21May
By: Tom On: May 21, 2019 In: International Service of Process Comments: 0
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Foreign Driver + Rental Company = Difficult Service of Process

According to auto insurance industry experts, the average driver will be in a car accident once every 18 or so years.[1] This suggests that the average driver is unlikely to have a motor vehicle accident (MVA) over the course of a week, a month, or even a year.

However, this statistic for MVAs can be misleading because it is predicated on the following assumptions:

  1. Most drivers are within 25 miles of their homes
  2. The driver speaks and reads English
  3. The driver drives on the right hand side of the road
  4. Driving is not routinely done at night or during rush hour

Now consider the risk of an MVA for a Japanese citizen who is traveling in California. The driver — who is accustomed to driving on the left — must now drive an unfamiliar rental car on the right, and at night and during rush hour. Additionally, although the driver can speak a few English words, he cannot read English street signs. While determining this example driver’s exact quantitative risk of an MVA is beyond the scope of this article, we can all agree that this driver has a fairly high risk of being involved in an MVA while visiting California.

Given that in 2018, 80M international visitors came to the US,[2] it’s not surprising that each year many of these visitors are involved in MVAs while operating vehicles owned by rental companies. These foreign driver-MVAs result in substantial litigation wherein the driver and the rental company are co-defendants.

A key challenge in such litigation is often determining how to serve process upon the driver. Frequently, all a plaintiff’s attorney knows about the foreign driver is what was memorialized in the police report. Worse, these police reports are frequently inadequate due to a lack details regarding the foreign driver — and it’s not hard to understand why. Imagine that you are a police officer at a foreign driver-MVA. The driver hands you their driver’s license, which is written in Russian. Unless you know how to read and write in Cyrillic, it’s incredibly unlikely that you’ll be able to accurately write down the driver’s residential address.

So, how do you service process upon a foreign driver-defendant?

Step #1: Obtain an Address for Service

Regardless of whether the defendant resides in a Hague Service Convention country or not, the first step is to obtain an address for service. This step will require an agent in the driver’s home country to perform address research.

This may or not be an easy task depending on the country’s alphabet and numbering systems, and the quality of the police report. We have already touched on the issue that the police officer in the field may not be able to properly translate (or even copy) a foreign driver’s license’s information. So a key issue is the quality of the report.

A unique name and a date of birth (DOB) can go a long way in countries like Germany where residents can be found in governmental registries.  On the other hand, a common name, an incomplete address, and no DOB are likely to go nowhere. For example, trying to find “Maria Gomez” in Mexico City would be next to impossible given the commonality of the name in the given location.

Step #2: Preform Third-Party Discovery

If the police report is inadequate, the next step towards obtaining an address for service is discovery. More specially, what evidence does the rental car company have on the defendant? Did the driver pay for the rental car with a credit card, or was the car rental made by a foreign company such as the driver’s employer?

If either, or both of these conditions are true, then an avenue is open for third-party discovery under the Hague Evidence Convention or pursuant to a Letter Rogatory.

Usually whether discovery abroad is undertaken is determined by a risk-benefit analysis that incorporates the nature of the insurance held by the driver during the rental period. However, at Legal Language Services, we recently assisted a client with taking evidence abroad because of the severity of the plaintiff’s injury and a quirk in the insurance policy covering the rental agreement. In this case the amount of coverage available substantially changed whether or not the foreign driver was a proper co-defendant.

Step #3: Consider Service by Other Means

When address research and discovery fail, the next step is consider service by other means; and ask how famous the foreign driver is.

Historically, when attempting to serve process on a foreign driver with incomplete address information, service by other means was limited to service by publication. Publication is undesirable because it involves a lot of due diligence work as well as working with a publisher — which also means working with an interpreting agent. As a result, things are sometimes lost in translation and negotiations always take longer than expected.

Fortunately, we live in the 21st Century – and if the foreign defendant is famous enough, electronic service of process is possible.

LLS recently had a case concerning a foreign driver mediated MVA. The police report did not include a complete address for service (it only included the driver’s country of residence). However, this driver was a prominent socialite with a social media presence from which the defendant could be easily tracked.

Social media (or the existence of an email address) sets the stage for service by electronic means.

To obtain electronic service you must demonstrate to the court that:

  1. there are impediments to serving a defendant by more traditional or congenital service,
  2. the electronic connection or link is valid, and
  3. the defendant uses the connection.

Attorneys who a contemplating taking on clients who were the victims of a foreign driver’s wrong doing and have little information on the defendant, should not turn down the client until considering all of the above.

If you need assistance serving process upon a foreign driver, contact the professional at Legal Language today.

Notes

[1] Cederberg Law: How Many Car Accidents Will I Have in My Lifetime? 2019; https://cederberglaw.com/how-many-car-accidents-will-i-have-in-my-lifetime/

[2] US Travel Association: Travel And Tourism Overview (2018); https://www.ustravel.org/system/files/media_root/document/Research_Fact-Sheet_US-Travel-and-Tourism-Overview.pdf


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