Senate Bill No. 437
(By Senator Wooton)
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[Introduced February 21, 1994; referred to the Committee
on Government Organization; and then to the Committee
on Finance.]
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A BILL to amend and reenact section five, article twelve-c,
chapter eleven of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
section five, article nineteen, chapter twenty-nine of said
code; to amend and reenact section two hundred two, article
two, chapter twenty-nine-c of said code; to amend and
reenact section three, article eighteen, chapter thirty of
said code; to amend and reenact section fifteen, article
one, chapter thirty-one of said code; to amend and reenact
sections sixteen, seventeen, fifty-six and fifty-seven,
article one-a of said chapter; to amend and reenact sections
twelve and thirteen, article four, chapter thirty-three of
said code; to amend and reenact sections four hundred three,
four hundred four, four hundred five, four hundred six and
four hundred seven, article nine, chapter forty-six of said
code; to amend and reenact section one hundred thirty-seven,
article two, chapter forty-six-a of said code; to amend and
reenact section four, article eight, chapter forty-seven of
said code; to amend and reenact section four, article nine
of said chapter; to amend and reenact sections thirty-one
and thirty-three, article three, chapter fifty-six of said
code; to amend and reenact sections two and four, article
one, chapter fifty-nine of said code; and to further amend
said article by adding thereto a new section, designated
section two-a, all relating to fees for services provided by
the secretary of state; increasing certain fees;
consolidating certain fee references prescribed under the
U.C.C. as contained in article nine, chapter forty-six of
this code with chapter fifty-nine which prescribes fees for
miscellaneous document related filings; providing that
certain fees paid to and collected by the secretary of state
be placed in a special account in the state treasury; and
providing that moneys in the special account are to be used
by the secretary of state to implement the functions of the
secretary of state's office.
Be it enacted by the Legislature of West Virginia:
That section five, article twelve-c, chapter eleven of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section five, article
nineteen, chapter twenty-nine of said code be amended and
reenacted; that section two hundred two, article two, chapter
twenty-nine-c of said code be amended and reenacted; that sectionthree, article eighteen, chapter thirty of said code be amended
and reenacted; that section fifteen, article one, chapter thirty-
one of said code be amended and reenacted; that sections sixteen,
seventeen, fifty-six and fifty-seven, article one-a of said
chapter be amended and reenacted; that sections twelve and
thirteen, article four, chapter thirty-three of said code be
amended and reenacted; that sections four hundred three, four
hundred four, four hundred five, four hundred six and four
hundred seven, article nine, chapter forty-six of said code be
amended and reenacted; that section one hundred thirty-seven,
article two, chapter forty-six-a of said code be amended and
reenacted; that section four, article eight, chapter forty-seven
of said code be amended and reenacted; that section four, article
nine of said chapter be amended and reenacted; that sections
thirty-one and thirty-three, article three, chapter fifty-six of
said code be amended and reenacted; that sections two and four,
article one, chapter fifty-nine of said code be amended and
reenacted; and that said article be further amended by adding
thereto a new section, designated section two-a, all to read as
follows:
CHAPTER 11. TAXATION.
ARTICLE 12C. CORPORATE LICENSE TAX.
§11-12C-5. Annual fee of secretary of state as attorney-in-fact.
Every foreign corporation, every foreign limited
partnership, every domestic corporation whose principal place of
business or chief works is located outside the state, and everydomestic limited partnership whose principal place of business is
located outside the state, shall pay an annual fee
of ten dollars
as provided in section two, article one, chapter fifty-nine of
this code for the services of the secretary of state as attorney-
in-fact for such corporation or limited partnership, which fee
shall be due and payable at the same time and with the same
return, collected by the same officers, and accounted for in the
same way, as the annual license tax imposed on corporations under
this article. The tax commissioner shall pay over to the
secretary of state all attorney-in-fact fees collected under this
section, and such fees shall be
used to offset the costs of the
secretary of state for his or her services as attorney-in-fact
deposited into the account established by section two-a, article
one, chapter fifty-nine of this code.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 19. SOLICITATION OF CHARITABLE FUNDS ACT.
§29-19-5. Registration of charitable organizations; fee.
(a) Every charitable organization, except as provided in
section six of this article, which intends to solicit
contributions within this state or to have funds solicited on its
behalf shall, prior to any solicitation, file a registration
statement with the secretary of state upon forms prescribed by
him or her, which shall be good for one full year and which shall
be refiled in the next and each following year in which such
charitable organization is engaged in solicitation activities.
If an organization discontinues solicitation at any time afterits last registration filing, then it must file a registration
statement reflecting its activities during its last fiscal year
in which solicitation in West Virginia took place. It shall be
the duty of the president, chairman or principal officer of such
charitable organization to file the statements required under
this article. Such statements shall be sworn to and shall
contain the following information:
(1) The name of the organization and the purpose for which
it was organized;
(2) The principal address of the organization and the
address of any offices in this state. If the organization does
not maintain an office, the name and address of the person having
custody of its financial records;
(3) The names and addresses of any chapters, branches or
affiliates in this state;
(4) The place where and the date when the organization was
legally established, the form of its organization;
(5) The names and addresses of the officers, directors,
trustees and the principal salaried executive staff officer;
(6) A copy of a balance sheet and a statement or report of
income and expenses for the organization's immediately preceding
fiscal year, or a financial statement reporting information
showing the kind and amount of funds raised during the preceding
fiscal year, the costs and expenses incidental thereto and
showing how the funds were disbursed or allocated for the same
fiscal year:
Provided, That for organizations raising more thanfifty thousand dollars per year in contributions, the balance
sheet and income and expense statement, or financial statement
provided, shall be audited by an independent public accountant.
Organizations are required to report the amount of money raised
in the state and the amount spent in the state for charitable
purposes;
(7) A copy of any determination of the organization's tax
exempt status under the provisions of 26 U.S.C. §501(c)(3) and a
copy of the last filed Internal Revenue Service form 990 and
Schedule A for every charitable organization and any parent
organization;
(8) Whether the organization intends to solicit
contributions from the public directly or have such done on its
behalf by others;
(9) Whether the organization is authorized by any other
governmental authority to solicit contributions and whether it is
or has ever been enjoined by any court from soliciting
contributions;
(10) The general purpose or purposes for which the
contributions to be solicited shall be used;
(11) The name or names under which it intends to solicit
contributions;
(12) The names of the individuals or officers of the
organization who will have final responsibility for the custody
of the contributions;
(13) The names of the individuals or officers of theorganization responsible for the final distribution of the
contributions; and
(14) Copies of all contract documentation from professional
fund-raising counsels and professional solicitors as provided for
in subsection (d), section seven of this article.
(b) Each chapter, branch or affiliate, except an independent
member agency of a federated fund-raising organization, may
separately report the information required by this subsection, or
report the information to its parent organization which shall
then furnish such information as to its West Virginia affiliates,
chapters and branches in a consolidated form to the secretary of
state. An independent member agency of a federated fund-raising
organization, as hereinbefore defined, shall comply with the
provisions of this article independently. Each organization
shall file a separate registration form for each name under which
funds will be solicited.
(c) The registration forms and any other documents
prescribed by the secretary of state shall be signed by an
authorized officer or by an independent public accountant and by
the chief fiscal officer of the charitable organization and shall
be verified under oath.
(d) Every charitable organization collecting less than one
million dollars during any year which submits an independent
registration to the secretary of state shall pay an annual
registration fee of fifteen dollars; every charitable
organization collecting more than one million dollars during oneyear which submits an independent registration to the secretary
of state shall pay an annual registration fee of fifty dollars;
a parent organization filing on behalf of one or more chapters,
branches or affiliates or a single organization filing under
different names shall pay a single annual registration fee of
fifty dollars for itself and such chapters, branches or
affiliates included in the registration statement.
The secretary of state shall deposit all of the proceeds of
these fees into the account established by section two-a, article
one, chapter fifty-nine of this code.
CHAPTER 29C. UNIFORM NOTARY ACT.
ARTICLE 2. APPOINTMENT PROVISIONS.
§29C-2-202. Qualifying fee.
Every applicant for appointment and commission as a notary
public shall pay to the secretary of state a fee of fifty
dollars.
The secretary of state shall deposit the proceeds of
these fees into the account established by section two-a, article
one, chapter fifty-nine of this code.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 18. PRIVATE DETECTIVES AND INVESTIGATORS.
§30-18-3. Issuance and term of license; fee; bond; disability
because of conviction of crime, etc.
An applicant for a license hereunder shall pay to the
secretary a license fee of fifty dollars, if the applicant be an
individual, or one hundred dollars, if the applicant be a firm,
partnership or corporation, or five hundred dollars, if anonresident of West Virginia or a foreign corporation.
The
proceeds of this fee shall be deposited by the secretary of state
into the account established by section two-a, article one,
chapter fifty-nine of this code. When the secretary of state
shall be satisfied as to the good character, competency and
integrity of such applicant, or, if the applicant be a firm,
partnership or corporation, of each of the individual members or
officers thereof, he shall issue and deliver to such applicant a
certificate of license:
Provided, That such applicant shall file
in the office of the secretary of state a corporate surety bond
in the sum of two thousand five hundred dollars conditioned for
the faithful and honest conduct of such business by such
applicant, which surety bond must be written by a company
recognized and approved by the insurance commissioner of the
state and approved by the attorney general of the state with
respect to its form, manner of execution and sufficiency. Each
license issued hereunder shall be for a period of one year and
shall be revocable at all times for cause shown.
Except as hereinafter provided, no such license shall be
issued to any person who, or to a firm, partnership or
corporation if any member or officer thereof, has been convicted
in this state or any other state or territory of a felony, or any
of the following misdemeanors, or offenses, to-wit: (a)
Illegally using, carrying or possessing a pistol or other
dangerous weapon; (b) making or possessing burglar's instruments;
(c) buying or receiving stolen property; (d) unlawful entry of abuilding; (e) aiding escape from prison; (f) unlawful possessing
or distributing habit-forming narcotic drugs; or (g) any felony
offense involving moral turpitude. The provisions of this
section shall not prevent the issuance of a license to any person
who, subsequent to his conviction, shall have received executive
pardon therefor removing this disability, or who has received a
certificate of good conduct granted by the board of parole to
remove the disability under this section because of such
conviction.
CHAPTER 31. CORPORATIONS.
ARTICLE 1. BUSINESS AND NONPROFIT CORPORATIONS.
§31-1-15. Secretary of state constituted attorney-in-fact for
all corporations; manner of acceptance or service of notices
and process upon secretary of state; what constitutes
conducting affairs or doing or transacting business in this
state for purposes of this section.
The secretary of state is hereby constituted the attorney-
in-fact for and on behalf of every corporation created by virtue
of the laws of this state and every foreign corporation
authorized to conduct affairs or do or transact business herein
pursuant to the provisions of this article, with authority to
accept service of notice and process on behalf of every such
corporation and upon whom service of notice and process may be
made in this state for and upon every such corporation. No act
of such corporation appointing the secretary of state such
attorney-in-fact shall be necessary. Immediately after beingserved with or accepting any such process or notice, of which
process or notice two copies for each defendant shall be
furnished the secretary of state with the original notice or
process, together with a fee,
of five dollars as provided in
section two, article one, chapter fifty-nine of this code which
is to be deposited pursuant to section two-a, article one,
chapter fifty-nine of this code. The secretary of state shall
file in his office a copy of such process or notice, with a note
thereon endorsed of the time of service, or acceptance, as the
case may be, and transmit one copy of such process or notice by
registered or certified mail, return receipt requested, to the
person to whom notice and process shall be sent, whose name and
address were last furnished to the state officer at the time
authorized by statute to accept service of notice and process and
upon whom notice and process may be served; and if no such person
has been named, to the principal office of the corporation at the
address last furnished to the state officer at the time
authorized by statute to accept service of process and upon whom
process may be served, as required by law. No process or notice
shall be served on the secretary of state or accepted by him less
than ten days before the return day thereof. Such corporation
shall pay the annual fee prescribed by article twelve, chapter
eleven of this code for the services of the secretary of state as
its attorney-in-fact
which is to be deposited pursuant to the
provisions of section two-a, article one, chapter fifty-nine of
this code.
Any foreign corporation which shall conduct affairs or do or
transact business in this state without having been authorized so
to do pursuant to the provisions of this article shall be
conclusively presumed to have appointed the secretary of state as
its attorney-in-fact with authority to accept service of notice
and process on behalf of such corporation and upon whom service
of notice and process may be made in this state for and upon
every such corporation in any action or proceeding described in
the next following paragraph of this section. No act of such
corporation appointing the secretary of state as such attorney-
in-fact shall be necessary. Immediately after being served with
or accepting any such process or notice, of which process or
notice two copies for each defendant shall be furnished the
secretary of state with the original notice or process, together
with a fee,
of five dollars as provided in section two, article
one, chapter fifty-nine of this code, the secretary of state
shall file in his office a copy of such process or notice, with
a note thereon endorsed of the time of service or acceptance, as
the case may be, and transmit one copy of such process or notice
by registered or certified mail, return receipt requested, to
such corporation at the address of its principal office, which
address shall be stated in such process or notice. Such service
or acceptance of such process or notice shall be sufficient if
such return receipt shall be signed by an agent or employee of
such corporation, or the registered or certified mail so sent by
the secretary of state is refused by the addressee and theregistered or certified mail is returned to the secretary of
state, or to his office, showing thereon the stamp of the United
States postal service that delivery thereof has been refused, and
such return receipt or registered or certified mail is appended
to the original process or notice and filed therewith in the
clerk's office of the court from which such process or notice was
issued. No process or notice shall be served on the secretary of
state or accepted by him less than ten days before the return
date thereof. The court may order such continuances as may be
reasonable to afford each defendant opportunity to defend the
action or proceedings.
For the purpose of this section, a foreign corporation not
authorized to conduct affairs or do or transact business in this
state pursuant to the provisions of this article shall
nevertheless be deemed to be conducting affairs or doing or
transacting business herein (a) if such corporation makes a
contract to be performed, in whole or in part, by any party
thereto, in this state, (b) if such corporation commits a tort in
whole or in part in this state, or (c) if such corporation
manufactures, sells, offers for sale or supplies any product in
a defective condition and such product causes injury to any
person or property within this state notwithstanding the fact
that such corporation had no agents, servants or employees or
contacts within this state at the time of said injury. The
making of such contract, the committing of such tort or the
manufacture or sale, offer of sale or supply of such defectiveproduct as hereinabove described shall be deemed to be the
agreement of such corporation that any notice or process served
upon, or accepted by, the secretary of state pursuant to the next
preceding paragraph of this section in any action or proceeding
against such corporation arising from, or growing out of, such
contract, tort, or manufacture or sale, offer of sale or supply
of such defective product shall be of the same legal force and
validity as process duly served on such corporation in this
state.
CHAPTER 31. CORPORATIONS.
ARTICLE 1A. LIMITED LIABILITY COMPANIES.
§31-1A-16. Secretary of state constituted attorney-in-fact for
all limited liability companies; manner of acceptance or
service of notices and process upon secretary of state; what
constitutes conducting affairs or doing or transacting
business in this state for purposes of this section; venue.
(a) The secretary of state is hereby constituted the
attorney-in-fact for and on behalf of every limited liability
company created by virtue of the laws of this state and every
foreign limited liability company authorized to conduct affairs
or do or transact business herein pursuant to the provisions of
this article, with authority to accept service of notice and
process on behalf of every such limited liability company and
upon whom service of notice and process may be made in this state
for and upon every such limited liability company. No act of
such limited liability company appointing the secretary of stateattorney-in-fact shall be necessary. Immediately after being
served with or accepting any such process or notice, of which
process or notice two copies for each defendant shall be
furnished the secretary of state with the original notice or
process, together with a fee,
of five dollars as provided for in
section two, article one, chapter fifty-nine of this code for
corporations which shall be deposited pursuant to the provisions
of section two-a, article one, chapter fifty-nine of this code.
The secretary of state shall file in his office a copy of such
process or notice, with a note thereon endorsed of the time of
service or acceptance, as the case may be, and transmit one copy
of such process or notice by registered or certified mail, return
receipt requested, to the person to whom notice and process shall
be sent, whose name and address were last furnished to the state
officer at the time authorized by statute to accept service of
notice and process and upon whom notice and process may be
served; and if no such person has been named, to the principal
office of the limited liability company at the address last
furnished to the state officer at the time authorized by statute
to accept service or process and upon whom process may be served,
as required by law. No process or notice shall be served on the
secretary of state or accepted by him less than ten days before
the return day thereof. Such limited liability company shall pay
the annual fee prescribed by article twelve, chapter eleven of
this code for the services of the secretary of state as its
attorney-in-fact.
Any foreign limited liability company which shall conduct
affairs or do or transact business in this state without having
been authorized so to do pursuant to the provisions of this
article shall be conclusively presumed to have appointed the
secretary of state as its attorney-in-fact with authority to
accept service of notice and process on behalf of such limited
liability company and upon whom service of notice and process may
be made in this state for and upon every such limited liability
company in any action or proceeding described in the next
following paragraph of this section. No act of such limited
liability company appointing the secretary of state as such
attorney-in-fact shall be necessary. Immediately after being
served with or accepting any such process or notice, of which
process or notice two copies for each defendant shall be
furnished the secretary of state with the original notice or
process, together with a fee,
of five dollars as provided for in
section two, article one, chapter fifty-nine of this code for
corporations which shall be deposited pursuant to the provisions
of section two-a, article one, chapter fifty-nine of this code.
The secretary of state shall file in his office a copy of such
process or notice, with a note thereon endorsed of the time of
service or acceptance, as the case may be, and transmit one copy
of such process or notice by registered or certified mail, return
receipt requested, to such limited liability company at the
address of its principal office, which address shall be stated in
such process or notice. Such service or acceptance of suchprocess or notice shall be sufficient if such return receipt
shall be signed by an agent or employee of such limited liability
company, or the registered or certified mail so sent by the
secretary of state is refused by the addressee and the registered
or certified mail is returned to the secretary of state or to his
office showing thereon the stamp of the United States postal
service that delivery thereof has been refused, and such return
receipt of registered or certified mail is appended to the
original process or notice and filed therewith in the clerk's
office of the court from which such process or notice was issued.
No process or notice shall be served on the secretary of state or
accepted by him less than ten days before the return date
thereof. The court may order such continuances as may be
reasonable to afford each defendant opportunity to defend the
action or proceedings.
For the purpose of this section, a foreign limited liability
company not authorized to conduct affairs or do or transact
business in this state pursuant to the provisions of this article
shall nevertheless be deemed to be conducting affairs or doing or
transacting business herein: (1) If such limited liability
company makes a contract to be performed, in whole or in part, by
any party thereto, in this state; (2) if such limited liability
company commits a tort in whole or in part in this state; or (3)
if such limited liability company manufactures, sells, offers for
sale or supplies any product in a defective condition and such
product causes injury to any person or property within this statenotwithstanding the fact that such limited liability company had
no agents, servants or employees or contracts within this state
at the time of said injury. The making of such contract, the
committing of such tort or the manufacture or sale, offer of sale
or supply of such defective product as hereinabove described
shall be deemed to be the agreement of such limited liability
company that any notice or process served upon, or accepted by,
the secretary of state pursuant to the next preceding paragraph
of this section in any action or proceeding against such limited
liability company arising from, or growing out of, such contract,
tort or manufacture or sale, offer of sale or supply of such
defective product shall be of the same legal force and validity
as process duly served on such limited liability company in this
state.
(b) In all cases arising under this article wherein the
limited liability companies seeking to exercise the rights
conferred by this article, or against which any proceeding is
instituted thereunder, do not have or maintain any office, own
any property or conduct affairs or do or transact business in
this state, the circuit court of the county in which the seat of
government is located shall have original jurisdiction, except in
cases in which jurisdiction is expressly conferred upon some
other court by this article.
§31-1A-17. Fees and charges to be collected by secretary of
state.
Except as otherwise expressly provided in this article, allfees required to be charged and collected by the secretary of
state by the provisions of this article shall be charged and
collected in accordance with the provisions of section two,
article one, chapter fifty-nine of this code as applicable to
corporations
and deposited pursuant to the provisions of section
two-a, article one, chapter fifty-nine of this code.
§31-1A-56. Amendment to articles of organization of foreign
limited liability company; filing; recordation; penalty for
failure to record.
(a) Whenever the articles of organization of a foreign
limited liability company authorized to conduct affairs or do or
transact business in this state are amended, such foreign limited
liability company shall, within thirty days after such amendment
becomes effective, file in the office of the secretary of state
a copy of such amendment duly authenticated by the proper officer
of the state or country under the laws of which it is organized;
but the filing thereof shall not of itself enlarge or alter the
purpose or purposes which such limited liability company is
authorized to pursue in conducting its affairs or in doing or
transacting business in this state, nor authorize such limited
liability company to conduct affairs or do or transact business
in this state under any other name than the name set forth in its
certificate of authority.
(b) The secretary of state shall issue to such limited
liability company a certificate showing the filing of such
amendment and collect a fee
of five dollars for such for thecertificate
as provided for in section two, article one, chapter
fifty-nine of this code for corporations, which shall be
deposited pursuant to the provisions of section two-a, article
one, chapter fifty-nine of this code. The certificate so issued
by the secretary of state, together with a true copy of the
amendment, shall be recorded in the office of the clerk of the
county commission of the county in which its original certificate
of authority was recorded, pursuant to the provisions of
subsection (c), section fifty-three of this article. A failure
to comply with the provisions of this subsection within six
months from the date of such amendment shall subject such limited
liability company to a fine of not more than one thousand
dollars.
§31-1A-57. Merger of foreign limited liability company
authorized to conduct affairs or do or transact business in
this state; filing of articles of merger; recordation;
penalty for failure to record.
(a) Whenever a foreign limited liability company authorized
to conduct affairs or do or transact business in this state shall
be a party to a merger permitted by the laws of the state or
country under the laws of which it is organized, and such limited
liability company shall be the surviving limited liability
company, it shall, within thirty days after such merger becomes
effective, file with the secretary of state a copy of the
articles of merger duly authenticated by the proper officer of
the state or country under the laws of which such merger waseffected; and it shall not be necessary for such limited
liability company to procure either a new or amended certificate
of authority to conduct affairs or do or transact business in
this state unless the name of such limited liability company be
changed thereby or unless the limited liability company desires
to pursue in this state other or additional purposes than those
which it is then authorized to pursue in this state.
(b) The secretary of state shall issue to such surviving
limited liability company a certificate showing the filing of a
copy of the articles of merger and collect a fee
of five dollars
for such for the certificate
as provided for in section two,
article one, chapter fifty-nine of this code for corporations,
which shall be deposited pursuant to the provisions of section
two-a, article one, chapter fifty-nine of this code. The
certificate so issued by the secretary of state, together with a
true copy of the articles of merger, shall be recorded in the
office of the clerk of the county commission of the county in
which its original certificate of authority was recorded,
pursuant to the provisions of subsection (c), section fifty-three
of this article. A failure to comply with the provisions of this
subsection within six months from the date of such merger shall
subject such limited liability company to a fine of not more than
one thousand dollars.
CHAPTER 33. INSURANCE.
ARTICLE 4. GENERAL PROVISIONS.
§33-4-12. Service of process on licensed insurers.
The secretary of state shall be, and is hereby constituted,
the attorney-in-fact of every licensed insurer, domestic,
foreign, or alien, transacting insurance in this state, upon whom
all legal process in any action, suit or proceeding against it
shall be served, and he may accept service of such process. Such
process shall be served upon the secretary of state, or accepted
by him, in the same manner as provided for service of process
upon unlicensed insurers under subdivisions (2) and (3) of
subsection (b) of section thirteen of this article. Each
licensed insurer shall pay to the secretary of state an annual
fee,
of ten dollars as provided for in section two, article one,
chapter fifty-nine of this code, for services as authorized agent
for service of process.
The proceeds to this fee are to be
deposited pursuant to section two-a, article one, chapter fifty-
nine of this code.
§33-4-13. Service of process on unlicensed insurers.
(a) The purpose of this section is to subject certain
insurers to the jurisdiction of the courts of this state in suits
by or on behalf of insureds or beneficiaries under certain
insurance contracts and to subject said insurers to the
jurisdiction of the courts of this state in suits by or on behalf
of the insurance commissioner of West Virginia. The Legislature
declares that it is a subject of concern that certain insurers,
while not licensed to transact insurance in this state, are
soliciting the sale of insurance and selling insurance to
residents of this state, thus presenting the insurancecommissioner with the problem of resorting to courts of foreign
jurisdictions for the purpose of enforcing the insurance laws of
this state for the protection of our citizens. The Legislature
declares that it is also a subject of concern that many residents
of this state hold policies of insurance issued or delivered in
this state by insurers not licensed to transact insurance in
this state, thus presenting to such residents the often
insuperable obstacle of resorting to distant fora for the purpose
of asserting legal rights under such policies. In furtherance of
such state interest, the Legislature herein provides a method of
substituted service of process upon such insurers and declares
that in so doing it exercises its powers to protect its residents
and to define, for the purpose of this section, what constitutes
transacting insurance in this state, and also exercises powers
and privileges available to the state by virtue of public law
number fifteen, seventy-ninth Congress of the United States,
chapter twenty, first session, Senate number three hundred forty,
as amended, which declares that the business of insurance and
every person engaged therein shall be subject to the laws of the
several states.
(b) (1) Any of the following acts in this state, effected by
mail or otherwise, by an unlicensed foreign or alien insurer:
(i) The issuance or delivery of contracts of insurance to
residents of this state or to corporations authorized to do
business therein, (ii) the solicitation of applications for such
contracts, (iii) the collection of premiums, membership fees,assessments or other considerations for such contracts, or (iv)
any other transaction of business, is equivalent to and shall
constitute an appointment by such insurer of the secretary of
state and his or her successor in office, to be its true and
lawful attorney, upon whom may be served all lawful process in
any action, suit or proceeding instituted by or on behalf of an
insured or beneficiary arising out of any such contract of
insurance, and in any action, suit or proceeding which may be
instituted by the insurance commissioner in the name of any such
insured or beneficiary or in the name of the state of West
Virginia, and in any administrative proceeding before the
commissioner, and any such act shall be signification of its
agreement that such service of process is of the same legal force
and validity as personal service of process in this state upon
such insurer.
(2) Such service of process upon any such insurer or upon an
insurer pursuant to section twenty-two, article three of this
chapter in any such action or proceeding in any court of
competent jurisdiction of this state, or in any administrative
proceeding before the commissioner, may be made by serving the
secretary of state or his or her chief clerk with two copies and
an original thereof and the payment to him or her of a fee
of
five dollars. as provided for in section two, article one,
chapter fifty-nine of this code. The proceeds of this fee shall
be deposited pursuant to the provisions of section two-a, article
one, chapter fifty-nine of this code. The secretary of stateshall forward a copy of such process by registered or certified
mail to the defendant at its last-known principal place of
business and shall keep a record of all process so served upon
him or her. Such service of process is sufficient, provided
notice of such service and a copy of the process are sent within
ten days thereafter by or on behalf of the plaintiff or moving
party to the defendant, or responding party, at its last-known
principal place of business by registered or certified mail with
return receipt requested. The plaintiff or moving party shall
file with the clerk of the court in which the action is pending,
or with the judge or magistrate of such court in case there be
no clerk, or in the official records of the commissioner if an
administrative proceeding before the commissioner, an affidavit
of compliance herewith, a copy of the process and either a return
receipt purporting to be signed by the defendant or responding
party or a person qualified to receive its registered or
certified mail in accordance with the rules and customs of the
post-office department; or, if acceptance was refused by the
defendant or responding party or an agent thereof, the original
envelope bearing a notation by the postal authorities that
receipt was refused. Service of process so made shall be deemed
to have been made within the territorial jurisdiction of any
court in this state.
(3) Service of process in any such action, suit or
proceeding shall in addition to the manner provided in
subdivision (2) of this subsection (b) be valid if served uponany person within this state who, in this state on behalf of such
insurer, is
(A) Soliciting insurance, or
(B) Making, issuing or delivering any contract of insurance,
or
(C) Collecting or receiving any premium, membership fee,
assessment or other consideration for insurance:
Provided, That
notice of such service and a copy of such process are sent within
ten days thereafter, by or on behalf of the plaintiff or moving
party to the defendant or responding party at the last-known
principal place of business of the defendant or responding party,
by registered or certified mail with return receipt requested.
The plaintiff or moving party shall file with the clerk of the
court in which the action is pending, or with the judge or
magistrate of such court in case there be no clerk, or in the
official records of the commissioner if an administrative
proceeding before the commissioner, an affidavit of compliance
herewith, a copy of the process and either a return receipt
purporting to be signed by the defendant or responding party, or
a person qualified to receive its registered or certified mail in
accordance with the rules and customs of the post-office
department; or, if acceptance was refused by the defendant or
responding party, or an agent thereof, the original envelope
bearing a notation by the postal authorities that receipt was
refused.
(4) The papers referred to in subdivisions (2) and (3) ofthis subsection (b) shall be filed within thirty days after the
return receipt or other official proof of delivery or the
original envelope bearing a notation of refusal, as the case may
be, is received by the plaintiff or moving party. Service of
process shall be complete ten days after such process and the
accompanying papers are filed in accordance with this section.
(5) Nothing in this section contained shall limit or abridge
the right to serve any process, notice or demand upon any insurer
in any other manner now or hereafter permitted by law.
(c)(1) Before any unauthorized or unlicensed foreign or
alien insurer shall file or cause to be filed any pleading in any
action, suit or proceeding instituted against it, or any notice,
order, pleading or process in an administrative proceeding before
the commissioner instituted against such insurer, such
unauthorized or unlicensed insurer shall either (i) deposit with
the clerk of the court in which such action, suit or proceeding
is pending, or with the commissioner in an administrative
proceeding before the commissioner, cash or securities or file
with such clerk or the commissioner a bond with good and
sufficient sureties, to be approved by the court or the
commissioner, in an amount to be fixed by the court or
commissioner sufficient to secure the payment of any final
judgment which may be rendered in such action or administrative
proceeding:
Provided, That the court or the commissioner may in
its, his or her respective discretion make an order dispensing
with such deposit or bond where the auditor of the state shallhave certified to such court or commissioner that such insurer
maintains within this state funds or securities in trust or
otherwise sufficient and available to satisfy any final judgment
which may be entered in such action, suit or proceeding; or (ii)
procure a license to transact insurance in this state.
(2) The court or the commissioner in any action, suit or
proceeding in which service is made in the manner provided in
subdivision (2) or (3), subsection (b) of this section may, in
its, his or her respective discretion, order such postponement as
may be necessary to afford the defendant or responding party
reasonable opportunity to comply with the provisions of
subdivision (1) of this subsection (c) and to defend such action
or proceeding.
(3) Nothing in subdivision (1) of this subsection (c) is to
be construed to prevent an unauthorized or unlicensed foreign or
alien insurer from filing a motion to set aside service thereof
made in the manner provided in subdivision (2) or (3), subsection
(b) of this section on the grounds that such insurer has not
done any of the acts enumerated in subdivision (1), subsection
(b) of this section, or in section twenty-two, article three of
this chapter.
(d) In any action against an unauthorized or unlicensed
foreign or alien insurer upon a contract of insurance issued or
delivered in this state to a resident thereof or to a corporation
authorized to do business therein, if the insurer has failed for
thirty days after demand prior to the commencement of the actionto make payment in accordance with the terms of the contract, and
it appears to the court that such refusal was vexatious and
without reasonable cause, the court may allow to the plaintiff a
reasonable attorney's fee and include such fee in any judgment
that may be rendered in such action. Such fee shall not exceed
twelve and one-half percent of the amount which the court finds
the plaintiff is entitled to recover against the insurer, but in
no event shall such fee be less than twenty-five dollars.
Failure of an insurer to defend any such action shall be deemed
prima facie evidence that its failure to make payment was
vexatious and without reasonable cause.
CHAPTER 46. UNIFORM COMMERCIAL CODE.
ARTICLE 9. SECURED TRANSACTIONS; SALES OF ACCOUNTS AND CHATTEL
PAPERS.
§46-9-403. What constitutes filing; duration of filing; effect
of lapsed filing; duties of filing officer.
(1) Presentation for filing of a financing statement and
tender of the filing fee or acceptance of the statement by the
filing officer constitutes filing under this article.
(2) Except as provided in subsection (6) or in subsection
(8), a filed financing statement is effective for a period of
five years from the date of filing. The effectiveness of a filed
financing statement lapses on the expiration of the five-year
period, unless a continuation statement is filed prior to the
lapse. If a security interest perfected by filing exists at the
time insolvency proceedings are commenced by or against thedebtor, the security interest remains perfected until termination
of the insolvency proceedings and thereafter for a period of
sixty days or until expiration of the five-year period, whichever
occurs later. Upon lapse the security interest becomes
unperfected, unless it is perfected without filing. If the
security interest becomes unperfected upon lapse, it is deemed to
have been unperfected as against a person who became a purchaser
or lien creditor before lapse.
(3) A continuation statement may be filed by the secured
party within six months prior to the expiration of the five-year
period specified in subsection (2). Any such continuation
statement must be signed by the secured party, identify the
original statement by file number and state that the original
statement is still effective. A continuation statement signed by
a person other than the secured party of record must be
accompanied by a separate written statement of assignment signed
by the secured party of record and complying with subsection (2)
of section 9-405, including payment of the required fee. Upon
timely filing of the continuation statement, the effectiveness of
the original statement is continued for five years after the last
date to which the filing was effective whereupon it lapses in the
same manner as provided in subsection (2) unless another
continuation statement is filed prior to such lapse. Succeeding
continuation statements may be filed in the same manner to
continue the effectiveness of the original statement. Unless a
statute on disposition of public records provides otherwise, thefiling officer may remove a lapsed statement from the files and
destroy it immediately if he has retained a microfilm or other
photographic record, or in other cases after one year after the
lapse. The filing officer shall so arrange matters by physical
annexation of financing statements to continuation statements or
other related filings, or by other means, that if he physically
destroys the financing statements of a period more than five
years past, those which have been continued by a continuation
statement or which are still effective under subsection (6) shall
be retained.
(4) Except as provided in subsection (7), a filing officer
shall mark each statement with a file number and with the date
and hour of filing and shall hold the statement or a microfilm or
other photographic copy thereof for public inspection. In
addition the filing officer shall index the statements according
to the name of the debtor and shall note in the index the file
number and the address of the debtor given in the statement.
(5) The uniform fee for filing and indexing and for stamping
a copy furnished by the secured party to show the date and place
of filing for an original financing statement or for a
continuation statement shall be $1.00 if the statement is in the
standard form prescribed by the secretary of state and otherwise
shall be $5.00, plus in each case, if the financing statement is
subject to subsection (5) of section 9-402, $1.00. The uniform
fee for each name more than one required to be indexed shall be
$1.00. The secured party may at his option show a trade name forany person and an extra uniform indexing fee of $1.00 shall be
paid with respect thereto.
(5) The uniform fees for filing and indexing financing
statements or continuation statements and for stamping a copy
furnished by the secured party to show the date and place of
filing for an original financing statement or a continuation
statement shall be provided for in section two, article one,
chapter fifty-nine of this code, which shall be deposited
pursuant to the provisions of section two-a, article one, chapter
fifty-nine of this code. There shall be a fee for filing a
financing statement or a continuation statement on a standard
form prescribed by the secretary of state and a separate fee for
filing a nonstandard form.
(6) If the debtor is a transmitting utility (subsection (5)
of section 9-401) and a filed financing statement so states, it
is effective until a termination statement is filed. A real
estate mortgage which is effective as a fixture filing under
subsection (6) of section 9-402 remains effective as a fixture
filing until the mortgage is released or satisfied of record or
its effectiveness otherwise terminates as to the real estate.
(7) When a financing statement covers timber to be cut or
covers minerals or the like (including oil and gas) or accounts
subject to subsection (5) of section 9-103, or is filed as a
fixture filing, it shall be filed for record and the filing
officer shall index it under the names of the debtor and any
owner of record shown on the financing statement in the samefashion as if they were the mortgagors in a mortgage of the real
estate described, and, to the extent that the law of this state
provides for indexing of mortgages under the name of the
mortgagee, under the name of the secured party as if he were the
mortgagee thereunder, or where indexing is by description in the
same fashion as if the financing statement were a mortgage of the
real estate described.
(8) Notwithstanding any provision of this code to the
contrary, a filed financing statement on public bond issues of
counties, municipalities or public service districts of this
state shall be effective for the life of such bond issues without
the need for filing continuation statements.
§46-9-404. Termination statement.
(1) If a financing statement covering consumer goods is
filed on or after the first day of July, 1975, then within one
month or within ten days following written demand by the debtor
after there is no outstanding secured obligation and no
commitment to make advances, incur obligations or otherwise give
value, the secured party must file with each filing officer with
whom the financing statement was filed, a termination statement
to the effect that he no longer claims a security interest under
the financing statement, which shall be identified by file
number. In other cases whenever there is no outstanding secured
obligation and no commitment to make advances, incur obligations
or otherwise give value, the secured party must on written demand
by the debtor send the debtor, for each filing officer with whomthe financing statement was filed, a termination statement to the
effect that he no longer claims a security interest under the
financing statement, which shall be identified by file number.
A termination statement signed by a person other than the secured
party of record must be accompanied by a separate written
statement of assignment signed by the secured party of record
complying with subsection (2) of section 9-405, including payment
of the required fee. If the affected secured party fails to file
such a termination statement as required by this subsection, or
to send such a termination statement within ten days after proper
demand therefor he shall be liable to the debtor for one hundred
dollars, and in addition for any loss caused to the debtor by
such failure.
(2) On presentation to the filing officer of such a
termination statement he must note it in the index. If he has
received the termination statement in duplicate, he shall return
one copy of the termination statement to the secured party
stamped to show the time of receipt thereof. If the filing
officer has a microfilm or other photographic record of the
financing statement, and of any related continuation statement,
statement of assignment and statement of release, he may remove
the originals from the files at any time after receipt of the
termination statement, or if he has no such record, he may remove
them from the files at any time after one year after receipt of
the termination statement.
(3) If the termination statement is in the standard formprescribed by the secretary of state, the uniform fee for filing
and indexing the termination statement shall be $1.00, and
otherwise shall be $5.00, plus in each case an additional fee of
$1.00 for each name more than one against which the termination
statement is required to be indexed.
(3) The uniform fees for filing and indexing termination
statements shall be provided for in section two, article
one, chapter fifty-nine of this code, which shall be deposited
pursuant to the provisions of section two-a, article one, chapter
fifty-nine of this code. There shall be a fee for filing a
termination statement on a standard form prescribed by the
secretary of state and a separate fee for filing a nonstandard
form.
§46-9-405. Assignment of security interest; duties of filing
officer; fees.
(1) A financing statement may disclose an assignment of a
security interest in the collateral described in the financing
statement by indication in the financing statement of the name
and address of the assignee or by an assignment itself or a copy
thereof on the face or back of the statement. On presentation to
the filing officer of such a financing statement the filing
officer shall mark the same as provided in section 9-403 (4). The
uniform fee for filing, indexing and furnishing filing data for
a financing statement so indicating an assignment shall be $1.00
if the statement is in the standard form prescribed by the
secretary of state and otherwise shall be $5.00, plus in eachcase an additional fee of $1.00 for each name more than one
against which the financing statement is required to be indexed.
(2) A secured party may assign of record all or a part of
his rights under a financing statement by the filing in the place
where the original financing statement was filed of a separate
written statement of assignment signed by the secured party of
record and setting forth the name of the secured party of record
and the debtor, the file number and the date of filing of the
financing statement and the name and address of the assignee and
containing a description of the collateral assigned. A copy of
the assignment is sufficient as a separate statement if it
complies with the preceding sentence. On presentation to the
filing officer of such a separate statement, the filing officer
shall mark such separate statement with the date and hour of the
filing. He shall note the assignment on the index of the
financing statement, or in the case of a fixture filing, or a
filing covering timber to be cut, or covering minerals or the
like (including oil and gas) or accounts subject to subsection
(5) of section 9-103, he shall index the assignment under the
name of the assignor as grantor and, to the extent that the law
of this state provides for indexing the assignment of a mortgage
under the name of the assignee, he shall index the assignment of
the financing statement under the name of the assignee. The
uniform fee for filing, indexing and furnishing filing data about
such a separate statement of assignment shall be $1.00 if the
statement is in the standard form prescribed by the secretary ofstate and otherwise shall be $5.00, plus in each case an
additional fee of $1.00 for each name more than one against which
the statement of assignment is required to be indexed.
Notwithstanding the provisions of this subsection, an assignment
of record of a security interest in a fixture contained in a
mortgage effective as a fixture filing (subsection (6) of section
9-402) may be made only by an assignment of the mortgage in the
manner provided by the law of this state other than this chapter.
(3) After the disclosure or filing of an assignment under
this section, the assignee is the secured party of record.
(3) The uniform fees for filing, indexing and furnishing
filing data about such separate statements of assignment
shall be provided for in section two, article one, chapter fifty-
nine of this code, which shall be deposited pursuant to the
provisions of section two-a, article one, chapter fifty-nine of
this code. There shall be a fee for filing a statement of
assignment on a standard form prescribed by the secretary of
state and a separate fee for filing a nonstandard form.
§46-9-406. Release of collateral; duties of filing officer; fees.
A secured party of record may by his signed statement
release all or a part of any collateral described in a filed
financing statement. The statement of release is sufficient if
it contains a description of the collateral being released, the
name and address of the debtor, the name and address of the
secured party, and the file number of the financing statement. A statement of release signed by a person other than the secured
party of record must be accompanied by a separate written
statement of assignment signed by the secured party of record and
complying with subsection (2) of section 9-405, including payment
of the required fee. Upon presentation of such a statement of
release to the filing officer he shall mark the statement with
the hour and date of filing and shall note the same upon the
margin of the index of the filing of the financing statement.
The uniform fee for filing and noting such a statement of release
shall be $1.00 if the statement is in the standard form
prescribed by the secretary of state and otherwise shall be
$5.00, plus in each case an additional fee of $1.00 for each name
more than one against which the statement of release is required
to be indexed.
The uniform fees for filing and noting such a statement of
release shall be provided for in section two, article one,
chapter fifty-nine of this code, which shall be deposited
pursuant to the provisions of section two-a, article one, chapter
fifty-nine of this code. There shall be a fee for filing a
statement of release on a standard form prescribed by the
secretary of state and a separate fee for filing a nonstandard
form.
§46-9-407. Information from filing officer; central indexing
system for recording security interest in farm products;
contents.
(1) If the person filing any financing statement,termination statement, statement of assignment, or statement of
release, furnishes the filing officer a copy thereof, the filing
officer shall upon request note upon the copy the file number and
date and hour of the filing of the original and deliver or send
the copy to such person.
(2) Upon request of any person, the secretary of state shall
issue his certificate showing whether there is on file in his
office on the date and hour stated therein, any presently
effective financing statement naming a particular debtor and any
statement of assignment thereof and if there is, giving the date
and hour of filing of each such statement and the names and
addresses of each secured party therein. The uniform fee for
such a certificate shall be three dollars if the request for the
certificate is in the standard form prescribed by the secretary
of state and otherwise shall be five dollars plus fifty cents for
each financing statement and for each statement of assignment
reported therein. Upon request the filing officer shall furnish
a copy of any filed financing statement or statement of
assignment for a uniform fee of fifty cents per page.
(3) The secretary of state shall develop and implement a
central indexing system containing the information filed with his
office pursuant to subsection four, section three hundred seven
of this article. Under this system, the secretary shall record
the date and time of filing and compile the information into a
master list organized according to farm products. The list shall
be organized within each farm product category in alphabeticalorder according to the last name of the borrower, or in the case
of borrowers doing business other than as individuals, the first
word in the name of such borrower in numerical order according to
the social security or taxpayer identification number of the
borrower, geographically by county and by crop year. The master
list shall also contain the name and address of the secured
party, the name and address of the borrower, a description of the
farm products, including amount where applicable, subject to the
security interest, and a reasonable description of the real
estate, including the county where or upon which the farm
products are located.
(4) The secretary of state shall maintain a list of all
buyers of farm products, commission merchants and selling agents
who register with the secretary of state indicating an interest
in receiving the lists described in subsection five of this
section.
(5) The secretary of state shall distribute on a regular
basis as determined by the secretary of state to each buyer,
commission merchant and selling agent registered under subsection
four, a copy in written or printed form of those portions of the
master list which the buyer, commission merchant or selling agent
has indicated an interest in receiving.
(6) Upon the request of any person, the secretary of state
shall provide within twenty-four hours an oral confirmation of
the filing of the form described in subsection four, section
three hundred seven of this article, followed by a writtenconfirmation.
(7) All fees and moneys collected by the secretary of state
pursuant to the provisions of this article shall be deposited
by
the secretary of state in a separate fund in the state treasury
and shall be expended solely for the purposes of this article,
unless otherwise provided by appropriation or other action of the
Legislature pursuant to the provisions of section two-a, article
one, chapter fifty-nine of this code. Any fees collected by the
secretary under this article prior to the effective date of this
subsection, as amended, shall be subject to the provisions of law
that were in effect at the time such fees were collected.
(8) The secretary of state shall, pursuant to the provisions
of article three, chapter twenty-nine-a of this code, promulgate
rules and set fees, not otherwise provided for by general law, to
carry out the duties associated with this article.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT
AND PROTECTION ACT.
ARTICLE 2. CONSUMER CREDIT PROTECTION.
§46A-2-137. Service of process on certain nonresidents.
Any nonresident person, except a nonresident corporation
authorized to do business in this state pursuant to the
provisions of chapter thirty-one of this code, who takes or holds
any negotiable instrument, nonnegotiable instrument, or contract
or other writing, arising from a consumer credit sale or consumer
lease which is subject to the provisions of this article, other
than a sale or lease primarily for an agricultural purpose, orwho is a lender subject to the provisions of section one hundred
three of this article, shall be conclusively presumed to have
appointed the secretary of state as his attorney-in-fact with
authority to accept service of notice and process in any action
or proceeding brought against him arising out of such consumer
credit sale, consumer lease or consumer loan. A person shall be
considered a nonresident hereunder if he is a nonresident at the
time such service of notice and process is sought. No act of
such person appointing the secretary of state shall be necessary.
Immediately after being served with or accepting any such process
or notice, of which process or notice two copies for each
defendant shall be furnished the secretary of state with the
original notice or process, together with a fee,
of two dollars
as provided for in section two, article one, chapter fifty-nine
of this code, which shall be deposited pursuant to the provisions
of section two-a, article one, chapter fifty-nine of this code.
The secretary of state shall file in his office a copy of such
process or notice, with a note thereon endorsed of the time of
service or acceptance, as the case may be, and transmit one copy
of such process or notice by registered or certified mail, return
receipt requested, to such person at his address, which address
shall be stated in such process or notice:
Provided, That such
return receipt shall be signed by such person or an agent or
employee of such person if a corporation, or the registered or
certified mail so sent by said secretary of state is refused by
the addressee and the registered or certified mail is returned tosaid secretary of state, or to his office, showing thereon the
stamp of the U.S. postal service that delivery thereof has been
refused, and such return receipt or registered or certified mail
is appended to the original process or notice and filed therewith
in the clerk's office of the court from which such process or
notice was issued. But no process or notice shall be served on
the secretary of state or accepted fewer than ten days before the
return date thereof. The court may order such continuances as
may be reasonable to afford each defendant opportunity to defend
the action or proceeding.
The provisions for service of process or notice herein are
cumulative and nothing herein contained shall be construed as a
bar to the plaintiff in any action from having process or notice
in such action served in any other mode and manner provided by
law.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 8. TRADE NAMES.
§47-8-4. Corporations, associations and limited partnerships not
to conduct business under assumed name without filing
certificate of true name; filing, recordation and indexing
of certificates filed; issuance of certificate of true name.
(a) No corporation, limited partnership or association
required to register with the secretary of state in order to
conduct business within the state may conduct or transact any
business in this state under any assumed name, or under any
designation, name or style, corporate or otherwise, other thanthe name established by the certificate of incorporation,
authority, association or limited partnership, unless the
corporation, limited partnership or association files in the
office of the secretary of state a certificate of registration
of true name setting forth the name or names under which such
business is, or is to be, conducted or transacted, with the
address of the principal office within the state or, if no office
is maintained within the state, the address of the principal
office in the state in which the corporation, association or
limited partnership is established. A new certificate of
registration is to be filed if the corporation, limited
partnership or association desires to conduct or transact any
business in this state under any other assumed name not on file
in the office of the secretary of state.
(b) Two executed originals of the application for true name
registration shall be delivered to the secretary of state. If
the filing officer finds that the application for true name
registration conforms to law, he or she shall, when all fees have
been paid as prescribed by
law section two, article one, chapter
fifty-nine of this code: (i) Endorse on each of the originals
the word "filed" and the month, day and year of the filing; (ii)
file one of the originals; and (iii) issue to the applicant the
certificate of registration of true name with the other original
attached.
The proceeds of these fees shall be deposited pursuant
to the provisions of section two-a, article one, chapter fifty-
nine of this code.
(c) Upon discontinuing the use of a name other than the name
established by the certificate of incorporation, authority,
association or limited partnership, the certificate of
registration of true name shall be withdrawn by filing a
certificate of withdrawal with the office of the secretary of
state setting forth the name to be discontinued, the real name,
the address of the party transacting business and the date upon
which the original certificate of registration of true name was
filed.
(d) Any corporation authorized to transact business in this
state shall procure an amended certificate of incorporation in
the event it changes its corporate name by filing articles of
amendment with the office of the secretary of state as provided
in article one, chapter thirty-one of this code.
(e) A domestic corporation, limited partnership or
association having its principal office within the state shall
file a certified copy of any certificate of true name with the
clerk of the county commission of the county in which the
principal office is located. A foreign corporation, limited
partnership or association having its principal office outside
the state shall file a certified copy of any such certificate
with the clerk of the county commission of a county in which its
principal business is transacted.
(f) The secretary of state shall keep an alphabetical index
of all persons filing certificates provided for in this section.
(g) Any corporation registering a true name pursuant to theprovisions of this section is subject to the limitations set
forth in subsection (c), section eleven, article one, chapter
thirty-one of this code regarding use of the words "engineer,"
"engineers," "engineering," or any combination thereof.
ARTICLE 9. UNIFORM LIMITED PARTNERSHIP ACT.
§47-9-4. Secretary of state constituted attorney-in-fact for all
limited partnerships; manner of acceptance or service of
notice and process upon secretary of state; what constitutes
conducting affairs or doing or transacting business in this
state for purposes of this section.
The secretary of state is hereby constituted the attorney-
in-fact for and on behalf of every limited partnership created by
virtue of the laws of this state and every foreign limited
partnership authorized to conduct affairs or do or transact
business herein pursuant to the provisions of this article, with
authority to accept service of notice and process on behalf of
every such limited partnership and upon whom service of notice
and process may be made in this state for and upon every such
limited partnership. No act of such limited partnership
appointing the secretary of state such attorney-in-fact shall be
necessary. Immediately after being served with or accepting any
such process or notice, of which process or notice two copies for
each defendant shall be furnished the secretary of state with the
original notice or process, together with a fee,
of five dollars
as provided for in section two, article one, chapter fifty-nine
of this code, which shall be deposited pursuant to the provisionsof section two-a, article one, chapter fifty-nine of this code.
The secretary of state shall file in his office a copy of such
process or notice, with a note thereon endorsed of the time of
service or acceptance, as the case may be, and transmit one copy
of such process or notice by registered or certified mail, return
receipt requested, to the person to whom notice and process shall
be sent, whose name and address were last furnished to the state
officer at the time authorized by statute to accept service of
notice and process and upon whom notice and process may be
served; and if no such person has been named, to the principal
office of the limited partnership at the address last furnished
to the state officer at the time authorized by statute to accept
service of process and upon whom process may be served, as
required by law. No process or notice shall be served on the
secretary of state or accepted by him less than ten days before
the return day thereof. Such limited partnership shall pay the
annual fee prescribed by article twelve, chapter eleven of this
code for the services of the secretary of state as its attorney-
in-fact.
Any foreign limited partnership which shall conduct affairs
or do or transact business in this state without having been
authorized so to do pursuant to the provisions of this article
shall be conclusively presumed to have appointed the secretary of
state as its attorney-in-fact with authority to accept service of
notice and process on behalf of such limited partnership and upon
whom service of notice and process may be made in this state forand upon every such limited partnership in any action or
proceeding described in the next following paragraph of this
section. No act of such limited partnership appointing the
secretary of state as such attorney-in-fact shall be necessary.
Immediately after being served with or accepting any such process
or notice, of which process or notice two copies for each
defendant shall be furnished the secretary of state with the
original notice or process, together with a fee,
of five dollars
as provided for in section two, article one, chapter fifty-nine
of this code, which shall be deposited pursuant to the provisions
of section two-a, article one, chapter fifty-nine of this code,
the secretary of state shall file in his office a copy of such
process or notice, with a note thereon endorsed of the time of
service or acceptance, as the case may be, and transmit one copy
of such process or notice by registered or certified mail, return
receipt requested, to such limited partnership at the address of
its principal office, which address shall be stated in such
process or notice. Such service or acceptance of such process or
notice shall be sufficient if such return receipt shall be signed
by an agent or employee of such limited partnership, or the
registered or certified mail so sent by the secretary of state is
refused by the addressee and the registered or certified mail is
returned to the secretary of state, or to his office, showing
thereon the stamp of the United States postal service that
delivery thereof has been refused, and such return receipt or
registered or certified mail is appended to the original processor notice and filed therewith in the clerk's office of the court
from which such process or notice was issued. No process or
notice shall be served on the secretary of state or accepted by
him less than ten days before the return date thereof. The court
may order such continuances as may be reasonable to afford each
defendant opportunity to defend the action or proceedings.
For the purpose of this section, a foreign limited
partnership not authorized to conduct affairs or do or transact
business in this state pursuant to the provisions of this article
shall nevertheless be deemed to be conducting affairs or doing or
transacting business herein (a) if such limited partnership makes
a contract to be performed, in whole or in part, by any party
thereto in this state, (b) if such limited partnership commits a
tort in whole or in part in this state, or (c) if such limited
partnership manufactures, sells, offers for sale or supplies any
product in a defective condition and such product causes injury
to any person or property within this state notwithstanding the
fact that such limited partnership had no agents, servants or
employees or contacts within this state at the time of said
injury. The making of such contract, the committing of such tort
or the manufacture or sale, offer of sale or supply of such
defective product as hereinabove described shall be deemed to be
the agreement of such limited partnership that any notice or
process served upon, or accepted by, the secretary of state
pursuant to the next preceding paragraph of this section in any
action or proceeding against such limited partnership arisingfrom or growing out of such contract, tort or manufacture or
sale, offer of sale or supply of such defective product shall be
of the same legal force and validity as process duly served on
such limited partnership in this state.
CHAPTER 56. PLEADING AND PRACTICE.
ARTICLE 3. WRITS, PROCESS AND ORDER OF PUBLICATION.
§56-3-31. Actions by or against nonresident operators of motor
vehicles involved in highway accidents; appointment of
secretary of state, insurance company, as agents; service of
process.
(a) Every nonresident, for the privilege of operating a
motor vehicle on a public street, road or highway of this
state,
either personally or through an agent, appoints the secretary of
state, or his or her successor in office, to be his or her agent
or attorney-in-fact upon whom may be served all lawful process in
any action or proceeding against him or her in any court of
record in this state arising out of any accident or collision
occurring in the state of West Virginia in which such nonresident
may be involved:
Provided, That in the event process against a
nonresident defendant cannot be effected through the secretary of
state, as provided by this section, for the purpose only of
service of process, such nonresident motorist shall be deemed to
have appointed as his or her agent or attorney-in-fact any
insurance company which has a contract of automobile or liability
insurance with said nonresident defendant.
(b) For purposes of service of process as provided in thissection, every insurance company shall be deemed the agent or
attorney-in-fact of every nonresident motorist insured by such
company if the insured nonresident motorist is involved in any
accident or collision in this state and service of process cannot
be effected upon said nonresident through the office of the
secretary of state. Upon receipt of process as hereinafter
provided, the insurance company may, within thirty days, file an
answer or other pleading or take any action allowed by law on
behalf of the defendant.
(c) A nonresident operating a motor vehicle in this state,
either personally or through an agent, is deemed to acknowledge
the appointment of the secretary of state, or, as the case may
be, his or her automobile insurance company, as his or her agent
or attorney-in-fact, or the agent or attorney-in-fact of his or
her administrator, administratrix, executor or executrix in the
event the nonresident dies, and furthermore is deemed to agree
that any process against him or her or against his or her
administrator, administratrix, executor or executrix, which is
served in the manner hereinafter provided, shall be of the same
legal force and validity as though said nonresident or his or her
administrator, administratrix, executor or executrix were
personally served with a summons and complaint within this state.
Any action or proceeding may be instituted, continued or
maintained on behalf of or against the administrator,
administratrix, executor or executrix of any nonresident who dies
during or subsequent to an accident or collision resulting fromthe operation of a motor vehicle in this state by the nonresident
or his or her duly authorized agent.
(d) At the time of filing a complaint against a nonresident
motorist who has been involved in an accident or collision in the
state of West Virginia and before a summons is issued thereon,
the plaintiff, or someone for him or her, shall execute a bond in
the sum of one hundred dollars before the clerk of the court in
which the action is filed, with surety to be approved by said
clerk, conditioned that on failure of the plaintiff to prevail in
the action he or she will reimburse the defendant, or cause the
defendant to be reimbursed, the necessary expense incurred in the
defense of the action in this state. Upon the issue of a summons
the clerk will certify thereon that the bond has been given and
approved.
(e) Service of process upon a nonresident defendant shall be
made by leaving the original and two copies of both the summons
and complaint, together with the bond certificate of the clerk,
and a fee
of five dollars with the secretary of state, or in his
or her office,
and said as provided for in section two, article
one, chapter fifty-nine of this code, which shall be deposited
pursuant to the provisions of section two-a, article one, chapter
fifty-nine of this code. The service shall be sufficient upon
the nonresident defendant or, if a natural person, his or her
administrator, administratrix, executor or executrix:
Provided,
That notice of service and a copy of the summons and complaint
shall be sent by registered or certified mail, return receiptrequested, by the secretary of state to the nonresident
defendant. The return receipt signed by the defendant or his or
her duly authorized agent shall be attached to the original
summons and complaint and filed in the office of the clerk of the
court from which process is issued. In the event the registered
or
certified mail sent by the secretary of state is refused or
unclaimed by the addressee or if the addressee has moved without
any forwarding address, the registered or certified mail returned
to the secretary of state, or to his or her office, showing
thereon the stamp of the post
office department that delivery has
been refused or not claimed or that the addressee has moved
without any forwarding address, shall be appended to the original
summons and complaint and filed in the clerk's office of the
court from which process issued. The court may order such
continuances as may be reasonable to afford the defendant
opportunity to defend the action.
(f) The fee,
of five dollars as provided for in section two,
article one, chapter fifty-nine of this code remitted to the
secretary of state at the time of service, shall be taxed in the
costs of the proceeding.
and the secretary of state shall pay
into the state treasury all funds so coming into his or her hands
from such service The secretary of state shall keep a record in
his or her office of all service of process and the day and hour
of service thereof.
(g) In the event service of process upon a nonresident
defendant cannot be effected through the secretary of state asprovided by this section, service may be made upon the
defendant's insurance company. The plaintiff must file with the
clerk of the circuit court an affidavit alleging that the
defendant is not a resident of this state; that process directed
to the secretary of state was sent by registered or certified
mail, return receipt requested; that the registered or certified
mail was returned to the office of the secretary of state showing
the stamp of the post office department that delivery was refused
or that the notice was unclaimed or that the defendant addressee
moved without any forwarding address; and that the secretary of
state has complied with the provisions of subsection (e) herein.
Upon receipt of process the insurance company may, within thirty
days, file an answer or other pleading and take any action
allowed by law in the name of the defendant.
(h) The following words and phrases, when used in this
article, shall, for the purpose of this article and unless a
different intent on the part of the Legislature is apparent from
the context, have the following meanings:
(1) "Duly authorized agent" means and includes, among
others, a person who operates a motor vehicle in this state for
a nonresident as defined in this section and chapter, in
pursuit of business, pleasure or otherwise, or who comes into
this state and operates a motor vehicle for, or with the
knowledge or acquiescence of, a nonresident; and includes, among
others, a member of the family of such nonresident or a person
who, at the residence, place of business or post office of suchnonresident, usually receives and acknowledges receipt for mail
addressed to the nonresident.
(2) "Motor vehicle" means and includes any self-propelled
vehicle, including motorcycle, tractor and trailer, not operated
exclusively upon stationary tracks.
(3) "Nonresident" means any person who is not a resident of
this state or a resident who has moved from the state subsequent
to an accident or collision, and among others includes a
nonresident firm, partnership, corporation or voluntary
association, or a firm, partnership, corporation or voluntary
association that has moved from the state subsequent to an
accident or collision.
(4) "Nonresident plaintiff or plaintiffs" means a
nonresident who institutes an action in a court in this state
having jurisdiction against a nonresident in pursuance of the
provisions of this article.
(5) "Nonresident defendant or defendants" means a
nonresident motorist who, either personally or through his or her
agent, operated a motor vehicle on a public street, highway or
road in this state and was involved in an accident or collision
which has given rise to a civil action filed in any court in this
state.
(6) "Street," "road" or "highway" means the entire width
between property lines of every way or place of whatever nature
when any part thereof is open to the use of the public, as a
matter of right, for purposes of vehicular traffic.
(7) "Insurance company" means any firm, corporation,
partnership or other organization which issues automobile
insurance.
(i) The provision for service of process herein is
cumulative and nothing herein contained shall be construed as a
bar to the plaintiff in any action from having process in such
action served in any other mode and manner provided by law.
§56-3-33. Actions by or against nonresident persons having
certain contracts with this state; authorizing secretary of
state to receive process; bond and fees; service of
process; definitions; retroactive application.
(a) The engaging by a nonresident, or by his duly authorized
agent, in any one or more of the acts specified in subdivisions
(1) through (7) of this subsection shall be deemed equivalent to
an appointment by such nonresident of the secretary of state, or
his successor in office, to be his true and lawful attorney upon
whom may be served all lawful process in any action or proceeding
against him, in any circuit court in this state, including an
action or proceeding brought by a nonresident plaintiff or
plaintiffs, for a cause of action arising from or growing out of
such act or acts, and the engaging in such act or acts shall be
a signification of such nonresident's agreement that any such
process against him, which is served in the manner hereinafter
provided, shall be of the same legal force and validity as though
such nonresident were personally served with a summons and
complaint within this state:
(1) Transacting any business in this state;
(2) Contracting to supply services or things in this state;
(3) Causing tortious injury by an act or omission in this
state;
(4) Causing tortious injury in this state by an act or
omission outside this state if he regularly does or solicits
business, or engages in any other persistent course of conduct,
or derives substantial revenue from goods used or consumed or
services rendered in this state;
(5) Causing injury in this state to any person by breach of
warranty expressly or impliedly made in the sale of goods outside
this state when he might reasonably have expected such person to
use, consume or be affected by the goods in this state:
Provided, That he also regularly does or solicits business, or
engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered in this state;
(6) Having an interest in, using or possessing real property
in this state; or
(7) Contracting to insure any person, property or risk
located within this state at the time of contracting.
(b) When jurisdiction over a nonresident is based solely
upon the provisions of this section, only a cause of action
arising from or growing out of one or more of the acts specified
in subdivisions (1) through (7), subsection (a) of this section
may be asserted against him.
(c) At the time of filing a complaint and before a summons
is issued thereon, the plaintiff, or someone for him, shall
execute a bond in the sum of one hundred dollars before the clerk
of the court, with surety to be approved by said clerk,
conditioned that on failure of the plaintiff to prevail in the
action or proceeding that he will reimburse the defendant, or
cause him to be reimbursed, the necessary taxable costs incurred
by him in and about the defense of the action or proceeding in
this state, and upon the issuance of a summons, the clerk shall
certify thereon that such bond has been given and approved.
Service shall be made by leaving the original and two copies of
both the summons and the complaint with the certificate aforesaid
of the clerk thereon, and a fee
of five dollars with the
secretary of state, or in his office,
and such as provided for in
section two, article one, chapter fifty-nine of this code, which
shall be deposited pursuant to the provisions of section two-a,
article one, chapter fifty-nine of this code. The service shall
be sufficient upon such nonresident:
Provided, That notice of
such service and a copy of the summons and complaint shall
forthwith be sent by registered or certified mail, return receipt
requested, by the secretary of state to the defendant and the
defendant's return receipt signed by himself or his duly
authorized agent or the registered or certified mail so sent by
the secretary of state which is refused by the addressee and
which registered or certified mail is returned to the secretary
of state, or to his office, showing thereon the stamp of thepost-office department that delivery has been refused, shall be
appended to the original summons and complaint and filed
therewith in the clerk's office of the court from which process
issued. If any defendant served with summons and complaint fails
to appear and defend within thirty days of service, judgment by
default may be rendered against him at any time thereafter. The
court may order such continuances as may be reasonable to afford
the defendant opportunity to defend the action or proceeding.
(d) The fee,
of five dollars as provided for in section two,
article one, chapter fifty-nine of this code remitted to the
secretary of state at the time of service, shall be taxed in the
costs of the action or proceeding.
and the secretary of state
shall pay into the state treasury all funds so coming into his
hands from such service The secretary of state shall keep a
record in his office of all such process and the day and hour of
service thereof.
(e) The following words and phrases, when used in this
section, shall for the purpose of this section and unless a
different intent be apparent from the context, have the following
meanings:
(1) "Duly authorized agent" means and includes among others
a person who, at the direction of or with the knowledge or
acquiescence of a nonresident, engages in such act or acts and
includes among others a member of the family of such nonresident
or a person who, at the residence, place of business or post
office of such nonresident, usually receives and receipts formail addressed to such nonresident.
(2) "Nonresident" means any person, other than voluntary
unincorporated associations, who is not a resident of this state
or a resident who has moved from this state subsequent to
engaging in such act or acts, and among others includes a
nonresident firm, partnership or corporation or a firm,
partnership or corporation which has moved from this state
subsequent to any of said such act or acts.
(3) "Nonresident plaintiff or plaintiffs" means a
nonresident of this state who institutes an action or proceeding
in a circuit court in this state having jurisdiction against a
nonresident of this state pursuant to the provisions of this
section.
(f) The provision for service of process herein is
cumulative and nothing herein contained shall be construed as a
bar to the plaintiff in any action or proceeding from having
process in such action served in any other mode or manner
provided by the law of this state or by the law of the place in
which the service is made for service in that place in an action
in any of its courts of general jurisdiction.
(g) This section shall not be retroactive and the provisions
hereof shall not be available to a plaintiff in a cause of action
arising from or growing out of any of said acts occurring prior
to the effective date of this section.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-2. Fees to be charged by secretary of state.
Except as may be otherwise provided in article one, chapter
thirty-one of this code The secretary of state shall charge for
services rendered in his office the following fees to be paid by
the person to whom the service is rendered at the time it is
done:
For each certificate of incorporation or
certified copy thereof,
including restatements of any such certificates issued on new agreements,
and/or consolidations or all certificates ofmerger or consolidation or certificates authorizing aforeign
corporation to do business within this state
whether for profit or nonprofit $10.00 $
20.00
For reserving a corporate name for one hundred
twenty days 10.00
For each certified copy of certificate of
incorporation, not to exceed ten pages 10.00
If such copy contains in excess of ten pages,
for each additional page
.20 .25
For registering a nonresident corporate name25.00
For filing and recording a trademark
5.00 10.00
For filing and recording a true name10.00
For each certificate of change of name, of
increase or decrease of authorized capital
stock, of change of principal office, or of
amendment to certificate of incorporation,
or certificate of withdrawal or dissolution 5.00 10.00
For recording a power of attorney and certificate
thereof 3.00
For recording a merger or consolidation (per party)10.00
For any other certificate, whether required by
law or made at the request of any person
5.0010.00
For issuing a good standing certificate10.00
The foregoing fees shall include the tax on the
great seal or the less seal impressed on any
such document, as well as the filing, recording
and indexing of the same.
For endorsing and filing reports of corporations,
and all other papers, which shall include the
indexing of the same, for each report or paper
filed 1.00
For any search, not less than
1.00 3.00
For searches of more than one hour, for each hour
or fraction thereof consumed in making such
search
5.00 10.00
The cost of the search shall be in addition to the
cost of any certificate issued pursuant thereto
or based thereon.
For filing a limited partnership agreement, whether
domestic or foreign25.00
For amendments: Changes in agents, limited partner
contributions, general partners, etc.25.00
For entering statement of satisfaction of
conditional sale contract 1.00
For filing each financing, continuation,
assignment release or
termination statement or other statement or
writing permitted to be filed under chapter
forty-six of the code
in the standard form 3.00
For the nonstandard filing 5.00
For recording any paper for which no specific fee
is prescribed 1.00
Or at the rate, for each one hundred words recorded, of .20
For issuing commission to a notary public, or to a
commissioner of deeds, which shall include the tax
on the state seal thereon and other charges 5.00
For a testimonial 1.50
For a copy of any paper, if one sheet 1.00
For each sheet of copy after the first .75
For issuing a commission to a commissioner in any other
state 5.00
Annual fee for serving as statutory attorney-in-fact
for all corporations, limited partnerships and
licensed insurers15.00
Fee for accepting service of process in any action
where the secretary of state has been appointed
(per defendant)10.00
For any other work or service not herein enumerated,
such fee as may be elsewhere prescribed.
§59-1-2a. Fees collected by secretary of state to maintain the
office of the secretary of state.
The fees charged and collected by the secretary of state
under the provisions of this article shall be deposited by the
secretary of state in a separate fund in the state treasury to be
drawn upon and expended by the secretary of state solely for the
purpose of carrying out the functions of the secretary of state's
office. At the end of each fiscal year, any funds remaining in
the account shall be placed into the general revenue fund of the
state.
§59-1-4. Fees collected by auditor and clerk of supreme court
of appeals to be paid into state treasury; accounts;
reports.
The fees to be charged by the auditor
secretary of state and
clerk of the supreme court of appeals, by virtue of this article
or any other law, shall be the property of the state of West
Virginia, and they and each of them shall account for and pay
into the state treasury at least once every thirty days all of
such fees, by any of them collected, or appearing to be due to
the state, to the credit of the general state fund. The auditor,
secretary of state and clerk of the supreme court of appeals
shall each keep a complete and accurate account by items of all
fees collected by them, and the nature of the services rendered
for which such fees were charged and collected, in one or more
well-bound books kept for the purpose, which books shall at alltimes be open for inspection and examination by the governor or
any other state officer, or member of the Legislature, or any
party interested.
The secretary of state, auditor and clerk of the supreme
court of appeals shall each, within twenty days after the close
of each month, make a report for the preceding month, in which
each shall set out in detail every payment of money made to him,
and show by whom it was paid, and for what purpose. The reports
of the secretary of state and clerk of the supreme court of
appeals shall be filed in the office of the auditor, and the
report of the auditor shall be filed in the office of the
secretary of state. If any of said officers shall fail to make
and file such monthly report in any month within the time named,
it shall be the duty of the officer in whose office it is
required to be filed to report in writing the fact of such
failure to the governor. All such reports shall be open to like
inspection as is hereinbefore provided concerning the fee books
of said officers. And each of said officers shall annually, in
the annual report which he is required by law to make, report the
aggregate of the fees so collected by him, and the amount paid
over by him, as provided in this section, which report shall be
sworn to.
NOTE: The purpose of this bill is to increase certain
existing fees while creating new ones charged by the Secretary of
State for services provided by the office of the Secretary of
State. The bill also consolidates fee references under the
U.C.C. into chapter fifty-nine which prescribes fees andallowances for miscellaneous document related filings. The bill
also establishes a special account in the state treasury for
deposit of the fees collected by the Secretary of State. The
bill provides that the money in the special account is to be used
by the Secretary of State to pay for the services and functions
of the Secretary of State's office.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§59-1-2a is new; therefore, strike-throughs and underscoring
have been omitted.
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