Opinion
Nos. 56535-4-I; 57518-0-I.
November 6, 2006.
Appeals from a judgment of the Superior Court for King County, No. 04-2-36566-0, Jim Rogers, J., entered June 17, 2005.
Counsel for Appellant(s), James A Jackson, Reed Longyear Malnati Ahrens West PLLC, 801 2nd Ave Ste 1415, Seattle, WA 98104-1517.
Gregory Mann Miller, Reed Longyear Malnati Ahrens West PLLC, 801 2nd Ave Ste 1415, Seattle, WA 98104-1517.
Counsel for Respondent(s), John R. Hall, USAA Insurance Company, 17500 N. 67th Ave #2027, Glendale, AZ 85308.
Alan Jay Peizer, Attorney at Law, 720 3rd Ave Ste 1915, Seattle, WA 98104-1825.
Thomas G Richards, Peizer Richards Ziontz PS, 720 3rd Ave Ste 1915, Seattle, WA 98104-1825.
Affirmed by unpublished opinion per Ellington, J., concurred in by Coleman and Becker, JJ.
Susan and Dean Windsor's personal injury case was dismissed as time-barred, for failure of timely service. Because the statute of limitations had run and no defendant was served within the tentative commencement grace period, we affirm.
BACKGROUND
On December 2, 2001, Andrew Kleffner was driving a car owned by Chester Richardson. He attempted a U-turn on State Route 2, directly in front of Dean Windsor. Windsor was unable to avoid a collision, and his wife Susan was injured.
On November 18, 2004, Susan Windsor filed a complaint against Kleffner and Mr. and Mrs. Richardson. On November 22, 2004, she amended the complaint to add her husband as a plaintiff and to raise a claim for loss of consortium.
Counsel sent copies of the summons, both complaints, and the case schedule to the Richardsons' insurance company. The company was unresponsive, so counsel sought to serve the defendants and commence litigation.
In early January 2005, counsel prepared a summons and amended complaint for service on the Richardsons by a legal messenger company. The documents were apparently lost, and service was not achieved. This fact was discovered by counsel on February 18, 2005. Counsel hired a second process server that same day.
In confirming the Richardsons' address for the new process server, counsel discovered that the Richardsons had sold their home in May 2004 and had moved out of state. Counsel considered serving the Richardsons constructively under RCW 46.64.040, the nonresident motorist statute, but concluded the statute was inapplicable in this situation, and directed the process server to make personal service on the Richardsons. The process server took steps to investigate the Richardsons' whereabouts, including attempting service at their former home, making a database search to identify Mr. Richardson's social security number and locate an associated address, and a postal trace. The server forwarded the documents and new address to a process server in Wisconsin, who personally served Mrs. Richardson on March 24, 2005.
Defendant Kleffner was served on February 26, 2005 by personal service on his father at the address listed on the accident report form.
Kleffner and the Richardsons moved to dismiss on summary judgment for failure to serve process within the statute of limitations. The trial court granted the motion and denied the Windsors' motion for reconsideration. The Windsors appealed.
On November 28, 2005, the Windsors moved to vacate the judgment, offering as newly discovered evidence the fact that the Richardsons purchased their new home in Wisconsin one day after selling their house in Washington. The court denied the motion. The Windsors appealed that ruling also, and the two appeals were consolidated here.
Respondents' motion to strike Windsors' statement of additional authorities is granted as to paragraphs 3 and 4.
DISCUSSION
The usual standard of review on summary judgment applies.
We review a grant of summary judgment de novo, engaging in the same inquiry as the trial court and viewing the facts and the reasonable inferences from those facts in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c).
An action for personal injury must be commenced within three years of the date of injury. RCW 4.16.080(2). An action is commenced by the filing of a complaint or the service of a summons and complaint. CR 3(a); RCW 4.16.170. So long as either filing or service is accomplished within the limitations period, the plaintiff has 90 days from the "tentative" commencement date to complete the second step of either filing or service:
For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint. If the action is commenced by service on one or more of the defendants or by publication, the plaintiff shall file the summons and complaint within ninety days from the date of service. If following service, the complaint is not so filed, or following filing, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations.
RCW 4.16.170. In cases involving multiple defendants, timely service of one defendant tolls the statute of limitation as to defendants not yet served. Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 329, 815 P.2d 781 (1991).
In this case, the limitations period expired on December 3, 2004. By filing a complaint on November 18, 2004, the Windsors tentatively commenced the action, and had 90 days from filing, or until February 16, 2005, to serve one of the three listed defendants. Kleffner was served on February 26, 2005. The Richardsons were served on March 24, 2005. Thus, the Windsors' claim is time-barred.
The Windsors advance several arguments for a different result, which we reject as discussed below.
Amended Complaint. The Windsors contend the 90-day window runs not from the original complaint, but from the date the amended complaint was filed four days later. We recently rejected this argument in Banzeruk v. Estate of Howitz, 132 Wn. App. 942, 948, 135 P.3d 512 (2006). Even were this theory viable, the Windsors' service was still untimely. The 90th day from the amended complaint was Sunday, February 20, 2005, which under CR 6 means that the period extended to the next business day, February 21, 2005. The first service was not accomplished until five days thereafter.
Tolling by Absence from State. The Windsors also contend that the limitations period was tolled by RCW 4.16.180. Under that statute, a statute of limitations may be tolled during periods in which a resident defendant is absent from the state or conceals himself:
If the cause of action shall accrue against any person who is a nonresident of this state, or who is a resident of this state and shall be out of the state, or concealed therein, such action may be commenced within the terms herein respectively limited after the coming, or return of such person into the state, or after the end of such concealment; and if after such cause of action shall have accrued, such person shall depart from and reside out of this state, or conceal himself, the time of his absence or concealment shall not be deemed or taken as any part of the time limit for the commencement of such action.
RCW 4.16.180 (emphasis added).
But a defendant's absence from the state does not toll the limitations period when an alternative method of service is available. Summerrise v. Stephens, 75 Wn.2d 808, 811, 454 P.2d 224 (1969) (to toll the statute of limitations, "a defendant's absence from the state (or concealment within it) must be such that process cannot be served upon him"); Patrick v. De Young, 45 Wn. App. 103, 109, 724 P.2d 1064 (1986). Thus, absence from Washington does not toll the limitations period where the defendant is amenable to process under RCW 4.28.185, the long-arm statute. Summerrise, 75 Wn.2d at 809. RCW 4.28.185 allows personal service outside Washington in certain cases, including this tort claim, when service cannot be made within the state.
Before service under the long-arm statute is effective, the plaintiff must file an affidavit stating that service cannot be made in this state. RCW 4.28.185(4) ("Personal service outside the state shall be valid only when an affidavit is made and filed to the effect that service cannot be made within the state.") The Windsors contend this affidavit requirement indicates an underlying presumption that a plaintiff must know the defendant is out of state before such service may be made, and that service under the long-arm statute was therefore not available until the Windsors ascertained the Richardsons' new address. Under this theory, the Richardsons remained absent and the limitations period remained tolled until the new address was found.
But Windsors' theory treats the long-arm statute as a tolling statute. It would extend the limitations period indefinitely (or at least until plaintiffs decide to seek a defendant's whereabouts). This is neither its purpose nor its effect, and it has never been so interpreted. The long-arm statute provides "a sure, inexpensive, and expeditious means" of bringing defendants within the jurisdiction of state courts. Summerrise, 75 Wn.2d at 812. The long-arm statute is an alternative service device, not a tolling statute.
The statute of limitations was not tolled, and the court did not err in dismissing the Windsors' complaint.
Because of our determination as to the long-arm statute, we do not reach arguments based on the nonresident motorist statute, RCW 46.64.040.
Motion to Vacate. In support of their CR 60 motion to vacate, the Windsors submitted "new" evidence that the Richardsons bought their home in Wisconsin the day after they sold their house in Washington. Windsors contend the near-simultaneous timing of these transactions suggests an intent to evade process.
Newly discovered evidence can form the basis for a new trial only on a demonstration that the evidence will likely change the outcome of the case and could not have been discovered before trial even with the exercise of due diligence. Graves v. Department of Game, 76 Wn. App. 705, 718-19, 887 P.2d 424 (1994). Rulings on CR 60 motions are reviewed for abuse of discretion. Weems v. N. Franklin Sch. Dist., 109 Wn. App. 767, 777, 37 P.3d 354 (2002).
The Windsors made no showing that evidence of the Richardsons' transactions was unavailable at the time of the summary judgment, and indeed, the records are public documents filed in 2004. Nor does this evidence support any inference that the Richardsons' move was surreptitious or otherwise calculated to avoid process. The court did not err in denying the motion.
The statute of limitations barred the action and the court properly dismissed.
Affirmed.
COLEMAN and BECKER, JJ., concur.