RELATING TO SERVICE OF PROCESS ON NON-RESIDENT
OWNERS OF MOTOR VEHICLES
AN ACT TO AMEND SECTION 3112 OF TITLE 10 OF THE DELAWARE CODE RELATING TO SERVICE OF PROCESS ON NON-RESIDENT OWNERS, OPERATORS OR DRIVERS OF MOTOR VEHICLES.
Be it enacted by the General Assembly of the State of Delaware:
Section 1. Section 3112 of Title 10 of the Delaware Code is amended by substituting the following subsections (a)-(j) for the presently designated subsections (a), (b), and (c):
(a) Any non-resident owner, operator or driver of any motor vehicle, not registered under the laws of this State providing for the registration of motor vehicles, who accepts the privilege extended by law to non-residents of this State to operate or drive such motor vehicles on the public streets, roads, turnpikes or highways of this State by operating or driving such motor vehicle or by having the same operated or driven on any public street, road, turnpike or highway of this State shall by such acceptance of the privilege be deemed thereby to have appointed and constituted the Secretary of State of this State, his agent for the acceptance of legal process in any civil action against such non-resident owner, operator or driver arising or growing out of any accident or collision occurring within this State in which such motor vehicle is involved. The acceptance shall be a signification of the agreement of such non-resident that any such process when so served shall be of the same legal force and validity as if served upon such non-resident personally within this State.
(b) Service of the legal process provided for in this Section, with the fee of $2, shall be made upon the Secretary of State of this State in the same manner as is provided by law for service of writs of summons, and when so made shall be as effectual to all intents and purposes as if made personally upon such non-resident within this State ; provided, that not later than seven days following the filing of the return of service of process in the court in which the civil action is commenced, the plaintiff or a person acting in his behalf shall send by registered mail to the non-resident defendant a notice consisting of a copy of the process and complaint served upon the Secretary of State and the statement that service of the original of such process has been made upon the Secretary of State of this State, and that under the provisions of this Section such service is as effectual to all intents and purposes as if it had been made upon such non-resident personally within this State; and provided further that, (1), an affidavit made by or on behalf of the plaintiff of the defendant's non-residence and of the sending and date of mailing of the notice, and, (2), either the return receipt of defendant or his agent, or, if acceptance was refused by the defendant or his agent, the original envelope bearing a notation by the postal authorities that receipt was refused together with an affidavit by or on behalf of the plaintiff that notice of such mailing and refusal was within three days of the return of the original envelope sent to the defendant by ordinary mail, are filed in the action within ten days of the receiving by or on behalf of the plaintiff from the postal authorities of either the defendant's return receipt or the original envelope bearing the notation that acceptance was refused.
(c) Where the notice provided for in subsection (b) of this section is mailed to a foreign country, other official proof of the delivery of the mail may be filed in case the post office department is unable to obtain a return receipt.
(d) The return receipt or other official proof of delivery shall constitute presumptive evidence that the notice mailed was received by the defendant or his agent; and the notation of refusal shall constitute presumptive evidence that the refusal was by the defendant or his agent.
(e) The plaintiff or his counsel of record in the action may within seven days following the return of any undelivered notice mailed in accordance with the provisions of paragraph (b) of this section other than a notice, delivery of which is shown by the notation of the postal authorities on the original
envelope to have been refused by the defendant or his agent, file with the court in which the civil action is commenced proof of the non-receipt of the notice by the defendant or his agent, which proof shall consist of the usual receipt given by the post office at the time of mailing to the person mailing the registered article containing the notice, the original envelope of the undelivered registered article, and an affidavit made by or on behalf of plaintiff specifying (1) the date upon which the envelope containing the notice was mailed by registered mail, (2) the date upon which the envelope containing the notice was returned to the sender, (3) that the notice provided for in paragraph (b) of this section was contained in the envelope at the time it was mailed, and (4) that the receipt, obtained at the time of mailing by the person mailing the envelope containing the notice, is the receipt filed with the affidavit.
(f) The time in which defendant shall serve his answer shall be computed from the date of the mailing of the registered letter mentioned in subsection (b) ; provided, however, that the court in which the action is pending may, at any time before or after the expiration of the prescribed time for answering, order such continuances as may be necessary to afford the defendant therein reasonable opportunity to defend the action.
(g) This section is an extension of and not a limitation upon the right otherwise existing of service of legal process, by foreign attachment and otherwise, upon non-residents or their property in this State.
(h) In any civil action against a non-resident owner, operator or driver of a motor vehicle pending on the effective date of this Act in which it appears to the satisfaction of the Court in which the action is pending that service of process has not been attempted or has not been perfected because of the unconstitutionality or a question of the constitutionality of the procedure provided by statute for such service of process, the court upon the application of plaintiff or his attorney made within 60 days following the effective date of this Act may permit service of process to. be made in accordance with the provisions of this Act if the plaintiff or his attorney files with the Court within 10 days following the granting of such permission a written
application for the issuance of process ; provided that such actions shall be deemed to have been commenced upon the date of the filing of the complaint.
(i) Where a cause of action or claim for relief has ac-rued since February 12, 1953, and a civil action is not instituted upon the cause of action or claim for relief until after the effective date of this Act, service of process in such civil action shall be effective if made in compliance with the provisions of this Act. This sub-section shall not be construed to be an extension of any statute of limitations relating to any cause of action or claim for relief referred to in this sub-section.
(j) If any provision of this Act or amendments hereto, or the application hereof to any person, thing or circumstance is held invalid, such invalidity shall not affect the provisions or application of this Act or such amendments as can be given effect without the invalid provisions or application, and to this end the provisions of this Act are declared to be severable.
Approved June 23, 1955.