Gish v. Youngblood

984 P.2d 931, 161 Or. App. 591, 1999 Ore. App. LEXIS 1220
CourtCourt of Appeals of Oregon
DecidedJuly 7, 1999
Docket97CV0854; CA A100936
StatusPublished
Cited by5 cases

This text of 984 P.2d 931 (Gish v. Youngblood) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gish v. Youngblood, 984 P.2d 931, 161 Or. App. 591, 1999 Ore. App. LEXIS 1220 (Or. Ct. App. 1999).

Opinion

*593 WOLLHEEVT, J.

Plaintiff appeals the trial court’s judgment of dismissal of his personal injury claim on the ground that defendant had not been adequately or timely served. ORCP 7 (1995). 1 Plaintiff asserts that the trial court erred in concluding that the undisputed facts show that plaintiffs method of service was inadequate and contends that the service satisfied the ORCP 7 D(l) reasonable notice standard. We affirm.

On August 14, 1995, plaintiff and defendant were involved in a motor vehicle accident in Coos County, Oregon. Shortly before the statute of limitations expired, plaintiff filed a complaint against defendant seeking to recover damages from injuries he suffered due to the accident.

ORS 12.020(2) provides that, if proper service occurs within 60 days of the filing of the complaint, then the action is deemed to have been commenced on the date the complaint was filed. On August 25,1997, plaintiff served defendant by leaving a copy of the summons and complaint with the Motor Vehicle Division (MVD), along with the required fee. The proof of service form indicates that the process server could not find defendant and received information that defendant had moved to Missouri. On August 28, plaintiff attempted follow-up service on defendant by certified mail, return receipt requested, to defendant’s address at the time of the accident and to the last address MVD had for defendant. Both were returned as undeliverable with no forwarding address. Plaintiff, informed that defendant was insured at the time of the accident, mailed, by certified mail, a true copy of the summons and complaint to the registered agent of defendant’s insurance company. Plaintiff alleged that defendant received actual notice of plaintiffs action as a result of mailing the summons and complaint to defendant’s insurance company.

After plaintiff served MVD, he attempted service of the summons and complaint on defendant by personal service at defendant’s two different addresses: the address given *594 by defendant at the time of the accident and the address on file with MVD. Defendant was not present at either address. No one at either of those addresses could accept substituted service for defendant. In plaintiffs motion in opposition to summary judgment, plaintiff explained that the process server spoke with the former neighbors at both addresses, learned that defendant had moved from both addresses and had left no forwarding address, and that none of the neighbors knew defendant’s current location.

ORCP 7 D sets forth both specific and general means by which service may be accomplished. If service is accomplished by any of the specified methods identified in ORCP 7 D, then service is presumed to be adequate. If service is not accomplished by one of those specific methods, then we examine whether the method of service was reasonably calculated under all the circumstances to apprise the defendant of the existence of the pendency of the action and to afford the defendant a reasonable opportunity to appear and defend. Baker v. Foy, 310 Or 221, 228-29, 797 P2d 349 (1990).

Defendant moved for summary judgment, alleging that plaintiff’s attempted MVD service was inadequate and that plaintiffs service on defendant’s insurance company was not reasonably calculated to apprise defendant of the pendency of the action. ORCP 7 D(l). The trial court agreed with defendant and granted the summary judgment motion.

On appeal, plaintiff reiterates his argument that his methods of service met the statutory requirements and were reasonably calculated to inform defendant of the action. Defendant does not dispute that attempted service by delivery to MVD occurred within the statutory time frame. He argues that plaintiff failed to demonstrate that he exhausted all reasonable means to locate defendant under ORCP 7 D(3) before attempting MVD service, and that plaintiff did not in fact know at the time of attempted MVD service that he could not serve defendant by any of the methods described in ORCP 7 D(3). Defendant also argues that the record does not demonstrate how service on his insurance company was reasonably calculated to inform defendant of plaintiffs action.

Summary judgment is appropriate “only when the agreed upon facts would compel a jury to return a verdict for *595 the moving party.” Jones v. General Motors Corp., 325 Or 404, 414, 939 P2d 608 (1997). Under the previous and current versions of ORCP 47 C, the moving party has the initial burden to establish that there is no genuine issue of material fact. Id. at 420. In the context of the adequacy of service of process, if the moving party meets its initial burden, it is incumbent on the nonmoving party to elucidate in the record probative or evidentiary facts that demonstrate that the non-moving party has met the procedural requirements of service. Kintigh v. Elliot, 280 Or 265, 270, 570 P2d 659 (1977). We view the record in a manner most favorable to plaintiff, the nonmoving party. Jones, 325 Or at 413.

The record here established that plaintiffs first service of summons and complaint was on August 25,1997, when plaintiffs process server left a copy of the summons and complaint with MVD. It was after the substituted service at MVD that plaintiff attempted service at defendant’s address at the time of the accident and his last known address according to MVD. 2

If the facts are undisputed, then whether service was adequate is a question of law. Mitchem v. Rice, 142 Or App 214, 217, 920 P2d 1121, adhered to as modified 143 Or App 546, 923 P2d 1347, rev den 324 Or 394 (1996). Based on this record, we conclude that plaintiffs attempted service was inadequate and untimely.

We recently clarified the requirements for service of summons and complaint by delivery to MVD. Carlson v. Martin, 160 Or App 350, 983 P2d 1031 (1999). We began by explaining that ORCP 7 D(4)(a)(i) provides that in an action arising out of an automobile accident, a plaintiff may serve the operator of the vehicle by delivery to MVD only if the defendant cannot be served by any method specified in ORCP 7 D(3). The plaintiff must also provide follow-up service through certified mail to the defendant’s last known address and “any other address of the defendant* * * which might result in actual notice to the defendant.” ORCP 7 D(4)(a)(i). ORCP 7 D(3)(a)(i) provides that there are three methods by which an individual may be served:

*596 “[B]y personal service upon such defendant or an agent authorized by appointment or law to receive service of summons or, if defendant personally cannot be found at defendant’s dwelling house or usual place of abode, then by substituted service or by office service upon such defendant [or agent].”

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Cite This Page — Counsel Stack

Bluebook (online)
984 P.2d 931, 161 Or. App. 591, 1999 Ore. App. LEXIS 1220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gish-v-youngblood-orctapp-1999.