The Minnesota Supreme Court has ruled that faxing a summons and complaint to a sheriff to serve on an insurance company did not comply with the state's rules of civil procedure, which require “personal delivery” with a “physical transfer” or “hand-off” of the actual document to be served.

The Case

On January 9, 2014, Nichole Cox's home was destroyed by a fire. Her home was insured by Mid-Minnesota Mutual Insurance Company and North Star Mutual Insurance Company, whose respective principal places of business were in Benton and Lyon Counties, Minnesota.

Ms. Cox submitted a claim to Mid-Minnesota, but the claim was denied.

On December 21, 2015, Ms. Cox unsuccessfully attempted to commence a breach of contract action against the insurers by serving a summons and complaint on the Minnesota Commissioner of Commerce. On January 11, 2016, Ms. Cox again attempted to commence the action, this time by faxing the summons and complaint to the sheriffs in Benton and Lyon Counties. Both offices confirmed that they received the fax.

On January 14, 2016, the Lyon County deputy sheriff personally served North Star. On January 19, 2016, the Benton County deputy sheriff personally served Mid-Minnesota.

The insurers moved to dismiss the action.

They argued that facsimile transmission did not constitute “delivery” of the summons under Minnesota Rule of Civil Procedure 3.01(c).

The trial court denied the motion to dismiss, concluding that facsimile transmission constituted “delivery” under Rule 3.01(c).

The insurers appealed.

The court of appeals reversed the trial court, holding that, by sending a facsimile transmission, Ms. Cox had failed to personally deliver the summons and complaint to the sheriff. As a result, the court said, the action had never been commenced under Rule 3.01(c), and the trial court lacked jurisdiction.

The dispute reached the Minnesota Supreme Court.

Minnesota Law

Minnesota Rule of Civil Procedure Rule 3.01(c) provides:

A civil action is commenced against each defendant . . . when the summons is delivered to the sheriff in the county where the defendant resides for service; but such delivery shall be ineffectual unless within 60 days thereafter the summons is actually served on that defendant or the first publication thereof is made.

The Insurance Policy

The insurance policy provided that:

[n]o suit . . . to recover for any property claim may be initiated or brought . . . unless . . . the suit is commenced . . . within two (2) years after the loss. 

The Minnesota Supreme Court's Decision

The court decided that a facsimile transmission did not satisfy Rule 3.01(c), explaining that the rule requires that a summons be “delivered” to the sheriff before an action is commenced and that it contemplates “personal delivery to the office of the sheriff.”

According to the court, the words “delivery” and “delivered” “have a special meaning within the context of Rule 3.01(c) that requires personal delivery.” The court added that facsimile transmission is “not a personal delivery.” Rather, the court reasoned, a fax is “[a] method of transmitting over telephone lines an exact copy of a printing.” The actual document being faxed “is not brought to a particular person or place. There is no physical transfer or hand-off.”

Moreover, the court continued, interpreting the word “delivery” to include faxing would be “inconsistent with the rest of Rule 3.01 and the other procedural rules.” The court pointed out that, for example, Rule 3.01(b) contains a “narrow exception” authorizing commencement by facsimile transmission, but only if “consented to by the defendant.”

In summary, the court concluded that: 

[T]he word “delivery” in Rule 3.01(c) has a well-established special meaning: personal delivery. This special meaning is confirmed by the history of the delivery-to-the-sheriff rule, the surrounding rules, and federal cases. Because Rule 3.01(c) requires personal delivery of the summons, [Ms.] Cox's facsimile transmissions to the sheriffs did not commence the action.

The case is Cox v. Mid-Minnesota Mutual Ins. Co., No. A16-0712 (Minn. Jan. 24, 2018). Attorneys involved include: Charles J. Lloyd, Brian F. Murn, Livgard & Lloyd PLLP, Minneapolis, Minnesota, for appellant. Boe M. Piras, Paul Wocken, Willenbring, Dahl, Wocken & Zimmermann, PLLC, Cold Spring, Minnesota, for respondents. 

FC&S Legal Comment

It is worth noting that three of the seven justices on the Supreme Court of Minnesota (including the chief justice) dissented in a written opinion that stated that they “would hold that the meanings of 'deliver' and 'delivery' in Rule 3.01(c), as it currently is written, include facsimile transmission.” The majority, however, decided otherwise.