Alabama Supreme Court Issues Ruling on Service by Publication

A $37 million verdict against a business that served alcohol to a driver who then killed a man in a DUI collision has been overturned by the Alabama Supreme Court on the grounds that notice of the lawsuit wasn’t properly served. This was despite the plaintiff’s compliance with the formalities of service by publication as approved by the trial court.

Montgomery DUI accident lawyers recognize this as a cautionary tale regarding serving a defendant by publication, and underscores the plaintiff’s burden to prove that every effort was made to serve the defendant before the case progresses.

It’s not uncommon for defendants to avoid being served with civil court papers. The theory is that if they aren’t served notice, the case can’t proceed. This is only true to an extent. The case will eventually move forward – but only if plaintiffs can prove they made every effort to serve notice on the defendant and the defendant actively hid or endeavored to avoid being served.

The case of Volcano Enterprises, Inc. v. Rush stems from a tragic and absolutely preventable crash involving an off-duty, intoxicated police officer.

The off-duty Birmingham officer met up with a colleague at a strip club shortly after their shifts had ended. According to the complaint, the defendant officer consumed a substantial amount of alcohol while sitting in a parked car in the parking lot of the club. He and his friend then went inside the club and stayed for several hours. Despite the fact that he was visibly intoxicated, the plaintiff alleges, the officer was served more alcohol and then allowed to leave.

The married father of three crashed his vehicle into another vehicle while traveling at speeds of up to 120 mph. The driver of that vehicle, a church music minister, was killed. The officer was fired and sentenced to 12 years in prison for reckless manslaughter.

The minister’s family filed a wrongful death lawsuit against both the officer, for negligence, and the club owner, under the Dram Shop Act.

Initially, plaintiffs tried to serve the club owner with notice of the lawsuit through certified mail. But the certified mail was returned. Then the plaintiffs hired a private process server. This agency determined the club’s listed address had been destroyed by a tornado. However, what the process server didn’t learn was that the defendant was still receiving mail at that address, and there was also no indication that the server launched an investigation into where the defendant was living. Instead, the process server went to the club on three or four occasions, looking for the owner.

The server’s efforts reportedly stopped there. While the trial court found this to be sufficient to proceed with a service by publication notice, the Supreme Court later ruled those efforts were minimal. Although the plaintiff did comply with service by publication guidelines, the defendant never responded.

The trial court ultimately awarded the plaintiff $40 million – $3.25 million on behalf of the officer and $37 million on behalf of the club, which had in no way defended itself.

However, less than a month after that finding, the club owner appealed, arguing that he had not been properly served notice of the lawsuit.

Ultimately, the Alabama Supreme Court agreed. The court indicated that it was up to the plaintiff to prove that the strip club’s registered agent had avoided service. This is a requirement in order to proceed with service by publication. The high court found that the plaintiff had not met this burden. Thus, the verdict was reversed and the case remanded for another trial.

The lesson here is that plaintiffs need to make sure before requesting a service by publication that all other reasonable attempts have been made to personally serve the defendant notice.

Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.

Additional Resources:
Volcano Enterprises, Inc. v. Rush, May 9, 2014, Alabama Supreme Court
More Blog Entries:
Taylor v. Biba – Technicalities in Car Accident Lawsuits, Feb. 20, 2014, Montgomery Wrongful Death Lawyer Blog

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