Allied World Surplus Lines Insurance Company v. Galen Insurance Company et al

Filing 24

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs Motion for Service by Publication (ECF No. 20 ) is GRANTED in part, and DENIED in part. IT IS FURTHER ORDERED that Plaintiff shall have an additional sixty (60) days from the date of this Order in which to continue efforts to personally serve Mr. Lowry. (Publication of Service due by 8/29/2017.) Signed by District Judge Jean C. Hamilton on 6/30/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ALLIED WORLD SURPLUS LINES
INSURANCE COMPANY,

)
)
)
Plaintiff,
)
)
v.
)
)
GALEN INSURANCE COMPANY,
)
GALEN INSURANCE MANAGEMENT )
COMPANY, INC., and DENNIS LOWRY )
)
Defendants.
)

Case No. 4:17-cv-01185-JCH

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Allied World Surplus Lines Insurance
Company’s Motion for Service by Publication, filed on June 26, 2017. (ECF No. 20.) Plaintiff
seeks leave to serve defendant Dennis Lowry by publication, stating that it has failed to obtain
personal service on Mr. Lowry despite its diligent efforts to do so.

Plaintiff alternatively

requests an additional 60 days in which to continue efforts to personally serve Mr. Lowry.
In March 2017, Plaintiff filed this action concerning certain professional liability
insurance policies it had issued to defendants Galen Insurance Company and Galen Insurance
Management Company (together, “Galen”). Plaintiff seeks to rescind those policies and, in the
alternative, to obtain a declaratory judgment that there is no coverage under the policies in
question, and that it is entitled to recovery money it has expended defending Galen, in
connection with a wrongful termination suit filed by Mr. Lowry against Galen. (ECF No. 1.)
On March 29, 2017, Plaintiff mailed to Mr. Lowry a request to waive service pursuant to
Federal Rule of Civil Procedure 4(d). Mr. Lowry failed to respond. On May 2, 2017, Plaintiff

1

requested that the Clerk of the Court issue a summons to Mr. Lowry. On May 3, 2017, the
summons was issued and Plaintiff commenced efforts to personally serve Mr. Lowry through a
process server. (ECF Nos. 5-7.) To this date, Plaintiff’s efforts have been unsuccessful.
Under Federal Rule of Civil Procedure 4(e)(1), service upon an individual may be made
pursuant to the law of the state in which the district court is located. Under Missouri law, service
by publication is “allowed in all cases affecting a fund, will, trust estate, specific property, or any
interest

therein,

or

any

res

or

status

within

the

jurisdiction

of

the

court.”

Mo. Rev. Stat. § 506.160(1). However, “service by publication will not support an in personam
judgment unless the party sought to be subjected thereto has otherwise voluntarily entered his
appearance.” Bueneman v. Zykan, 52 S.W.3d 49, 58 (Mo. App. E.D. 2001).
Plaintiff argues that this action “affects an interest in a fund, and/or seeks to determine a
‘status’ within the jurisdiction,” and that service by publication is therefore proper under section
506.160. Plaintiff further argues that “[a] declaratory judgment action regarding an insurance
policy within the jurisdiction may be an in rem or quasi in rem proceeding, with the insurance
policy deemed to be the res.” (ECF No. 21.)
The Court initially notes that Missouri Rule of Civil Procedure 54.12 requires the moving
party to file a statement verified by the party or by a person on behalf of the party stating (1)
facts showing with particularity that a reasonable effort was made to obtain personal service or
service by mail, and (2) “the last known address of the party to be served…”
Mo. R. Civ. P. 54.12(c)(2). Upon review of the affidavits attached to Plaintiff’s Motion, the
Court finds that they technically fail to state the last known address of Mr. Lowry. In any event,
the Court further finds Plaintiff’s arguments regarding the propriety of service by publication in
this matter unavailing. This insurance action is distinguishable from the types of cases in which

2

section 506.160 has previously been applied (e.g., actions in which a party seeks to quiet title to
property physically located within the jurisdiction of the Court), and Plaintiff has not cited any
relevant authority to support its proposition that application of section 506.160 is appropriate
here. Given that any statute allowing service by publication must be strictly construed, see
Miller v. Jonesburg State Bank, 174 S.W.3d 79, 81 (Mo. App. E.D. 2005), the Court declines to
read section 506.160 so as to permit such service in this case. The Court will, however, grant
Plaintiff additional time to personally serve Mr. Lowry.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Service by Publication (ECF
No. 20) is GRANTED in part, and DENIED in part.
IT IS FURTHER ORDERED that Plaintiff shall have an additional sixty (60) days
from the date of this Order in which to continue efforts to personally serve Mr. Lowry.

Dated this 30th day of June, 2017.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE 

3