In this episode of On Subrogation: Service by Social Media and Email, subrogation attorney Rebecca Wright discusses a development in state civil rules of the service: putting the other party on notice via electronic means.

Until recently, standard accepted methods of notice include certified mail or in-person service via a process server. While over the last decade, New York, New Jersey and California have occasionally allowed notice via email or social media, Alaska and Texas, respectively, are the first states to move from case precedent to legislative changes.

In 2019, Alaska modified their Civil Rule 4e to allow service via posting to a social media account, email, online court bulletin boards, as well as other kinds of electronic mail. Soon after, Texas amended its Civil Rule 106 for methods of service to include “any other manner, including electronically by social media, email, or other technology, that the statement of evidence shows will be reasonably effective to give the defendant notice of the suit.”

What does this change mean for navigating notice in subrogation cases? Because of these legal changes in Texas and Alaska, a subrogating party can now apply to serve the defendant via electronic means, so long as they have exhausted attempts by traditional means.

Proving Your Case for Serving the Adverse Party with Notice of Filing

It is important to note that electronic service is considered an alternative means of notice; so even in Texas or Alaska, where civil rules specifically allow for service via social media or email, the court will only approve its use after the party that initiated the subrogation lawsuit proves they have done their due diligence via mail and in-person attempts.

Rebecca discusses the two claims you must prove to the court in your request to pursue electronic service:

  1. You must provide an affidavit with your motion that demonstrates that you have attempted to serve the defendant through traditional means. This includes attempts to contact the defendant by certified mail at their last known address and place of employment. It also includes attempts via process server to serve the notice on multiple days of week at multiple times of the day at the last known address and place of employment.
  2. You must show the court that you have identified a specific means of electronic method for service, such as email, LinkedIn, or the business’ website. You must prove you know the defendant owns that address, has access to it, and has recently accessed it or frequently accesses it.

Texas’ law specifically laid it out:

“in determining whether to permit electronic service of process, a court should consider whether the technology actually belongs to the defendant, and whether the defendant regularly uses or recently used the technology.” 

With businesses such as insurance carriers and utility companies, this process of proving the defendant owns and uses the address is straightforward; the vast majority of businesses have websites and methods of online contact. But what if you are subrogating against a person? In this circumstance, the process is not as straightforward.

Electronic Service in the Context of Managing a Subrogation Case Against an Individual

The requirements for requesting electronic service against an individual are the same as for a business, but as people’s email addresses and social media accounts are personal, there is a bit more investigating to do in order to prove there is a specific online method of contacting them.

If the requested electronic service is an email address, the subrogating party will likely have to prove past interaction with the defendant on that email. A simple email address will not suffice without evidence the email address belongs to the defendant and that they have successfully communicated from that address in the recent past.

Social media accounts are somewhat easier, as contextual information is available. Often, during the initial investigation phase of a subrogation lawsuit, the plaintiff has done a background check on the individual and/or had a PI look into them. Information in these reports identifies related parties/people, last known place of employment and address. 

If you are looking at a Facebook profile, for instance, you can check if those related parties are on the friends list, if the listed job matches your report, if the city matches, etc. to prove that profile does, in fact, belong to the defendant. You then have to look at recent activity. How often do they post? When did they last upload a new photo or change their profile photo?

Approval for Electronic Service is at the Court’s Discretion Regardless of the Law

Even in Alaska and Texas, where service via online means is specifically set forth in the civil rules, the court still has the discretion not to allow it. Their decision will hinge on the veracity of your argument and whether you have satisfied due process through attempts made by traditional means. Make sure your affidavit –

  • specifically lays out all the reasons this service should be permitted.
  • why you know that this is, in fact, a good way to get ahold of the opposing party.

It is important to note that the Texas law, which took effect on 31 December 2020, does not apply retroactively. Therefore, if your subrogation case was filed before that date, these legislative changes cannot apply to your suit.

The whole point of process serving is to ensure defendant’s constitutional right to due process is protected. They have a right to know something has been filed against them and to have an opportunity to respond.

You can find resources on dozens of other topics in insurance and subrogation law on our YouTube channel or on our podcasts, where we discuss nuanced subrogation matters in easy-to-understand ways. Peruse our blog for even more educational content, as well as news on Rathbone Group’s activity. Feel free to email us at [email protected] with questions and suggestions on new subjects for our video and podcast series, On Subrogation.