By Sandy Eloranto, Senior Counsel, Sutton | Booker | P.C.
In 2011, the Colorado legislature amended C.R.S. § 42-7-414 (part of Colorado’s Motor Vehicle Financial Responsibility Law) to allow substituted service of a missing insured through service of the insured’s auto insurance company.
The statute first requires that the insurance company include the following provision in each auto policy:
“If the insured’s whereabouts for service of process cannot be determined through reasonable effort, the insured agrees to designate and irrevocably appoint the insurance carrier as the agent of the insured for service of process, pleadings, or other filings in a civil action brought against the insured or to which the insured has been joined as a defendant or respondent in any Colorado court if the cause of action concerns an incident for which the insured can possibly claim coverage. Subsequent termination of the insurance policy does not affect the appointment for an incident that occurred when the policy was in effect. The insured agrees that any such civil action may be commenced against the insured by the service of process upon the insurance carrier as if personal service had been made directly on the insured. The insurance carrier agrees to forward all communications related to service of process to the last-known e-mail and mailing address of the policyholder in order to coordinate any payment of claims or defense of claims that are required.”
C.R.S. § 42-7-414(3)(a). The insured, by purchasing the policy, agrees to allow the insurance company to accept service on his/her behalf. Because an insured is required to notify the carrier of any change in address, carriers should have updated contact information and be able to get in touch with an insured that cannot otherwise be located.
The following threshold issues need to be evaluated when a motion for leave to serve via substituted service is filed.
- Is the person to be served through substituted service a named insured on the policy? Resident relatives and/or permissive drivers do not sign the policy and thus do not agree to appoint the insurance company as their agent for service. Use of the statute to perfect service on anyone except the named insured(s) constitutes a violation in due process. See, Armstrong v. Alcantar et al., 2015CV32046 (El Paso County), Jan. 8, 2016 Order. See also, Shuaib v. Chen, 2015CV34144 (Denver County), Jan. 14, 2016 Order (rejecting service of rental car customer via substituted service on the rental car company); Willhite v Rodriguez-Cera, 274 P.3d 1233, 1240-41 (Colo. 2012) (en bac) (“only after determining that due process is satisfied and substituted service appropriate, does a court order [substituted service]”).
- Were reasonable efforts made to locate the insured before substituted service was requested? Due diligence and reasonable efforts must be made to serve personally before substituted service will be allowed. A single attempt to serve someone at a single address is not enough. See, Rieck v. Heard, 2015CV31148 (Boulder County), Dec. 17, 2015 Order. “Reasonable efforts” likely include hiring a PI to run a skip trace. See also, Ethics Opinion 128, Ethical Duties of Lawyer Who Cannot Contact Client (Oct. 2015).
- Does the insurance company have current contact information for the insured such that it will be able to give them actual notice of the suit? In order to satisfy C.R.C.P. 4(f), Plaintiff has to show the substituted service is “reasonably calculated to give actual notice to the party upon whom service is to be effective.” If the insured’s policy has been cancelled or if the insured no longer lives in the U.S., the insurance company may need to object to the motion for leave under Rule 4(f) explaining why it will be equally unable to track the person down. See e.g., Synan v. Haya, 15 P.3d 1117 (Colo. App. 2000) citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) and finding court erred in allowing substituted service of a driver no longer living in the US without evidence that the party will receive adequate notice and an opportunity to be heard.
- Did Plaintiff seek leave from the Court to use substituted service pursuant to C.R.C.P. 4(f)? Even though the statute was amended to allow substituted service of an insured, a party must first obtain leave of court. Failing to do so can be grounds for a motion to quash. The motion must be accompanied by an affidavit of the person attempting service and shall include details on the efforts made to obtain personal service and the reason it could not be obtained, the identity of the substituted party, and the last known address of the party being served. If the Court is satisfied that due diligence was used and the substituted service is likely to give actual notice to the party, the Court will often allow substituted service.
- Does the addition of the insured impact venue? The statute provides that the venue for the underlying claim is the same as if the defendant is a nonresident.
- Is the amount sought from the insured more than the policy limits? This could also be grounds for a motion to quash. If an insured is served under the statute, the claim against that insured is limited to the amounts recoverable under the policy. A plaintiff cannot use the statute to perfect service and then seek punitive damages or an excess verdict against the insured. C.R.S. § 42-7-414(3)(f). However, if the insured later can be located, the plaintiff is not prevented from serving the insured with a claim for excess or punitive damages.
For additional information on when substituted service of an insured through their insurance carrier is appropriate, see 8 Colo. Prac., Personal Injury Torts and Insurance § 50:32 (3d ed.) on Insurers – agents for service of process. 6 Colo. Prac., Civil Trial Practice § 3.14.10 (2d ed.) on Substituted Service.