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Medina v. American Family Mutual Insurance Co.9/21/2001
Appeal from Sedgwick District Court; MARK A. VINING, judge.
Reversed and remanded with directions.
Mary Jane Medina claimed underinsured motorist insurance coverage following a default judgment against the tortfeasor. American Family Mutual Insurance Company (American Family) appeals the district court's judgment that it is liable to Medina for underinsured motorist coverage. We reverse.
On June 21, 1992, Medina's vehicle was stopped at an intersection when it was struck from behind by another vehicle. That vehicle was driven by Jose M. Camacho (Jose M.). Medina alleged personal injury . She was insured by American Family with underinsured motorist coverage of $100,000. Jose M. was arguably covered under a policy issued to a relative on the accident vehicle by a related company, American Standard Insurance Company of Wisconsin (American Standard), with liability limits of $50,000 per person.
On June 20, 1994, Medina filed a petition in Finney County District Court, naming Jose M. as the sole defendant and alleging she had been injured by his negligence. She attempted service of a summons and petition on Jose Camacho at the address identified in the accident report. That Jose Camacho protested that he was Jose E. Camacho (Jose E.) and that the summons was intended for Jose M., his cousin, who had left the area and perhaps returned to Mexico. Jose E. explained that the car involved in the accident had been titled in his name but that he had since transferred title to Jose M.
Medina continued, with much frustration, to attempt to locate and serve Jose M. She received a 30-day extension of time to effect service and eventually attempted service by publication. American Standard, meanwhile, refused to admit or deny coverage for Jose M. under Jose E.'s policy. Jose E. was dismissed, and Medina moved for default judgment against Jose M. On November 1, 1995, the Finney County court granted Medina judgment for her specified damages of $100,000.
In June 1999, Medina, armed with her underinsured motorist coverage of $100,000 and represented by a new attorney, filed suit in Sedgwick County against American Family for the difference between Jose E.'s liability limits and the amount of the judgment plus interest and costs. American Family challenged the service of process and the validity of the judgment in its answer. American Family then moved for judgment on the pleadings, contending that the underlying default judgment was void for lack of personal jurisdiction over the defendant. The district court denied the motion and also denied a motion in limine seeking to exclude the journal entry from evidence.
During a bench trial, American Family stipulated that Jose M. was covered by the American Standard policy. Medina's Finney County attorney testified that Jose M. had not been personally served. It was undisputed that Jose M. did not appear personally and no one entered an appearance on his behalf. In closing argument, Medina attempted to add a claim for uninsured motorist benefits. American Family continued to argue that the Finney County judgment was void and did not constitute a legal obligation of Jose M., which is required by the terms of the liability policy to create an obligation upon American Family. The district court ruled that American Family was bound by the judgment and Medina was entitled to her underinsured but not her uninsured motorist coverage. American Family appeals. Medina subsequently attempted to cross-appeal the amount of the judgment but failed to docket the appeal.
The issues briefed by the parties are all variations on a single question, which is whether the default judgment against Jose M. is v
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