concurring.
I concur fully in the Majority Opinion’s conclusion that the Kentucky long arm statute, KRS 454.210, does not serve as adequate basis for extending personal jurisdiction over Sullivan Payne Company in this case.
However, I respectfully disagree with that portion of the Majority Opinion further holding that the regulatory scheme for domestic insurers could not give rise to jurisdiction absent minimum contacts within the state, if the Majority means by this that minimum contacts require in-state personal contacts.
In my opinion state regulated liquidation proceedings, such as the one established by the “Insurer’s Rehabilitation and Liquidation Law,” KRS 304.33-010, et seq., can properly extend jurisdiction over nonresidents doing business with a resident insurer consistent with the federal Due Process Clause, if:
1) The statutory liquidation scheme specifies in clear and unambiguous terms, thus providing notice, that any commercial entity doing business with a Kentucky insurance corporation submits to Kentucky’s jurisdiction by so doing; and
2) Such statute is in place, providing notice, at the time the nonresident undertakes to do business with the Kentucky corporation.
KRS 304.33-040(5) provides the terms for extending jurisdiction and venue over a foreign corporation in liquidation proceedings. None of the subparagraphs in KRS 304.33-040(5), as it read at the time of the transactions in question, were adequate to put Sullivan Payne Company on notice that, if holding money arguably the property of a Kentucky insurance corporation when the Kentucky company went into receivership, it was agreeing to be amenable to jurisdiction in Kentucky in a liquidation action. KRS 304.33-040(5)(a) extended personal jurisdiction “t/the person served is obligated to the insurer in any way as an incident to any agency or brokerage arrangement.” But, as the facts stated in the Majority Opinion demonstrate, Sullivan Payne acted as an intermediary, not in an “agency or brokerage arrangement.”
Such is no longer the case. In 1990, KRS 304.33-040(5) was amended to add subparagraphs (d), (e), (f) and (g), notifying of additional grounds upon which nonresidents doing business anywhere with a Kentucky insurance corporation, by doing so, submit themselves to jurisdiction in Kentucky in a liquidation proceeding. Subpar-agraph (d) provides:
“If the person served is or was at the time of the institution of the delinquency proceedings holding assets in which the receiver claims an interest on behalf of the insurer[.]”
And subparagraph (g) provides:
“If the person served is obligated to the insurer in any way in any action on or incident to the obligation.”
The 1990 Amendment to this statute broadens the class of persons on notice that they may have to answer in Kentucky. A commercial actor within the business of insurance who does business with a Kentucky insurance corporation at this time is now on notice that it must answer in Kentucky regarding assets in its possession in liquidation proceedings. This notice is sufficient to comply with the requirements of the federal Due Process Clause. Under the new statute this suit in Kentucky would not have been a due process violation.
COMBS, J., joins this concurring opinion.