Carras v. Johnson

892 P.2d 780, 77 Wash. App. 588
CourtCourt of Appeals of Washington
DecidedJune 21, 1995
Docket13292-7-III
StatusPublished
Cited by10 cases

This text of 892 P.2d 780 (Carras v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carras v. Johnson, 892 P.2d 780, 77 Wash. App. 588 (Wash. Ct. App. 1995).

Opinions

Sweeney, A.C.J.

Randolph H. Carras sued Linda Louise Johnson and Edith and Woodrow Walker1 for injuries sustained in a car accident. After attempting personal service on Johnson and the Walkers, Carras substituted service on the Secretary of State. The trial court granted Johnson’s and the Walkers’ motion for summary judgment and dismissed the action. Carras appeals. The dispositive issue is whether Carras’ efforts to serve Johnson and the Walkers satisfied the due diligence requirement of the substituted service statute, RCW 46.64.040, as a matter of law. We conclude that he did and reverse.

Facts

Carras and Johnson were involved in a motor vehicle accident on August 17, 1989. The accident report listed Johnson’s address as "505 SE 5th St., Hermiston, Oregon”. It also listed the registered owners of the car as Edith and Woodrow Walker, residing at "Rt. 2, Hermiston, Oregon”.

On December 26, 1989, Carras filed a summons and complaint naming as defendants "Linda Louise Johnson; Edith and Woodrow Johnson”. An amended summons and complaint was filed on January 2, 1990, adding an allegation that the vehicle was owned by Johnson’s parents, "Edith and Woodrow Walker”. Due to discovery challenges and an impending trial date which Carras could not meet, Carras took a voluntary nonsuit, without prejudice. CR 41(a)(1)(B). Whether Carras served the Defendants is not clear from the [590]*590record. He claims proper service was effected on Edith Walker in Oregon on January 26, 1990. The Walkers, however, do not admit service and point out the absence of any proof of service.

On August 17, 1992 (the date on which the 3-year statute of limitation expired), Carras again filed a summons and complaint in Walla Walla County Superior Court. The second complaint again named as the defendants Linda Louise Johnson and Edith and Woodrow Johnson. It also alleged that the Johnsons (the Walkers) were Johnson’s parents.

On November 5, the attorney for the Plaintiffs forwarded copies of the 1992 summons and complaint to ABC-LMI Legal Messengers, Inc., a Seattle company, whose services included service of process, requesting service on the three Defendants. ABC-LMI in turn forwarded the documents to Pronto Process and Messenger located in Pasco, Washington. Pronto’s service area included Hermiston, Oregon. On November 12, Pronto advised the Plaintiffs’ attorney that it had been unable to locate the Defendants.

Pronto’s owner, Mark Owens, attested that "after due search, careful inquiry and diligent attempts” he was unable to contact the Defendants. His "Affidavit of Not Found or Non-Service Return” represented that the Walkers were unknown at the Route 2 address and could not be located. The affidavit relating to the Johnson service stated that "505 SE 5th St., Hermiston, Oregon” was an incorrect place for service, that Johnson could not be located within the area, and that she had moved and a forwarding address was unknown.

On November 13, 1992, the Plaintiffs’ attorney filed an affidavit with the Secretary of State’s office in Olympia in support of his effort to obtain substitute service. He represented that he had exercised due diligence in attempting service of process on the Defendants.

The Secretary of State mailed, by registered mail, return receipt requested, the summons and complaint to Johnson at the Hermiston address, to Ms. Walker at the Route 2 [591]*591address, and Mr. Walker at the Irrigon, Oregon, address.2 The documents were returned as undeliverable.

On December 10, 1992, Johnson and the Walkers moved for summary judgment based on a lack of jurisdiction for failure to serve within 90 days of the filing of the complaint. Johnson filed an affidavit which stated that at about the time of the accident she moved to her current address of "Route 1, Box 1674, Hermiston, Oregon”. According to Johnson, both the United States Postal Service and the Department of Motor Vehicles for the state of Oregon were aware of the change of address. In opposition to the motion, the Plaintiffs’ attorney argued that during the period August 17 through November 13, 1992, he had made various telephone inquiries in the Walla Walla area in an attempt to locate Johnson and the Walkers. The Plaintiffs’ attorney asserted that the addresses in the police report were not valid. He also stated that he used the nonresident motorist statute because of the impending expiration of the statute of limitation.

Relying on Martin v. Triol, 121 Wn.2d 135, 847 P.2d 471 (1993), the court concluded that Carras had not exercised due diligence in attempting to serve the Defendants personally and therefore was not entitled to avail himself of the substituted service provided by RCW 46.64.040. A judgment dismissing all Defendants with prejudice was entered. Car-ras appeals.

RCW 46.64.040 provides for substituted service on the Secretary of State provided that certain conditions are met including an "affidavit of the plaintiff’s attorney that the attorney has with due diligence attempted to serve personal process upon the defendant at all addresses known to him or her of defendant and further listing in his or her affidavit the addresses at which he or she attempted to have process served”. (Italics ours.) The two leading cases on the due diligence issue are Martin v. Meier, 111 Wn.2d 471, 760 P.2d 925 (1988) and Martin v. Triol, supra.

[592]*592In Meier, plaintiff attempted to serve the defendant at a Seattle address listed on the accident report. He also asked neighbors about the defendant’s whereabouts and inquired at the university the defendant had attended at the time of the accident. He checked the telephone directory and contacted police about the defendant. The plaintiff filed the action in King County, based on the Seattle address. Unbeknownst to the plaintiff, the address given by the defendant on the accident report was his parent’s. Neighbors told the process server the defendant had moved to California 2½ to 3 years earlier.

The court ruled that due diligence does not require all "conceivable means need be used”, but requires a plaintiff to make "honest and reasonable effort[s]” to locate the defendant:

Not all conceivable means need be used, but an honest and reasonable effort should be made to find defendant . . . [W]here plaintiff possessed information regarding defendants’ whereabouts, . . . but failed to follow up on that information, plaintiff did not make the honest and reasonable effort necessary to allow for service by publication.

Meier, at 481. It concluded therefore that the plaintiff had exercised due diligence in attempting to locate and serve the defendant.

In Triol, the plaintiff began his efforts to serve the defendant 5 days before the expiration of the 90-day service of process period.

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Carras v. Johnson
892 P.2d 780 (Court of Appeals of Washington, 1995)

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Bluebook (online)
892 P.2d 780, 77 Wash. App. 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carras-v-johnson-washctapp-1995.