Belcher v. Government Employees Insurance

Digges, J., delivered the opinion of the Court. The present case requires this Court to determine whether, in line with the controversial procedure first announced in 1966 by the New York Court of Appeals in Seider v. Roth, 17 N.Y.2d 111 , 216 N.E.2d 312 , 269 N.Y.S.2d 99 , the courts of this State may acquire jurisdiction in a personal injury action by attaching the obligations an insurance company has to an absent defendant as a policyholder under an automobile liability insurance contract. After careful consideration of the divergent opinion presented by counsel and the numerous courts and commentators who have addressed this issue, we have concluded that it would be improper to allow garnishment procedures directed to an insurer to be used by a plaintiff for the purpose of obtaining jurisdiction over a defendant-insured. Accordingly, we will affirm the judgment of the Circuit Court for Montgomery County (Clapp, J.) quashing the writ of attachment by way of garnishment which had been served upon respondent Government Employees Insurance Company (GEICO).

Not surprisingly, the action which has prompted our consideration of the propriety of permitting such an attachment is based on factual circumstances not unlike those which were present in Seider and which have caused other courts to consider the correctness of that ruling. In mid-July of 1975 petitioner Warren Belcher was driving an automobile which was involved in a three-car chain reaction collision at an intersection in Langley Park, Maryland. The accident occurred when an automobile driven by Roger Norman Hall collided with the rear end of a second vehicle which was in turn propelled into the back end of Mr. Belcher’s car. When settlement negotiations with Roger Hall’s automobile insurance carrier — GEICO — failed, Mr. Belcher and his wife filed suit against Hall in the Circuit Court for Montgomery County claiming $150,000 in damages.

The Belchers, acting pursuant to the Maryland Rules, sought to ⁷²⁰ obtain personal service of process upon Roger Hall, but the summons was returned non est. Subsequent attempts to find Mr. Hall by way of a locator service and to gain his new address from GEICO were also unsuccessful. As a result, and concededly somewhat in desperation, the petitioners resorted to the use of the attachment procedures which have become the central concern of this appellate litigation. After amending their declaration to reduce the amount of the ad damnum clause to $20,000, the statutory minimum required for automobile insurance in Maryland, Md. Code (1977), § 17-103 (b) of the Transportation Article, the petitioners, acting pursuant to Maryland Rule G40, obtained the issuance of an attachment on original process directed toward Mr. Hall’s policy with GEICO.

When the circuit court by order quashed the attachment writ and ordered judgment entered in favor of GEICO, the petitioners appealed. We issued the requested writ of certiorari before consideration of the matter by the Court of Special Appeals. Attachment proceedings, which find their roots in this State’s right to subject all property within its borders to its laws, Coward v. Dillinger, 56 Md. 59, 60-61 (1881), serve the purpose, among others, of insuring the just payment of debts by affording creditors the opportunity to seize the property of a debtor who cannot be reached by service of process because of nonresidence or flight. Gill v. Physicians’ Etc.

Building, 153 Md. 394, 404 , 138 A. 674, 677-78 (1927). Since the court’s authority in attachment proceedings is derived from a “special and limited statutory power,” Cole v. Randall Park Holding Co., 201 Md. 616, 623 , 95 A. 2d 273, 277 (1953); see Northwestern N. Ins. v. Wetherall, 267 Md. 378, 384 , 298 A. 2d 1, 5 (1972); Killen v. American Casualty, 231 Md. 105, 108 , 189 A. 2d 103, 105-06 (1963), our analysis of whether those proceedings can be applied in this case must focus on a consideration of the relevant legislative provisions. Of primary concern is section 3-302 of the Courts Article, Md. Code (1974), which provides: A court of law including the District Court, within the limits of its jurisdiction, may issue an attachment ⁷²¹ or original process against any property or credits, whether matured or unmatured, belonging to the debtor upon the application of a person who has the right to become a plaintiff in an action in the state. For similar provisions, see Maryland Rule G40; see also Md. Code (1974), § 3-305 of the Courts Article.

The petitioners here seek to establish that GEICO possesses “property or credits” belonging to the absent Mr. Hall which are evidenced by certain provisions of the standard automobile insurance policy issued to him by GEICO; those provisions, they assert, create attachable obligations running from the insurance company to its insured. 1 More specifically, they contend that “the obligation ⁷²² of the garnishee [GEICO] to indemnify its assured for any judgment [petitioners] obtain, and [GEICO’s] obligation to provide a defense to the claim against the assured sufficiently constitute an asset within the definition of § 302 as to permit this attachment____” As support for this proposition, they direct our attention to the decision of the New York Court of Appeals in Seider v. Roth, supra, the reasoning of which, they contend, requires a similar result m the case we now consider. In Seider , in order to obtain damages for injuries sustained in a three-car accident in Vermont, two New York residents sought to use a theory identical to that of the petitioners here to attach the automobile insurance policy of one of the other drivers, a Canadian, with an insurer doing business in New York. 216 N.E.2d at 313 , 269 N.Y.S.2d at 100 . The New York Court of Appeals, interpreting the provisions of that state’s attachment statute, found the policy to be a “debt” as that term was used in the statute and thus subject to attachment. 216 N.E.2d at 314 , 269 N.Y.S.2d at 101 . While the Seider rationale has been followed in two other jurisdictions, Savchuk v. Rush, Minn., 245 N.W.2d 624, 629 (1976), vacated, 433 U. S. 902 , 97 S. Ct. 2964 , 53 L.Ed.2d 1086 (1977) (remanding for reconsideration in light of Shaffer v. Heitner, 433 U. S. 186 , 97 S. Ct. 2569 , 53 L.Ed.2d 683 (1977)); Forbes v. Boynton, 113 N. H. 617, 313 A. 2d 129, 133 (1973), on the whole it has received a decidedly cold reception from courts and commentators, 2 although the United States Court of ⁷²³ Appeals for the Second Circuit has twice upheld its constitutionality.

Minichiello v. Rosenberg, 410 F. 2d 106 (2d Cir. 1968), aff'd en banc, 410 F. 2d 117 , cert. denied, 396 U. S. 844 (1969); O'Connor v. Lee-Hy Paving Corp., 47 U.S.L.W. 2007 (2d Cir. June 12, 1978) (reaffirming constitutionality of Seider procedure in light of recent Supreme Court decision in Shaffer v. Heitner, supra, which declared that exercise of in rem and quasi-in-rem jurisdiction would now be governed by minimum contacts standard of International Shoe Co. v. Washington, 326 U. S. 310 , 66 S. Ct. 154 , 90 L. Ed. 95 (1945)). See, however, Farrell v. Piedmont Aviation, Inc., 411 F. 2d 812, 817 (2d Cir.) (constitutional doubt with respect to applying Seider in favor of nonresident plaintiffs would be “exceedingly serious”), cert. denied, 396 U. S. 840 (1969). See generally Annot, 33 A.L.R.3d 992 (1970) (collecting cases on potential liability of insurer as subject of attachment). Though within the last year the New York court has limited the availability of Seider-type attachments to resident plaintiffs, that court, while noting the widespread criticism of Seider , specifically declined to re-examine the underlying rationale of that case on the basis of stare decisis and the fact that the legislature had made no move in the eleven years since the decision to nullify or change its effect.

Donawitz v. Danek, 42 N.Y.2d 138 , 366 N.E.2d 253, 255-56 , 397 N.Y.S.2d 592, 594-95 (1977). Just as the decision in Seider depended on an interpretation of New York’s attachment statute, so does our disposition of this case depend on a proper construction of the Maryland enactment. Determinative of our conclusion in this case that GEICO’s obligation to the absent defendant under its contract of insurance may not be attached is the long-established principle that where an interest is uncertain and contingent —• in that it may never become due and payable — it is not subject to attachment as not within the scope of Maryland’s attachment statute. See Fairfax v. Savings Bank 175 Md. 136, 141 , 199 A. 872, 875 (1938); Safe D. & T. Co. v. Ind.

Brewing Asso., 127 Md. 463, 468-69 , 96 A. 617, 619 (1916); Suskin & Berry v. Rumley, 37 F. 2d 304, 306 (4th Cir. 1930) (interpreting Maryland law). In Fairfax , with ⁷²⁴ the attachment statute reading substantially the same as it does today, we considered whether a husband’s interest in a trust was attachable, and concluded: By the plain language of the declaration of trust the interest of the husband in the corpus of the trust is contingent upon his survival of his wife.. So, the-interest is uncertain and contingent in the sense that none of the deposit or trust may ever become due and payable to the husband. Such an interest is not subject to attachment as it is not within the scope of [the attachment statute, Code (1924), Art. 9, § 10].

The language of the court in Safe Deposit & Trust Co. v. Independent Brewing Assn., 127 Md. 463 , [468, 96 A. 617, 619 ], is