Opinion
No. 69-612
Decided September 24, 1970.
Service of process — Foreign insurance company other than life — Sufficiency of service — Performance bond an insurance policy — R.C. 3927.03.
APPEAL from the Court of Appeals for Butler County.
Appellant, a supplier of materials for the construction of two schools, brought an action to recover on performance bonds issued by appellee. Appellant filed a petition and served process according to the provisions of R.C. 3927.03, which provides, in part:
"Any foreign insurance company desiring to transact business by an agent in this state shall file with the Superintendent of Insurance a signed and sealed written statement that will:
"* * *
"(C) Consent that suit may be brought against it in the county where the property insured was situated, or was insured, or the application for insurance taken, and that service of process made therein by the sheriff of such county, by sending a copy thereof by mail addressed to the company at the place of its principal office located in the state where it was organized * * * shall be as valid as if personally made upon the company according to the laws of this state, or any other state or government * * *." Appellee filed such a statement of consent.
Appellee entered a limited special appearance by filing a motion to quash service, which the trial court overruled. After appellee filed an answer and an amended answer, trial was held and the court entered judgment for appellant.
That judgment was appealed to the Court of Appeals, which reversed solely on the ground that the service of process was improper, without deciding the merits.
The cause is before this court pursuant to the allowance of appellant's motion to certify the record.
Mr. Henry J. Bruewer and Mr. Cedric Vogel, for appellant.
Mr. Owen C. Neff, for appellee.
Appellee contends (1) that appellant's petition alleges only that appellee is a foreign corporation and not that it is a foreign insurance company, and (2) that appellee should have been served as a foreign corporation pursuant to R.C. 1703.041 and 2703.12, instead of as a foreign insurance company under R.C. 3927.03(C).
Appellant's allegation that "defendant, United Bonding Insurance Company, is a corporation authorized to do business in Ohio" is sufficient to justify the service as an insurance company pursuant to R.C. 3927.03(C).
When a corporation chooses to be known in its official name as an insurance company, as appellee chose, a reference in a petition to that name is certainly an adequate allegation that the corporation is an insurance company. To hold otherwise would require the redundant allegation that "the `X' Insurance Company is an insurance company."
Appellee's second contention is that it is not a foreign insurance company within the meaning of R.C. 3927.03, and that the consent to service which it was required to file was, therefore, a nullity. Involved in this issue is the question of whether a performance bond is an insurance policy within the meaning of R.C. 3927.03. If it is not, appellee has not consented to service in this case, even if it is an insurance company within the meaning of R.C. 3927.03.
A company which issues performance bonds is generally engaged in the business of insurance. R.C. 3929.01 provides:
"A company may be organized or admitted to carry on the following types of insurance:
"* * *
"(B) It may:
"* * *
"(4) Guarantee the performance of contracts other than insurance policies, and execute and guarantee bonds and undertakings required or permitted in all actions or proceedings, or allowed by law * * *."
Unless there is a statutory provision to the contrary, when appellee issued the performance bonds sued upon, it was an insurance company issuing policies of insurance.
Appellee argues that R.C. 3927.01 demonstrates that appellee was not to be considered a foreign insurance company for the purposes of R.C. 3927.03.
This argument presumes that the exception carries over to the subsequent sections of R.C. Chapter 3927. The language of R.C. 3927.03, and subsequent sections, leads to a contrary conclusion. R.C. 3927.03 begins: " Any foreign insurance company * * *." (Emphasis added.) R.C. 3927.04 is even more emphatic, beginning: " Every foreign insurance company * * *." (Emphasis added.)
Appellee is a foreign insurance company and its performance bonds are insurance policies within the meaning of R.C. 3927.03.
For the foregoing reasons, the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Appeals for the consideration of the other alleged errors which should have been considered in accordance with the provisions of R.C. 2505.21.
Judgment reversed.
O'NEILL, C.J., LEACH, SCHNEIDER, HERBERT, DUNCAN and CORRIGAN, JJ., concur.
LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.