that the clause in question is an integral part of the policy issued to the plaintiff and is, therefore, supported by the original consideration.
Many States, as a condition precedent to permitting an insurance company to engage in business therein, require it to designate an agent, or a public official, usually the Insurance Commissioner, upon whom service of process may be made. Pennsylvania has such a requirement under the Act of 1921, May 17, P.L. 682, Art, III, § 301, 40 P.S. § 421, which deals with the requisites for foreign insurance companies to do business in the State, and the Act of 1921, May 17, P.L. 789, Art. II, § 210, as amended, 40 P.S. § 48, relating to service of process upon the Insurance Commissioner.
By the second paragraph of the above 'service of suit clause,' the defendant, without actually registering, sought to give the assured the same right to sue the defendant in Pennsylvania (or in any other State which has a similar statute) by service of process upon the Insurance Commissioner as if the defendant had actually registered to do business in this State. It was designed to assure the insured that it would not have to travel to the domicile of the defendant to assert its legal rights under the policy and must be construed so as to carry out that intention. Service upon the Insurance Commissioner of Pennsylvania is, therefore, in conformity with the Federal Rules of Civil Procedure, Rule 4(d)(3), 28 U.S.C. which in the case of a foreign corporation provides for service upon its 'agent authorized by appointment or by law to receive service of process * * *.' Such service removes all questions as to jurisdiction of the person. Kenny v. Alaska Airlines, Inc., D.C.S.D.Cal.1955, 132 F.Supp. 838; Neirbo Company v. Bethlehem Shipbuilding Corporation, 1939, 308 U.S. 165, 60 S. Ct. 153, 84 L. Ed. 167; Owens v. Harkins, D.C.M.D.A.la.1955, 18 F.R.D. 62. The designation of the Insurance Commissioner as agent for service in the State amounts also to a consent to be sued in the United States District Court. Mississippi Pub. Corporation v. Murphree, 1946, 326 U.S. 438, 66 S. Ct. 242, 90 L. Ed. 185.
By the first paragraph of the service of suit clause, the defendant agreed to submit to the jurisdiction of any Court of competent jurisdiction in the United States. We are of the opinion that by it defendant has waived its right to object to venue or to any irregularity or defect in the service of process. Compare Petrowski v. Hawk-eye-Security Insurance Company, 1956, 350 U.S. 485, 76 S. Ct. 490, 100 L. Ed. 639, where a stipulation by which the defendant voluntarily submitted to the jurisdiction of the Court was held to be a waiver of the defendant's right to assert a lack of personal jurisdiction. There would seem to be little reason for distinguishing a stipulation from a solemn agreement to submit executed prior to suit where the defendant was notified of the proceedings and appeared to contest the action. See, Restatement, Judgments, § 18, comment(c).
The Pennsylvania Unauthorized Insurers' Process Act of 1949, May 20, P.L. 1491, 40 P.S. § 1005.1, etc., upon the theory of 'implied consent' constitutes the Insurance Commissioner the statutory agent for the service of process upon a foreign insurance company in any action arising out of a contract of insurance which was solicited, issued or delivered within the state or the payments of premium or any other transaction of insurance business occurring here. Plaintiffs seek to bring this action within the provisions of this Act probably because it provides in sections 3 and 4 thereof for the filing of a bond by the defendant in such amount as the Court may deem sufficient to secure the payment of the plaintiffs' claim, and also for a substantial counsel fee. The defendant, on the other hand, seeks to avoid these onerous provisions and urges us to find that the present action does not come within the purview of the Act because the policy was neither solicited, issued nor delivered in this State, nor were the premiums collected here.
Because of our opinion that this Court has acquired jurisdiction of the defendant by virtue of the provisions of the 'service of suit clause,' we do not deem it necessary to decide whether the case comes within the provisions of the Unauthorized Insurers' Process Act of Pennsylvania. If we were to decide that the Act does not apply, we would still have to dismiss the present motion. On the other hand, were we to decide this case does come within the purview of that Act, we could not sustain the defendant's objection that the affidavit of compliance was not filed as provided in the Act.
The affidavit is not part of the service of process but is part of the return of service and was designed to place the Court in a position to proceed with the cause to a judgment by default in the event that the insurance company failed to appear to defend the action. See § 2(d) of the Act. The provisions of the Act are based upon an 'implied consent' to service upon the Insurance Commissioner. Where there is an express consent to such service, as by appointment in the policy, it is our view that the filing of an affidavit of compliance is not essential. Section 2(e) of the Act provides that 'Nothing in this section contained shall limit or abridge the right to serve any process, notice or demand upon any insurer in any other manner now or hereafter permitted by law.' Under an express appointment, service may therefore be upheld under the provisions of the Federal Rules of Civil Procedure, Rule 4(d) (3) as above pointed out and the filing of an affidavit of compliance is not required.
Furthermore, there are no Pennsylvania decisions interpreting the pertinent provisions of the Act to aid us in determining whether this suit comes within the framework of the Act. We, therefore, deem it best that the question should await a decision upon a hearing when evidence can be taken and the facts fully developed should that question later become important.
Defendant's motion to quash service of the summons on the basis of improper venue and of improper service of the summons and complaint, and to dismiss the complaint for want of jurisdiction of the Court over the person of the defendant, is denied.
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