Houie v. Allen

Houie v. Allen

Opinion

 [*519]  [**430]   Pursuant to leave granted by this court, plaintiffs Kenneth Houie, Catherine Houie and Tiffany J. Houie, an infant, by her guardian ad litem, Kenneth Houie, appeal from an interlocutory order of the Law Division denying service of process on defendant Paul Allen by serving his homeowner's insurance carrier, State Farm Fire & Casualty Company (State Farm).

Defendant was shot and injured while working as a disc jockey at the Dreamboat Lounge in Newark, New Jersey. He identified his assailant as plaintiff Kenneth Houie, who was charged with aggravated assault with intent to cause bodily injury in violation of N.J.S.A. [***2]  2C:12-1(b). Plaintiff was arrested and incarcerated in the Essex County Jail for four days. Subsequently, the charges against plaintiff were administratively dismissed by the Essex County Prosecutor's Office when it was affirmatively established that defendant's identification of him was false. Plaintiff thereupon instituted this action against defendant seeking to recover both compensatory and punitive damages. Defendant was charged with malicious use of process, malicious abuse of process and libel and slander. Plaintiff's wife sued per quod and together with his daughter also sued for damages sustained as the result of the alleged tortious conduct of defendant.

Attempts to serve defendant with process by delivery in New Jersey pursuant to R. 4:4-4(a) and by certified mail at his last known address out of state pursuant to R. 4:4-4(e) were unsuccessful. When plaintiffs' attorneys discovered that defendant had a standard homeowner's insurance policy in effect at the time the torts were allegedly committed, they moved under R. 4:4-4(i) to obtain substituted service on State Farm through its agent in South Orange, New Jersey. This motion apparently was denied [***3]  by the trial court, but no record of the decision was furnished in connection with this appeal. Plaintiffs then moved for reconsideration of the trial court's ruling. The trial court denied this motion, reasoning that there was insufficient public  [*520]  interest in this private controversy to justify substituted service on defendant's homeowner's insurance carrier under R. 4:4-4(i). The trial court did not address the issue of whether the homeowner's insurance policy  [**431]  provided coverage for defendant's alleged tortious acts.

R. 4:4-4(i) provides:

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