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Colorado Accident & Injury Law Part V: Quasi-in-rem

August 26, 2009 by The Sawaya Law Firm

V. Quasi-in-rem issues of attachment of insurance policy for insured defendants who cannot be found for service of process.

  • Carvajal v. State Farm, Colorado Court of Appeals 08CA861 focuses on steps a Plaintiff may take to attach, and ultimately collect on an insurance policy in the event of a missing or unknown Defendant.
  • The practical implications of the case are immense, and will primarily settle the status of the law in such cases. With the ever-increasing numbers of undocumented aliens and the transient population, this case will help determine whether there is a way to access an insurance policy when a defendant cannot be found.
  • The appeal focuses on two key issues:
  1. Does service by publication in the event of a missing/unknown defendant meet due process standards?
  2. If an insurance policy may be attached, must the insurer ultimately indemnify from the proceeds of the policy if personal service cannot be obtained.

Carvajal Issues:

1. Due Process

a) The Fourteenth Amendment requires service of process to meet due process requirements, Along with Article II Section 25 of the Colorado Constitution. Rule 4(g) of the C.R.C.P. allows service by publication in certain, limited instance

i) if location is known, must serve personally, or serve in a manner reasonably calculated to provide notice

A) Synan v. Haya, 15 P.3d 1117 (Colo.App. 2000)- case where P knew D had moved to Japan for school, and published notice here in Colorado. Held service by publication ineffective

ii) if location unknown, or person is missing, service by publication permissible

B) Mullane v. Central Hanover 70 S.Ct. 652 (1950) US Supreme Court case. Notice must be reasonably calculated, but Court recognizes personal service not always effective. Service by publication acceptable in the case of missing/unknown persons

b) Facts in our case distinguishable from Synan . There, P knew defendant moved to Japan, but published notice in Colorado anyway. In our case, we have a last known address here in Colorado, yet despite numerous attempts to serve, numerous investigative tactics, etc., Defendant cannot be located

2. Indemnity from attached policy

  • Issue may not be determined in this case. Issue was not yet ripe, as case was determined before a hearing, but the issue is critical case inasmuch as the trial court said the policy could not be collected from sans personal judgment, and thus relied upon that rationale to dismiss the case

a) Baker v. Young, 798 P.2d 889 (1990) Colorado Supreme Court held an insurance policy is a property interested under C.R.C.P. 102, relying upon interpretations of the probate code, despite the contingent nature of the policy. Court stated it made no finding, re: indemnity, however the clear implication is that the indemnity should necessarily be attached

b) Synan – the second issue in Synan, after the due process issue, was whether the indemnity portion of the policy attaches. COA said no, indemnity only attaches after a judgment against the Defendant. The reasoning is inconsistent with the implication in Baker (why else would you attach an insurance policy), and circular…i.e., attachment would not be necessary if you could effect personal service.


Quasi in rem jurisdiction is the plaintiff’s suggested resolution. P does not seek a personal judgment from the D, consistent with the holding in Synan . Rather, P seeks a determination of the D’s interest in that property, specific to that piece of property and that defendant. P then may allege facts that show the P’s interest in that piece of property. P’s rights are limited to the extent of the property, the action is not tantamount to a direct action, and P need not obtain personal judgment to receive indemnity proceeds of the policy.

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