiry was tried to a jury on August 23,
1990. No one representing the appellants was present, and the jury
returned a $500,000 verdict for the plaintiff. In an affidavit,
Mr. Mellott stated that he did not become aware of the $500,000
verdict until nearly a month later, on September 21, 1990. On
September 25, 1990, the appellants retained new counsel, and a
motion to set aside the default judgment was filed on October 8,
After a full hearing, the court below denied the
appellants' motion to set aside the default judgments in a
memorandum of opinion dated November 15, 1990, and in a subsequent
order dated December 13, 1990. The court concluded that under the
circumstances presented by the appellants in their affidavit, this
case did not fall within the provisions of Rule 60(b) of the West
Virginia Rules of Civil Procedure, which allows a court the
discretion to set aside a default judgment.
The critical question in this case is whether service
made on a secretarial employee is sufficient to constitute adequate
service upon a state agency which is the named defendant.See footnote 7
Encompassed within this question is the further inquiry of how
service of process should be made on a state agency. We address
this latter question first.
Rule 4(d)(6) of the West Virginia Rules of Civil Procedure specifies how service can be made upon domestic public corporations. It provides:
(6) Domestic Public Corporations. --
(A) Upon a city, town, or village, by
delivering a copy of the summons and of the
complaint to its mayor, city manager,
recorder, clerk, treasurer, or any member of
its council or board of commissioners;
(B) Upon a county court of any county or
other tribunal created to transact county
business, by delivering a copy of the summons
and of the complaint to any commissioner or
the clerk thereof or, if they be absent, to
the prosecuting attorney of the county;
(C) Upon a board of education, by
delivering a copy of the summons and of the
complaint to the president or any member
thereof or, if they be absent, to the
prosecuting attorney of the county;
(D) Upon any other domestic public
corporation, (A) by delivering a copy of the
summons and of the complaint to any officer,
director, or governor thereof, or (B) by
delivering copies thereof to an agent or
attorney in fact authorized by appointment or
by statute to receive or accept service in its
The historical development of this rule is mentioned in
M. Lugar & L. Silverstein, West Virginia Rules 47 (1960):
Rule 4(d)(6) of the West Virginia Rules corresponds generally to paragraphs (5) and (6) in the Federal Rule, but the West Virginia provision is much more detailed. This Rule is intended not to alter the former practice as set forth in Code 56-3-13 except for the addition of clause (D). In clause (B) the phrase 'or other tribunal created to transact county business' is added to the Code to conform with the State Constitution, art. VIII, sec. 24. (Emphasis added).
Prior to the adoption of the Rules of Civil Procedure, W.Va. Code
§ 56-3-13 (1931) outlined the various procedures for serving a
city, county, or board of education and also included the procedure
for serving a domestic corporation.See footnote 8 There was no specific
statutory provision with regard to service of process on a state
agency. This was probably due to the fact that under the State's
constitutional immunity in Article VI, Section 35 of our
Constitution,See footnote 9 it made little sense to provide for service of
process on a state agency. However, with the adoption of W.Va.
Code § 29-12-5 in 1957, which foreclosed an insurance carrier that
insured a state agency from asserting the sovereign immunity
defense, a limited right to sue the State came into being.See footnote 10 See
generally Pittsburgh Elevator Co. v. The West Virginia Bd. of
Regents, 172 W. Va. 743, 310 S.E.2d 675 (1983).
When the Rules of Civil Procedure were adopted in 1960,
the service of process provisions in subparagraph 4 of W.Va. Code
§ 56-3-13(d) relating to service of process on domestic
corporations were placed in Rule 4(d)(5).See footnote 11 As discussed by M.
Lugar & L. Silverstein, supra at 47, with the advent of Rule
4(d)(6)(D), relating to service "[u]pon any other domestic public
corporation," a new service of process method was established.
This rule provides a means of service upon a domestic public
corporation other than those mentioned in Rule 4(d)(6)(A) through
(C). This conclusion is buttressed by the fact that all of the
entities mentioned in Rule 4(d)(6) are public corporations.See footnote 12
It cannot be doubted that the Department of Highways is a public corporation as stated in W.Va. Code § 17-2-1: "The state road commission of West Virginia, heretofore created and existing as a corporation, shall be and is hereby continued . . . ."See footnote 13 The term "public corporation" has a well-recognized legal significance and is generally held to be one created by the State for political purposes and to act as an agency in the administration of government. We gave this explanation in State ex rel. Sams v. Ohio Valley General Hospital Association, 149 W. Va. 229, 140 S.E.2d 457, 460 (1965), in which we quoted this language from Levin v. Sinai Hospital of Baltimore City, 186 Md. 174, 46 A.2d 298 (1946): "'A public corporation is an instrumentality of the State, founded and owned by the State in the public interest, supported by public funds, and governed by managers deriving their authority from the State.'" See also Meisel v. Tri-State Airport Authority, 135 W. Va. 528, 64 S.E.2d 32 (1951).
Thus, we conclude that the service of process provisions
of Rule 4(d)(6)(D), can be used on domestic public corporations,
which include state agencies, that are not otherwise covered in
Rule 4(d)(6)(A) through (C).
It is to be noted that Rule 4(d)(6)(D) provides two methods of service of process. It can be served upon "any officer, director, or governor thereof" or upon "an agent or attorney in fact authorized by appointment or by statute to receive or accept service in its behalf." We believe that under this language and the provisions of W.Va. Code § 31-1-15, service on a domestic public corporation can be accomplished by serving the Secretary of State. The language of W.Va. Code § 31-1-15 states that "[t]he secretary of state is hereby constituted the attorney-in-fact for and on behalf of every corporation created by virtue of the laws of this State[.]"See footnote 14 The phrase "every corporation created by virtue of the laws of this State" in W.Va. Code § 31-1-15 is sufficiently comprehensive to include a public corporation or agency authorized
by the legislature.See footnote 15 We, therefore, conclude that under W.Va.
Code § 31-1-15, the Secretary of State is the authorized attorney-in-fact to accept service of process on public corporations and
agencies pursuant to the provisions of Rule 4(d)(6)(D) of the Rules
of Civil Procedure.
Having established the procedure for service of process
on a public corporation, we address the service in this case. Here
the service was attempted by serving Mr. Gleason, who was the
Secretary of the Department of Transportation, which includes the
Division of Highways. There is no dispute that this was a proper
official for service under Rule 4(d)(6)(D). However, service was
not made upon Mr. Gleason. Rather, the deputy sheriff served the
papers upon Mr. Gleason's secretary, who forwarded them to Ms.
Holmes, his administrative assistant, who placed them on Mr.
Gleason's desk. Mr. Gleason's affidavit indicates that he was
unaware of their legal purport and thought that copies had been
given to the legal division.
We have found cases where the courts have considered
whether in a suit against a public corporation or official, service
of process upon a secretary is adequate. These courts conclude
that service on a secretarial employee is insufficient to
constitute valid service absent a showing that such person was
authorized to accept service. See, e.g., Franz v. Board of Educ.
of Elwood Union Free Dist., 112 A.D.2d 934, 492 N.Y.S.2d 452
(1985); Brakkee v. Rudnick, 409 N.W.2d 326 (N.D. 1987); Nitardy v.
Snohomish County, 105 Wash.2d 133, 712 P.2d 296 (1986); Meadowdale
Neighborhood Committee v. City of Edmonds, 27 Wash.App. 261, 616
P.2d 1257 (1980).See footnote 16 A similar rule exists in the federal system
under its service of process statute as to serving state public
corporations. See, e.g., Richards v. New York State Dept. of
Correctional Services., 572 F.Supp. 1168 (S.D.N.Y. 1983); Miree v.
United States, 490 F.Supp. 768 (N.D.Ga. 1980).
Thus, we conclude that service of process on a secretary
in a public corporation or agency is insufficient to constitute
service on the public corporation or agency absent a clear showing
that such individual was delegated by the corporation or agency to
This conclusion would render the default judgment against
the West Virginia Department of Transportation invalid. However,
this same conclusion cannot be reached with regard to Berryman, who
was served at his home by delivering a copy of the summons and
complaint to his wife on May 15, 1990. There is no question that
under Rule 4(d)(1)(A), service of process upon an individual who is
not incompetent or under a disability can be made "by delivering a
copy of the summons and complaint to him personally, or by
delivering . . . [the same] at his dwelling house or usual place of
abode to a member of his family above the age of sixteen (16)
Berryman's affidavit states that upon his return from
work on May 15, 1990, his wife showed him the suit papers. His
affidavit states that "upon examining the documents, he determined
that they were legal documents naming him in connection with a
lawsuit brought by Mary E. White[.]" Berryman then goes on to
state that he sought the advice of a Fairmont attorney who told him
that a response was not necessary since he would be defended by an
attorney representing the Department of Transportation. No
affidavit was submitted from the attorney.
This was the only statement made to show excusable
neglect on the part of Berryman. Not only does it lack factual
details, but it leaves the obvious question as to why he would not
have mentioned the suit to his superiors in the local highway
office. His affidavit clearly indicates that he was aware of the
legal consequences of the suit.
The remainder of this opinion concerning the single
appellant, Berryman, would also apply as to the Division of
Highways had we determined that there was proper service.
Rule 60(b) states, in part, that "[o]n motion and upon
such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding for the
following reasons: (1) Mistake, inadvertence, surprise, excusable
neglect, or unavoidable cause; . . . ." "When a court undertakes
to analyze a Rule 60(b) motion on grounds (1), (2), (3), or (6) of
the Rule, it must determine first if the motion has been filed
within eight months after the judgment was entered and then
determine, under all the circumstances, if it was filed within a
reasonable time." Syl. pt. 2, Savas v. Savas, 181 W.Va. 316, 382
S.E.2d 510 (1989). There is no question that Berryman filed his
60(b) motion within eight months of the entry of the default
judgment orders. However, given the circumstances present in this
case, we do not find that his motion was filed within a reasonable
In Parsons v. Consolidated Gas Supply Co., 163 W.Va. 464,
256 S.E.2d 758, 762 (1979), this Court "established as a basic
policy that cases should be decided on their merits, and
consequently default judgments are not favored and a liberal
construction should be accorded a Rule 60(b) motion to vacate a
default order." However, we also recognized that "[u]nder both the
West Virginia and Federal Rules of Civil Procedure, there is the
necessity to show some excusable or unavoidable cause to explain
the delay in answering. Obviously, the stronger the excusable
neglect or good cause shown, the more appropriate it is to give
relief against the default judgment." Id. The factors that should
be considered in an excusable neglect inquiry were expanded by this
Court in Parsons. In syllabus point 3, we stated that:
In determining whether a default judgment should be entered in the face of a Rule 6(b) motion or vacated upon a Rule 60(b) motion, the trial court should consider: (1) The degree of prejudice suffered by the plaintiff from the delay in answering; (2) the presence of material issues of fact and meritorious defenses; (3) the significance of the interests at stake; and (4) the degree of intransigence on the part of the defaulting party.
The appellant argues that the lower court erred when it
did not find that their failure to respond to the suit filed
against Berryman resulted from mistake, inadvertence, or excusable
neglect, as recognized by Rule 60(b). We disagree. In syllabus
point 3 of Hinerman v. Levin, 172 W.Va. 777, 310 S.E.2d 843 (1983),
we stated that "[a]ppellate review of the propriety of a default
judgment focuses on the issue of whether the trial court abused its
discretion in entering the default judgment." "'A motion to vacate
a default judgment is addressed to the sound discretion of the
court and the court's ruling on such motion will not be disturbed
on appeal unless there is a showing of an abuse of such
discretion.' Syl. pt. 3, Intercity Realty Co. v. Gibson, 154 W.Va.
369, 175 S.E.2d 452 (1970)." Id. at syl. pt. 4. We find no abuse
of discretion by the trial court in entering default judgment
Berryman's sole justification is that an attorney
informed him to disregard the suit papers. It is generally held
that an attorney's negligence will not serve as the basis for
setting aside a default judgment on grounds of "excusable neglect."
In Badalow v. Evenson, 62 Mich.App. 750, 233 N.W.2d 708, 710
(1975), the Michigan Court of Appeals stated that it is "virtually
axiomatic" that the "neglect or omission of a defendant's attorney
does not constitute adequate grounds for setting aside a default
judgment." In DeClark v. Tribble, 276 Ark. 316, 637 S.W.2d 526
(1982), an attorney stated that he had prepared a timely answer,
but that due to his secretary's negligence, it was not brought to
his attention again until four days after it was due. The Arkansas
Supreme Court refused to characterize this inaction as "excusable
neglect:" "If such carelessness is excusable, then any attorney
can shift the responsibility for filing any pleading to his
secretary by simply dictating the pleading and dismissing the
matter from his mind. Id. at 527.See footnote 17 See Annot., 64 A.L.R. 4th
323, 340 (1988).
Another factor mitigating against relief is the
attorney's subsequent failure to do anything at all upon becoming
aware of the default judgments. This cannot be overlooked, and it
certainly will not be condoned. It is inconceivable to this Court
that the appellant's attorney would act in so cavalier a manner as
to fail to inquire further upon learning that default judgment had
been entered against Berryman and that a hearing on a writ of
inquiry would soon be scheduled. The appellee certainly was not
obligated to keep the appellant abreast of all developments in this
case, but Mr. John did tell Mr. Mellott about the default judgments
on August 13, 1990, in advance of the hearing on the writ of
inquiry. Mr. Paul Tucker was aware on August 17, 1990, that a writ
of inquiry was still pending, but he apparently never ascertained
the date of the hearing, which was held on August 23, 1990, nor did
he put the appellee on notice that he was representing the parties
by filing notice of appearance with the court and having it made
part of the record.
Certainly, when Berryman first learned that default
judgment had been entered against him, he should have moved
immediately to have the order set aside, or at least filed a notice
of appearance. This would have been a rational, reasonable
response, indicating that the appellant had some degree of interest
in the proceedings which were going forward without him. It would
have at the very least enabled him to defend against the writ of
inquiry. Instead, however, counsel for the appellant was
In spite of the fact that he knew that a hearing on the
writ of inquiry was pending at least a week before it was actually
held, the appellant maintains that he did not become aware of the
$500,000 verdict against him for over a month.See footnote 18 Thus, a motion
to set aside the default judgment was the first action the
appellant took in this case, and it was not filed until October 8,
1990, nearly two months after the appellant first became aware that
the default judgment order had been entered against him, and over
three months after the order was actually entered.
In Hinerman, supra, this Court stated that although we are "quite willing to review default judgments and to overturn them in cases where good cause is shown, a demonstration of such good cause is a necessary predicate to our overruling a lower court's exercise of discretion." Hinerman, 310 S.E.2d at 848. In this case, the appellants have made no demonstration of "good cause" that would warrant overruling the lower court's exercise of its discretion in refusing to set aside the default judgments.
We find that the default judgment against Berryman is
valid. However, he was an employee of the West Virginia Department
of Transportation, Division of Highways, and the Department's
insurance carrier had undertaken representation of him, as
evidenced by the settlement negotiations and the employment of
attorneys to file Rule 60(b) motions for both appellants. The
gravamen of this case is the size of the verdict. In light of the
amount of the settlement offers and the provable special damages,
this sizeable verdict obviously resulted from the failure of the
appellants' attorneys to immediately make an appearance on the
record, which would have entitled them to notice of the writ of
inquiry. At the very least, they could have contested the
appellee's evidence. Therefore, we conclude that the Division of
Highways' insurance carrier is responsible for the judgment against
For the foregoing reasons, the December 13, 1990, order
of the Circuit Court of Brooke County is affirmed in part and
reversed in part, and this case is remanded for entry of an order
consistent with this opinion.
Footnote: 1The appellee indicates that in the official accident report, Berryman stated that the collision occurred because of the steam roller's inoperable brakes.
Footnote: 2Nancy Moses was the claims representative who was assigned to handle Mary White's claim against the Department of Transportation from November 20, 1989, until June 20, 1990.
Footnote: 3Rule 4 of the West Virginia Rules of Civil Procedure does not specifically address the service of process upon a State agency. West Virginia Code §§ 56-3-13, 14, and 15 explain only how service of process may be made upon domestic and foreign corporations and other common carriers.
Rule 4(d)(6) of the Federal Rules of Civil Procedure
provides that service shall be made:
[u]pon a state or municipal corporation or other governmental organization thereof subject to suit, by delivering a copy of the summons and of the complaint to the chief executive officer thereof or by serving the
summons and complaint in the manner
prescribed by the law of that state for the
service of summons or other like process upon
any such defendant. (Emphasis added.)
Footnote: 4Both default judgment orders contained notice that a hearing on a writ of inquiry to determine the amount of damages sustained by the plaintiff was scheduled to be held at 9:00 a.m. on July 25, 1990.
Footnote: 5Mr. Mellott was assigned to handle Mary White's claim on July 13, 1990.
Footnote: 6The appellants argue that because the order scheduling the hearing for August 23, 1990, is also dated August 23, 1990, it is not clear from the record whether the hearing was on the court's schedule or if the order was actually in the file when Mr. Tucker made his inquiry in the clerk's office.
Footnote: 7In paragraph 10 of the defendant's motion to set aside the default judgment, this claim is asserted:
[The] attempt to serve process upon the W. Va. Department of Transportation by delivering a copy of a summons and complaint to the receptionist in the Department of Transportation's Office was insufficient in that it failed to put the state agency and its insurance carrier, CNA Insurance Companies (hereinafter "CNA"), on notice that they had been made a party to a civil action[.]
Footnote: 8West Virginia Code § 56-3-13 provided:
Unless otherwise specially provided,
process against, or notice to, a corporation
created by virtue of the laws of this State
may be served as follows:
(a) If a city, town or village, on its
mayor, city manager, recorder, clerk,
treasurer, or any member of its council or
board of commissioners;
(b) If a county court of any county, on
any commissioner or the clerk thereof, or if
they be absent, on the prosecuting attorney
of the county;
(c) If a board of education of any
district or independent school district, on
the president or any commissioner thereof, or
if they be absent, on the prosecuting
attorney of the county;
(d) If any other corporation, on the auditor as statutory attorney in fact of such corporation, as provided in section seventy-one, article one, chapter thirty-one [§ 31-1-71] of this Code, or on any person appointed by it to accept service of process in its behalf, or on its president or other chief officer, or its vice president, cashier, assistant cashier, treasurer, assistant treasurer, secretary, or any member of its board of directors, or, if no such officer or director be found, on any agent of such corporation, including in the case of a railroad company a depot or station agent in the actual employment of the company.
Footnote: 9Article VI, Section 35 of the West Virginia Constitution provides:
The State of West Virginia shall never be made defendant in any court of law or equity, except the State of West Virginia, including any subdivision thereof, or any municipality therein, or any officer, agent, or employee thereof, may be made defendant in any garnishment or attachment proceeding, as garnishee or suggestee.
Footnote: 10Under W. Va. Code § 29-12-5, the state board of insurance provides insurance for state agencies and the statute directs:
Any policy of insurance purchased or contracted for by the board shall provide that the insurer shall be barred and estopped from relying upon the constitutional immunity of the state of West Virginia against claims or suits: Provided, That nothing herein shall bar the insurer of political subdivisions from relying upon any statutory immunity granted such political subdivisions against claims or suits.
Footnote: 11Rule 4(d)(5) of the Rules of Civil Procedure provides:
Domestic Private Corporations. -- Upon a domestic private corporation, (A) by delivering a copy of the summons and of the complaint to an officer, director or trustee thereof; or, if no such officer, director or trustee be found, by delivering copies thereof to any agent of the corporation including, in the case of a railroad company, a depot or station agent in the actual employment of the company; but excluding, in the case of an insurance company, a local or soliciting agent; or (B) by delivering copies thereof to any agent or attorney in fact authorized by appointment or by statute to receive or accept service in its behalf.
Footnote: 12The right to alter procedural rules is expressly granted to this Court in Article VIII, Section 3 of the West Virginia Constitution, which provides: "The court shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the State relating to writs, warrants, process practice and procedure, which shall have the force and effect of law." As we stated in Stern Bros., Inc. v. McClure, 160 W. Va. 567, 236 S.E.2d 222, 226 (1977), this constitutional holding was "explicit recognition . . . of the
inherent rulemaking power of the Court . . . [that] had been utilized by this Court to adopt judicial rules." (Citations omitted).
Footnote: 13West Virginia Code § 17-2A-1 provides, in relevant part, that "[t]he office of state road commissioner heretofore existing is hereby continued in all respects as heretofore constituted, but is hereby designated as the West Virginia department of highways."
Footnote: 14The relevant portion of W.Va. Code § 31-1-15 is:
The secretary of state is hereby constituted the attorney-in-fact for and on behalf of every corporation created by virtue of the laws of this State and every foreign corporation authorized to conduct affairs or do or transact business herein pursuant to the provisions of this article, with authority to accept service of notice and process on behalf of every such corporation and upon whom service of notice and process may be made in this State for and upon every such corporation. No act of such corporation appointing the secretary of state such attorney-in-fact shall be necessary.
Footnote: 15We are aware of a November 13, 1985, letter from the Office of the Attorney General advising the Secretary of State that there was no need to accept service of process on governmental agencies as an attorney-in-fact. We find the letter's analysis to be flawed. It does not trace the development of the domestic public corporation service of process provisions in Rule 4(d)(6). It relies on Article XI, Section 1 of the West Virginia Constitution, which authorizes the legislature to provide by general law for the creation of private corporations. It then concludes that it is only these corporations for which the Secretary of State is attorney-in-fact. Article XI, Section 1 has no application to the legislative power to create public corporations and agencies. The letter does not address the public corporations created by the legislature which are entities created by the legislature and thus existing by virtue of the laws of this State.
Footnote: 16With regard to private corporations and their officers, there is a split of authority as to the validity of service of process upon the secretary or assistant of such individual. Some jurisdictions hold that such service is insufficient to confer personal jurisdiction in the absence of evidence that the secretary or assistant was authorized to accept service. See, e.g., Hauser v. Schiff, 341 So.2d 531 (Fla.App. 1977); Adams v. Gluckman, 183 Ga.App. 666, 359 S.E.2d 710 (1987); Bray v. Bayles, 228 Kan. 481, 618 P.2d 807 (1980); French v. Gabriel, 57 Wash.App. 217, 788 P.2d 569 (1990). Other jurisdictions hold that such service is sufficient where the secretary or assistant is otherwise competent to accept service and does so. See, e.g., Martin v. District Court, 150 Colo. 577, 375 P.2d 105 (1962); Merrill Chadwick Co. v. October Oil Co., 725 P.2d 17 (Colo.App. 1986); A-Z Equip. Co. v. Moody, 88 Ill.App.3d 187, 43 Ill.Dec. 438, 410 N.E.2d 438 (1980); Psathas v. Catskill Regional Off-Track Betting Corp., 173 A.D.2d 1070, 570 N.Y.S.2d 407 (1991).
Footnote: 17See generally, Comment, Service of Process - Default Judgment: A Practical Guide for the Arkansas Attorney, 40 Ark.L.Rev. 381 (1986); Note, Default Judgments in Arkansas: Allstate Insurance Co. v. Bourland, 43 Ark.L.Rev. 92 (1990).
Footnote: 18Actually, the appellants state that the CNA claims representative, Mr. Mellott, did not become aware of the $500,000 verdict until September 21, 1990. They do not indicate when their attorney, Paul Tucker, learned about the hearing or the resulting verdict.