In Amway Asia Pacific Ltd. v. Those Certain Underwriters at Lloyd's London, No. 1:07-CV-1277 (W.D. Mich. Oct. 27, 2008), a federal district court in Michigan granted the primary insurer's motion to dismiss a declaratory judgment action on the ground that the plaintiff failed to serve copies of the summons and complaint on the proper agent for service of process.
The plaintiff-insured in Amway sought a declaration that the defendant-insurer was obligated to reimburse the plaintiff for $2.2 million in legal fees incurred in defense of the underlying shareholder derivative action for which the defendant denied coverage under its primary D&O policy. The plaintiff served copies of the summons and complaint on a U.S. law firm, which the original policy form had designated as the defendant's agent for service of process. The defendant moved to dismiss the complaint for improper service because an endorsement amended the policy to change the agent for service of process from the US law firm designated on the policy form to a Hong Kong law firm. The court granted the motion to dismiss, holding that the slip endorsement to the policy, which was sought by the plaintiff through its broker, was binding once signed by the primary insurer notwithstanding that a copy of the endorsement was not on file at the offices of the broker's U.S. affiliate.
Click here to read a copy of the opinion dated October 27, 2008.