Printable Format40-218. Actions and garnishment proceedings against insurance companies; process; venue; procedure; fee; record of commissioner. Every insurance company, or fraternal benefit society, on applying for authority to transact business in this state, and as a condition precedent to obtaining such authority, shall file in the insurance department its written consent, irrevocable, that any action or garnishment proceeding may be commenced against such company or fraternal benefit society in the proper court of any county in this state in which the cause of action shall arise or in which the plaintiff may reside by the service of process on the commissioner of insurance of this state, and stipulating and agreeing that such service shall be taken and held in all courts to be as valid and binding as if due service had been made upon the president or chief officer of such corporation. Such consent shall be executed by the president and secretary of the company and shall be accompanied by a duly certified copy of the order or resolution of the board of directors, trustees or managers authorizing the president and secretary to execute the same. The summons or order of garnishment, accompanied by a fee of $25, shall be directed to the commissioner of insurance, and shall require the defendant or garnishee to answer or otherwise respond by a certain day, not less than 40 days from the date the summons or order of garnishment is served on the commissioner.
Service on the commissioner of insurance of any process, notice or demand against an insurance company or fraternal benefit society shall be made by delivering to and leaving with the commissioner or the commissioner's designee, the original of the process and two copies of the process and the petition, notice of demand, or the clerk of the court may send the original process and two copies of both the process and petition, notice or demand directly to the commissioner by certified mail, return receipt requested. In the event that any process, notice or demand is served on the commissioner, the commissioner shall immediately cause a copy thereof to be forwarded by certified mail, return receipt requested to the insurance company or fraternal benefit society address to its general agent if such agent resides in this state or to the secretary of the insurance company or fraternal benefit society sued at its registered or principal office in any state in which it is domesticated. The commissioner of insurance shall make return of the summons to the court from whence it issued, showing the date of its receipt, the date of forwarding such copies, and the name and address of each person to whom a copy was forwarded. Such return shall be under the hand and seal of office, and shall have the same force and effect as a due and sufficient return made on process directed to a sheriff. The commissioner of insurance shall keep a suitable record in which shall be docketed every action commenced against an insurance company, the time when commenced, the date and manner of service; also the date of the judgment, its amount and costs, and the date of payment thereof, which shall be certified from time to time by the clerk of the court.
History: L. 1927, ch. 231, 40-218; L. 1963, ch. 258, § 1; L. 1992, ch. 154, § 2; L. 1999, ch. 133, § 1; L. 2007, ch. 122, § 1; L. 2008, ch. 143, § 2; July 1.
Source or prior law:
L. 1871, ch. 93, §§ 41, 59; L. 1875, ch. 112, §§ 4, 5; L. 1885, ch. 131, § 17; L. 1898, ch. 23, §§ 3, 5; L. 1903, ch. 332, § 1; L. 1907, ch. 223, § 1; L. 1907, ch. 228, § 9; L. 1921, ch. 202, § 14; R.S. 1923, 40-220, 40-377, 40-410, 40-706, 40-708, 40-809, 40-1014.
Cross References to Related Sections:
Unauthorized insurers process act, see chapter 40, article 20.
General provision for service of process on insurance companies or associations, see 60-304(g).
Law Review and Bar Journal References:
"1999 Legislative Wrap Up," Ron Smith, 68 J.K.B.A. No. 7, 16 (1999).
"General Jurisdiction in Kansas," Robert C. Casad, 76 J.K.B.A. No. 4, 27 (2007).
CASE ANNOTATIONS
1. Form of summons same as required by the civil code. Insurance Co. v. Hall, 1 Kan. App. 43, 41 P. 69.
2. Foreign company estopped from questioning jurisdiction of the court. Long Island Ins. Co. v. G. W. Mfg. Co., 2 Kan. App. 377, 42 P. 738.
3. Section cited; service on foreign insurance company. Aetna Life Ins. Co. v. Koons, 26 Kan. 215, 218.
4. Summons must be directed to superintendent, when; time to answer. Insurance Co. v. Coverdale, 48 Kan. 446, 450, 29 P. 682.
5. Summons may be made on local chief agent in county. Insurance Co. v. Mortimer, 52 Kan. 784, 35 P. 807.
6. Summons may be made on local chief agent in county. Insurance Co. v. National Bank, 58 Kan. 86, 89, 48 P. 592.
7. Garnishment; service of summons on insurance company. Potter v. Banking Co., 59 Kan. 455, 462, 53 P. 520.
8. Service on foreign corporation; statute construed. Life Association v. Boyer, 62 Kan. 31, 33, 61 P. 387.
9. Foreign Fraternal Benefit Association; service of process. Mystic Legion v. Brewer, 75 Kan. 729, 731, 90 P. 247.
10. State statute cannot prevent removal of cause to federal court. Insurance Co. v. Surety Co., 94 Kan. 305, 306, 146 P. 412.
11. Service upon superintendent; county in which action may be brought. Nowak v. Insurance Co., 103 Kan. 778, 176 P. 654.
12. Condition upon which service on superintendent may be had. Shearer v. Insurance Co., 106 Kan. 574, 577, 189 P. 648.
13. Service on insurance superintendent; statute construed. Buchanan v. Insurance Co., 108 Kan. 520, 522, 196 P. 249.
14. Jurisdiction of nonresident defendant cannot be established by improperly joining insurance company as defendant. Volok v. McCarter Truck Line, 156 Kan. 128, 129, 130, 131 P.2d 713.
15. Codefendant by general appearance waived jurisdiction where action against insurance company dismissed. Olsen v. Lambert, 158 Kan. 94, 100, 145 P.2d 159.
16. Section complied with; suit under K.S.A. 40-713 to compel compliance with regulations authorized. State, ex rel., v. Ancient Order of United Workmen, 161 Kan. 437, 438, 439, 168 P.2d 522.
17. Service on foreign insurance carrier properly made hereunder. Graves v. National Mutual Cas. Co., 164 Kan. 267, 272, 274, 275, 188 P.2d 945.
18. Mentioned in upholding order refusing to remove case to federal court. Henderson v. National Mutual Cas. Co., 168 Kan. 674, 678, 215 P.2d 225.
19. Section not complied with; service properly quashed. Butler County Comm'rs v. Black, Sivalls & Bryson, Inc., 169 Kan. 225, 226, 227, 217 P.2d 1070.
20. Service upon commissioner sufficient even though company has withdrawn from state if cause of action arose before withdrawal. McClelland v. Michigan Surety Co., 190 Kan. 761, 378 P.2d 72.
21. Section applicable to business transactions outside state if controversy arises in Kansas. Travelers Fire Ins. Co. v. Ranney-Davis Mercantile Co., 173 F.2d 844, 846, 847, 849.
22. Action properly instituted in federal court; service as required; dismissal motion denied. Boyles v. Farmers Mut. Hail Ins. Co., 78 F. Supp. 706, 710.
23. Mentioned; assignment of claim under insurance policy allegedly made to prevent removal held valid. Krenzien v. United Services Life Ins. Co., 121 F. Supp. 243, 244.
24. Venue where surety company sued on fidelity bond examined. First Hays Banshares, Inc. v. Kansas Bankers Surety Co., 244 Kan. 576, 589, 769 P.2d 1184 (1989).
25. Circumstances authorizing personal jurisdiction over foreign insurer under long-arm statute (K.S.A. 60-308) examined. Deines v. Vermeer Mfg. Co., 752 F. Supp. 989, 1000 (1990).
26. Period to file motion to remove not triggered where service upon insurer invalid under section. Liebau v. Columbia Cas. Co., 176 F. Supp. 2d 1236, 1241 (2001).
27. Service under K.S.A. 40-218 provided personal jurisdiction in Kansas court; law of place of contracting (Nebraska) controls; one-year limitation to sue in contract is against public policy of Nebraska, which has five-year statute of limitations on contracts. Novak v. Mutual of Omaha Ins. Co., 29 Kan. App. 2d 526, 28 P.3d 1033 (2001).
28. Thirty-day removal period for garnishment claim commenced on date of service of garnishment complaint. Ortiz v. Biscanin, 190 F. Supp. 2d 1237, 1242 (2002).