Senate Bill No. 35
(By Senator Wooton)
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[Introduced February 10, 1993;
referred to the Committee on Finance.]
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A BILL to amend and reenact section eighty-two, article twelve,
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 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; and 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;
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 eighty-two, article twelve, 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 section
three, 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 section one hundred thirty-seven,
article two, chapter forty-six-a of said code be amended andreenacted; 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 12. BUSINESS REGISTRATION TAX.
§11-12-82. 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 without the state, and every
domestic limited partnership whose principal place of business is
located without the state, shall pay an annual fee,
of ten
dollars as provided for 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,
collected by the same officers, and accounted for in the same
way, as the annual license tax imposed on corporations under this
article, payable to the secretary of state as statutory attorney-
in-fact
who shall deposit it in the account provided for in
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 after
its 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 oraffiliates 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 than
fifty 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 the
organization 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 organizationshall 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 one
year 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 notarypublic 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 a
nonresident 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 thestate 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 a
building; (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 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 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 andupon 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, togetherwith 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 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 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 shallnevertheless 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 defective
product 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.
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 transactingbusiness 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 state
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 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 ofnotice 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 orprocess, 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 such
process 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 state
notwithstanding 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 thelimited 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, all
fees 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 officerof 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 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
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 was
effected; 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 atrue 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 insurance
commissioner 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 lawnumber 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 state
shall 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 respondingparty 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 upon
any 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 theofficial 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) of
this 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 withthe 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 shall
have 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 oralien 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 action
to 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 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, or
who 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 copyof 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 to
said 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 than
the 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, chapterfifty-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, limitedpartnership 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 the
provisions 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 partnershipappointing 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 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 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 for
and 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 signedby 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 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
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 saidinjury. 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 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 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 anonresident 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 this
section, 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 samelegal 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 from
the 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, articleone, 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 receipt
requested, 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 thecosts 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 as
provided 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, amongothers, 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 such nonresident,
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 orroad 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 orplaintiffs, 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 shallforthwith 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 the
post-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 followingmeanings:
(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 for
mail 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 actionin 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 copy thereof, including
restatements of any such certificates issued on new
agreements, and/or consolidations or all certificates of
merger or consolidation or certificates authorizing a
foreign 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 or
termination statement or other statement or
writing permitted to be filed under chapter
forty-six of the code 3.00
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 all
times 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 besworn to.
NOTE: The purpose of this bill is to increase certain fees
charged by the Secretary of State for services provided by the
office of the Secretary of State. 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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