## Facts

- Five consolidated tort actions were brought by New York domiciliaries (or their estates) seeking damages for injuries or deaths from automobile accidents that occurred outside New York.
- Defendants were nonresident drivers or owners alleged to have caused the accidents.
- Plaintiffs sued in New York by attaching defendants’ liability insurance policies issued by insurers authorized to do business in New York, asserting quasi in rem jurisdiction under the Seider doctrine.
- While the cases were pending, the U.S. Supreme Court decided Rush v. Savchuk, holding that quasi in rem jurisdiction based solely on an insurer’s presence in the forum violates due process.
- After Rush, defendants moved to dismiss for lack of jurisdiction; in some actions defendants had timely raised jurisdictional defenses, while in at least one action no jurisdictional defense was interposed.

## Issues

1. Whether Rush v. Savchuk applies retroactively to pending actions filed under Seider-based quasi in rem jurisdiction.
2. Whether dismissal is available after Rush when the defendant failed to timely raise or preserve a personal-jurisdiction objection.

## Decision

- The Court of Appeals held that Rush applies retroactively to pending cases, invalidating Seider-based quasi in rem jurisdiction where a proper jurisdictional objection was preserved.
- Where a defendant timely and adequately raised a jurisdictional objection, the action had to be dismissed for lack of jurisdiction.
- Where no jurisdictional defense was raised (or it was not preserved), the personal-jurisdiction defect was waived and the action could proceed.
- The court therefore affirmed the result allowing the action with no preserved objection to continue and upheld dismissals in the other actions in which jurisdictional objections had been preserved.

## Legal Principles

- A state may not assert quasi in rem jurisdiction over a nonresident defendant based solely on the presence in the forum of the defendant’s liability insurer; doing so violates due process.
- Constitutional rulings defining limits on personal jurisdiction apply to cases still pending when the ruling is issued, absent a sufficient basis to limit the ruling to prospective effect.
- Lack of personal jurisdiction (including quasi in rem assertions of power over a defendant) is waivable; a defendant must timely raise and preserve the objection to obtain dismissal.
- Reliance by plaintiffs on previously accepted forum practices and potential statute-of-limitations consequences does not justify maintaining an exercise of jurisdiction that violates due process when the objection was preserved.

## Conclusion

The court applied Rush retroactively to invalidate Seider-based quasi in rem jurisdiction in pending cases, but limited dismissal to defendants who timely preserved a personal-jurisdiction objection; defendants who did not object waived the issue and remained subject to the New York actions.


Gager v. White, 53 N.Y.2d 475, 442 N.Y.S.2d 463, 425 N.E.2d 851 (N.Y. 1981)