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Klenz v. AVI International6/19/2002
Argued Mar 28, 2002; Opinion Filed Jun 19, 2002
[ ] Ivana Klenz commenced a lawsuit against AVI International (AVI) after it refused a demand for payment of legal expenses incurred in a wrongful death suit initiated by Klenz. AVI moved for summary judgment and the trial court granted the motion on the basis that 2) there was no personal jurisdiction over AVI. Klenz appeals. We reverse Issue 2), but affirm Issue 3) on the basis that there is no sufficient showing that the forum selection clause is invalid.
FACTS
[ ] In August 1996, Jan Wunderlich, a seventeen-year-old foreign exchange student from Germany, was placed by AYUSA International in a host home in Newell, South Dakota. As a foreign exchange student in the AYUSA International program, Wunderlich was insured through AVI under the "Security Pass'Port" program, specifically Policy No. 290-682 AVI/AYU. Wunderlich received an AVI insurance identification card, identifying him as an insured participant. AVI obtained this insurance policy through Chubb Insurance of Europe, which was referred to as the insurer. AVI was denominated a broker, AYUSA International was denominated the policy holder and Jan Wunderlich was denominated the beneficiary.
[ ] The insurance policy was effective for the 1996-97 academic year and provided worldwide coverage for medical/accident, dental, travel expense, death benefits, disability, third party liability and legal expenses. Specifically, with respect to legal expense coverage, the policy covered necessary and reasonable attorney and litigation expenses incurred by the insured as a plaintiff or defendant in a legal action. Coverage began when Wunderlich departed from Germany and would have ended when he returned to Germany.
[ ] On October 12, 1996, Wunderlich was killed in a car accident on Highway 79, near rural Newell, Butte County, South Dakota, while a passenger in a friend's vehicle. On March 25, 1999, Klenz, Wunderlich's mother, was appointed as special administratrix of his estate in Butte County. Klenz brought a wrongful death suit against the host family, the driver of the vehicle and AYUSA International. At the conclusion of the suit, Klenz demanded payment of legal expenses from AVI. AVI refused, causing Klenz to bring this action against AVI for legal expenses in Butte County.
[ ] AVI is a French corporation with its principal place of business in France. It maintains a claims office at 26 Third Street, San Francisco, California, 94103. Klenz served AVI through its claims office in San Francisco with a summons and complaint on August 2, 2000. On January 16, 2001, AVI filed a motion to dismiss asserting lack of personal jurisdiction over AVI. Following a hearing on March 12, the trial court denied AVI's motion to dismiss on March 16. AVI then filed a motion to reconsider and a hearing was held on April 12. At that meeting the parties agreed to convert the motion to dismiss into a motion for summary judgment, with the understanding that any order of summary judgment would be appealed to this Court. The trial court granted summary judgment in favor of AVI on May 8, 2001.
STANDARD OF REVIEW
[ ] Our standard of review for summary judgment is well established and is "whether a genuine issue of material fact exists and whether the law was correctly applied." Manuel v. Wilka, 2000 SD 61, , 610 NW2d 458, 462 (citing Parmely v. Hildebrand, 1999 SD 157, , 603 NW2d 713, 715-16 (citations omitted)).
[ ] 1. Whether Klenz's Appeal Is Barred Because of the Agreement to Convert a Motion to Dismiss into a Motion for Summary Judgment.
[ ] AVI argues that this appeal is barred by the parties' agreement
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