Plaintiffs in Alabama personal injury cases should take care to exhaust every means of serving defendants notification of a complaint before proceeding with service by publication.
That’s the lesson gleaned in Volcano Enterprises, Inc. v. Rush, recently decided by the Alabama Supreme Court. The decision effectively vacates an earlier award of $37 million in favor of a family whose choir minister husband/father was killed by a drunk, off-duty Birmingham police officer in 2009. Birmingham DUI injury lawyers know the officer received 12 years in prison on a charge of reckless manslaughter, and was also ordered to pay $3 million in civil damages. The criminal court additionally ordered him to pay $43,000 in restitution. The $37 million liability claim was against the strip club that had served alcohol that night to a patron whom plaintiffs allege was already visibly impaired by the time he arrived. He had reportedly consumed hard liquor in his vehicle while waiting for a friend to show up after their shift.
The defendant was reportedly traveling somewhere between 90- and 120-mph when he struck the victim from behind. The victim had been returning home from church.
At issue in the civil case, however, was the liability of the night club that the defendant had patronized, per the state’s Dram Shop Law. Ala. Code 6-5-71 holds that immediate family members or beneficiaries of a victim harmed by the actions of an intoxicated person have the right to sue anyone who sold, gave or otherwise provided alcohol to the intoxicated person “contrary to provisions of law.” This basically means that establishments can be held liable if staffers serve alcohol to someone who is either underage, habitually addicted, or already clearly intoxicated.
The plaintiffs had a strong case. The problem was really more of a technicality that will now serve as a cautionary tale. It’s not uncommon for defendants in civil cases to actively avoid being served notice of litigation. In doing so, they can delay the proceedings for a time. However, they can’t stall them indefinitely because plaintiffs have the option of instead providing “service through publication.” This basically means that they can publish notice of the impending lawsuit according to acceptable state standards (usually purchase of a newspaper advertisement). If the defendant still does not respond and the court determines every attempt has been made, the case can proceed.
Although the trial court judge allowed the case to proceed, upon review, the state supreme court ruled the plaintiff had not done enough to notify the defendant. The plaintiff had hired a process server who attempted to serve the bar owner/representative with court papers. However, the defendant’s personal mailing address was returned-to-sender because that location had been destroyed in a tornado. The process server also reportedly visited the club on three or four occasions in search of the defendant, but was unsuccessful.
No other action was taken before the plaintiff was allowed to provide service by publication. The defendant did not reportedly learn of the lawsuit until after the jury reached its $37 million verdict. He had not attended the trial, and therefore, had presented no defense.
The Alabama Supreme Court ruled that the actions of the process server were not exhaustive. The court further noted that it was the plaintiff who had the burden of proving the defense had actively sought to avoid service, and that burden had not been adequately met.
Volcano Enterprises, Inc. v. Rush, May 9, 2014, Alabama Supreme Court
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Posted By: Shane Weaver