Opinion
No. 34971-0-II.
September 18, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-08312-9, Kathryn J. Nelson, J., entered May 19, 2006.
Reversed and remanded by unpublished opinion per Bridgewater, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Toni Eileen Hager appeals from a denial of summary judgment. We granted discretionary review and now hold that Brown did not serve Hager within the statute of limitations. We reverse and remand for entry for an order granting summary judgment for Hager.
FACTS
A car accident occurred between Sebastian Brown and Toni Hager on January 9, 2003, in Pierce County. At the scene of the accident, Hager provided Brown with her then current California address, driver's license, and proof of auto insurance. Before the accident, Hager had moved to Washington from California and was temporarily living with her two sons before buying a trailer in Puyallup. Hager lived in the trailer until May 2005, losing it due to financial hardship.
Brown filed his summons and complaint on May 31, 2005. Brown attempted service at Hager's California residence on June 22, 2003, but she was no longer living there. Further investigation revealed Hager's mobile home property in Puyallup. Service was attempted twice, once on July 3, 2005, and once on July 7, 2005, but each attempted service revealed that the mobile home was vacant. On January 20, 2006, Hager served the Secretary of State pursuant to RCW 46.64.040, after submitting an affidavit of compliance with Pierce County Superior Court on January 19, 2006. Hager was finally served on February 28, 2006.
Hager moved for summary judgment on the grounds that Brown had failed to serve her within the three-year statute of limitations. The trial court denied Hager's motion for summary judgment as well as Hager's subsequent motion for reconsideration. Hager then filed a notice for discretionary review, which we granted.
ANALYSIS I. Standard of Review
When reviewing an order of summary judgment, an appellate court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). The court must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437.
II. Statute of Limitations
The statute of limitations on personal injury actions is three years. RCW 4.16.080(2). Consequently, Brown had three years from January 9, 2003, the accident date, to commence his action against Hager. An action is commenced by filing the complaint or serving the summons and complaint, provided that if the action is commenced by filing the complaint only, the defendants shall be served, personally or by publication, within 90 days of the filing date in order to complete commencement of the action for purposes of the statute of limitations. See RCW 4.16.170.
Here, Brown filed his lawsuit in Pierce County Superior Court on May 31, 2005. Accordingly, Brown had to serve Hager within 90 days of this filing date or by January 9, 2006, whichever was later. But Brown did not serve Hager until January 20, 2006, when he perfected service on the Secretary of State. Because Brown did not serve Hager within three years of the accident date, Brown's action against her is time-barred, unless some event tolled the statute of limitations.
Brown argues that the statute of limitations was tolled because Hager intentionally evaded service by concealing herself. But there is no evidence supporting Brown's theory that Hager concealed herself. Moreover, Brown could have served her within the statute of limitations by service on the Secretary of State.
The pertinent tolling statute due to concealment is RCW 4.16.180. It provides:
If the cause of action shall accrue against any person who is . . . a resident of this state and shall be . . . concealed therein, such action may be commenced within the terms herein respectively limited after . . . the end of such concealment; and if after such cause of action shall have accrued, such person shall . . . conceal himself, the time of his . . . concealment shall not be deemed or taken as any part of the time limit for the commencement of such action.
RCW 4.16.180. Brown contends that this case involves concealment and therefore the statute of limitations tolled for the six-month period that Hager was unable to be located. Specifically, Brown claims that Hager was evading process on three other non-related matters and was therefore also attempting to conceal herself from service on this matter. He then argues that the statute of limitations tolled and that service on Hager under RCW 46.64.040 via the Secretary of the State does not apply because Hager was a Washington resident at all relevant times.
But Brown is incorrect. Brown relies on Brown v. ProWest Transport Ltd., 76 Wn. App. 412, 886 P.2d 223 (1994), to support his opposition to Hager's motion for summary judgment, but he does not adequately distinguish ProWest Transport from his case. In ProWest Transport, where the statute of limitations was tolled due to the defendant's concealment of his whereabouts, the court directly addressed the issue of potential service on the Secretary of State observing that such service was impossible only because the defendant failed to stop and provide an address to which the plaintiff could have mailed process as RCW 46.64.040 required. ProWest Transport, 76 Wn. App. at 421.
When a motorist is involved in a collision, Washington statutory law provides:
[E]ach resident of this state who . . . cannot, after a due and diligent search, be found in this state appoints the secretary of state of the state of Washington as his or her lawful attorney for service of summons . . . PROVIDED, That notice of such service and a copy of the summons or process is forthwith sent by registered mail with return receipt requested, by plaintiff to the defendant at the last known address of the said defendant.
RCW 46.64.040. Unlike ProWest Transport, where the defendant never stopped to give his address, Hager stopped to give Brown her address, driver's license, and proof of auto insurance. Moreover, Brown admits that in June 2005, he located Hager's Washington address. Clearly, Brown possessed Hager's last known address as RCW 46.64.040 required. That Brown was not successful in serving Hager at that address before she moved to a different address does not show concealment for purposes of tolling the statute of limitations.
Brown argues that RCW 46.64.040 does not apply because it is designed for service of "non resident[s] and residents of the State of Washington who are out of the State." Br. of Resp't at 12. Thus, he argues, because Hager is a Washington resident and never left the state after the accident date, RCW 46.64.040 does not apply. Brown's supposition is incorrect.
When reviewing statutory construction, we look to the statute's plain language in order to fulfill our obligation and give effect to legislative intent. Lacey Nursing Ctr., Inc. v. Dep't of Revenue, 128 Wn.2d 40, 53, 905 P.2d 338 (1995). When faced with an unambiguous statute, we ascertain the legislature's intent from the plain language alone. Waste Mgmt. of Seattle, Inc., v. Utils. Transp. Comm'n, 123 Wn.2d 621, 629, 869 P.2d 1034 (1994).
RCW 46.64.040 specifically states that it applies to "each resident of this state" who cannot be found after a due and diligent search, provided that the plaintiff mailed a copy of the complaint to the defendant's last known address. Unlike ProWest Transport, where the driver never stopped and the plaintiff was unable to determine his address, Hager gave Brown her then current California address. Furthermore, Brown later discovered a more current Washington address. Although Brown was unable to serve Hager at this Washington address, he was at all times able to serve Hager under RCW 46.64.040, and, in fact, demonstrated his ability to do so when he served her via the Secretary of State 11 days after the statute of limitations expired.
Not only do the facts fail to support Brown's assertion of concealment, but also whether Hager intentionally concealed herself by attempting to evade service is of no consequence. Although the statute of limitations tolls when a defendant attempts to evade service of process, we have previously held that the tolling provisions of RCW 4.16.180 do not apply when, as here, a defendant may be served under RCW 46.64.040. Patrick v. DeYoung, 45 Wn. App. 103, 110, 724 P.2d 1064 (1986), review denied, 107 Wn.2d 1023 (1987), overruled on other grounds by Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325 (1991).
Hager provided her then current address to Brown at the scene of the accident and later Brown possessed a more current last known address before the statute of limitations expired. After his due and diligent search for Hager, Brown should have served the Secretary of State before the statute of limitations expired. His service on the Secretary of State was untimely. We hold that the lower court erred in denying Hager's motion for summary judgment by allowing Brown's action to proceed when he had not served Hager within the statute of limitations.
Reversed and remanded for entry of an order granting Hager's motion for summary judgment.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and QUINN-BRINTNALL, J., concur.