John M. Kirby April 26, 2014

In Bhathela v. Currie , decided on November 5, 2013, (unpublished) the Court of Appeals addressed service on an out-of-state motorist through the N.C. Commissioner of Motor Vehicles.

In this case, the parties were in a motor vehicle accident in North Carolina. The plaintiff sued the defendant, and mailed the Complaint to the defendant in Michigan. The mail was returned with a notation "unclaimed" etc. The palintiff then served the defendant through the N.C. Commissioner of Insurance, pursuant to N.C. General Statute Sec. 1-105. The Commissioner sent the documents to the defendant in Michigan. They were returned with a notation, "temporarily away." The plaintiff then obtained an entry of default, and a default judgment. The defendant filed a motion to set aside the default judgment and entry of default; these were denied.

On appeal, the defendant raised several procedural issues in challenging service. The court held that the affidavit of service is not required for service; this is merely proof of service and can be filed subsequently. The court also rejected an argument that the statute (1-105) does not apply when the item is returned with a notation "temporarily away," as this is different from "unclaimed." The court held that this was sufficiently close to the terms of the statute. The court proceeded, however, to hold that the entry of default was error because it was made three days before the defendant's deadline to answer.

John Kirby has represented many parties in civil actions, and has served pleadings under G.S. 1-105 and/or similar statutes (providing for substitute service of process).