Our law firm was not involved in the personal injury lawsuit described in this article.

In a recent decision the Washington Court of Appeals considered an issue of service of a summons and complaint. [1] Proper service of the summons and complaint is a prerequisite to the court obtaining jurisdiction over a party, and a judgment entered without such jurisdiction is void. Actual receipt is not sufficient. [2]

On September 20, 2005, David Streeter-Dybdahl and Nguyet Huynh were involved in a car accident. On September 18, 2008, Streeter-Dybdahl filed a negligence lawsuit against Huynh. On November 23, 2008, a process server attempted to serve the complaint on Huynh at the address listed for Huynh in the police report of the accident.

On November 20, 2008, Huynh’s attorney contacted Streeter-Dybdahl’s attorney and asked for proof and confirmation of service, but received no response. On December 23, 2008, Huynh answered the complaint and pleaded insufficient service and lack of jurisdiction and later filed a motion to dismiss on that basis.

In support of her motion to dismiss, Huynh filed a declaration stating that she lived at the Seattle address in 2002, but later moved to Lynnwood where she currently resides. She further stated that she has lived at her current Lynnwood address since 2008 and before that lived at another Lynnwood address for five years. She also submitted property records indicating that she bought her current home in Lynnwood on April 1, 2008.

In response, Streeter-Dybdahl submitted documentation showing that Department of Licensing (DOL) records listed a Lynnwood address for Huynh effective April 2005, but in January 2006, listed the Seattle address for Huynh, which is still on file as the most current address. Streeter-Dybdahl also submitted King County records showing that Huynh had a previous ownership interest in the Seattle residence, but that she had quitclaimed that interest in 2006. He further noted that the police report of the accident listed Huynh’s address as the Seattle address.

The trial court also considered the deposition of Huynh’s brother who was living at the Seattle address at the time service was attempted and testified that Huynh moved out of that residence sometime around 2003 to 2004 and came by once or twice a month to collect mail that came to her at the Seattle address.

There was no dispute that Huynh was not personally served with the summons and complaint. The question was whether the service amounted to proper substitute service – service at Huynh’s place of usual abode with a person of suitable age who resides at that address.

The term “‘[u]sual place of abode’ must be taken to mean such center of one’s domestic activity that service left with a family member is reasonably calculated to come to one’s attention within the statutory period for [the] defendant to appear.

The Washington Court of Appeals held that service at Huynh’s former residence was not proper substitute service. The record did not establish that the Seattle address was the center of her domestic activity and therefore her place of usual abode at the time process was served. While the Seattle address was listed with DOL as her current residence, the use of a particular address for a limited purpose is not a critical factor in determining a center of domestic activity. Streeter-Dybdahl pointed to no other facts suggesting that the  house was the center of her domestic activity. Rather, according to the deposition of Huynh’s brother who resided there at the time of service, she had moved out of the house sometime in 2003 to 2004 and only came by once or twice a month to collect mail that came to her there.

Streeter-Dybdahl also argued that Huynh waived the defense of improper service. To establish waiver, the plaintiff must prove willful evasion of process, but the record did not establish that Huynh took any action that prevented him from determining her current address. While she gave the Seattle address for the incident report of the accident, this occurred three years before the lawsuit was filed and before she moved to her current address. The Court held that the fact that DOL still listed her Seattle address at the time service was attempted did not establish willful evasion. DOL records indicated that this address became effective in January 2006, before she moved to her current residence and before the lawsuit was filed.

Additionally the record did not establish that Huynh was “lying in wait” and deprived the plaintiff of the opportunity to cure the service defect. To the contrary, her attorney requested proof of service before the suit perfection deadline, but received no response. Service was then attempted less than a month before the service deadline and the declaration of service was not filed until the day before that deadline.

The declaration of service indicated defective service by stating that Huynh was a male served at the Seattle residence, but Streeter-Dybdahl made no attempt to correct it before the deadline. A week later, Huynh filed her answer asserting the defense.

This is another statute of limitations case that illustrates the importance of acting early to preserve your rights. If a case is not properly commenced before the statute of limitations the claim is barred and any rights to compensation for personal injury are lost forever.

[1] Streeter-Treeter-Dybdahl v. Nguyet Huynh, No. 63708-8-I, published August 09, 2010.

[2] Saltes v. Este, 133 Wn.2d 160, 161, 943 P.2d 275 (1997); Gross v. Sunding, 139 Wn. App. 54, 60, 161 P.3d 380 (2007).

Our law firm was not involved in the personal injury lawsuit

described in this article.

A woman who fell and was in injured appealed the trial court results. She unsuccessfully argued her appeal without the assistance of an attorney. Read the rest of this entry »

Our law firm was not involved in the personal injury lawsuit described in this article.

A woman injured in a motor vehicle accident served the Washington Secretary of State because she was unable to locate the other driver to effect personal service.  The trial court entered a default judgment.  The court awarded $12,000 in general damages, $9,163.15 for past medical damages, $1,890.72 for property damage, $28,600 for future medical damages, $23,346.13 for past lost wages and future earning capacity, and $1,244.91 for statutory costs, for a total of $76,244.91.

The other driver’s insurance company, Farmers Insurance Company, was notified of the default judgment and promptly located their insured and filed a motion to vacate the default judgment.

The court vacated the default judgment finding that the defendant acted diligently in pursuing the motion to vacate, that the failure to appear was reasonable, and that she established substantial evidence of a prima facie defense to damages.

The plaintiff appealed. Read the rest of this entry »

Our law firm did not participate in this case.

The plaintiff, an elderly woman who suffered from severe dementia, was living in a nursing home and a male patient sexually assaulted her. She died 13 months later without ever being able to describe the assault or its effect on her.

She sued the nursing home for negligence and violation of Washington’s Vulnerable Adult Statute. Read the rest of this entry »

Our law firm was not involved in this case.

The Washington Court of Appeals rendered a decision in an injury case in which the the process server served the initial pleadings on the babysitter, rather than the defendant who had allegedly caused injury to the plaintiff.[1]

Before the injured party’s attorney discovered the error the statute of limitations had run, barring the claim unless the courts found service on the babysitter adequate.

The babysitter, who was the niece of one of the defendants, was a 30-year-old married woman who resided with her husband and two step-children in Tacoma. The documents were served at the defendants’ home in Federal Way.

A personal injury claim must be commenced within three years. The filing of a complaint in and of itself is not sufficient to toll the statute of limitations. A defendant must be served. The ways in which a person may be served with a summons are set forth by statute. Generally, personal service is required but substitute service is permitted under certain circumstances.[2]

In order to effectuate substitute service, the plaintiff must (1) leave a copy of the summons at the defendant’s house, (2) with some person of suitable age and discretion, (3) then resident therein. The only element at issue was the third one.

‘Resident’ requires something more than [being] ‘present’ in the defendant’s usual abode.[3] And as noted by the Supreme Court in Salts v Estes, when the legislature required that service be on a person who is “then resident” in the defendant’s usual abode, it meant something more than fleeting occupancy. The usual rule is that service on employees and others who do not reside in the defendant’s home does not comport with due process.

The plaintiff relied on a case called Wichert.[4] The Wichert court held that service upon an adult child staying overnight at her parents’ home was sufficient service upon the defendant parents. But the Salts court distinguished Wichert, in part because the daughter accepting service in that case slept in the defendants’ home on occasion and in particular the night before she accepted service.

The Salts court noted that Wichert and similar cases “mark the outer boundaries of RCW 4.28.80(15)”.

The Court of Appeals upheld the dismissal of the case on the grounds that service on the babysitter was not valid service. Since the statute of limitations had run, the injury claimed is barred forever.

There are precautions and practices that might well have prevented this outcome. It is important to discuss any injury claim with an experienced injury attorney.

[1] Krolow v. Kdep, 63136-5-I(March 22, 2010). Unpublished opinion.

[2] RCW 4.28.080(15).

[3] Salts v. Estes, 133 Wn.2d 160, 167-68, 943 P.2d 275 (1997).

[4] Wichert v. Cardwell, 117 Wn.2d 148, 812 P.2d 858 (1991).

By Seattle Personal Injury Lawyer Scott Eller

Last month the Washington Supreme Court issued a decision in a case in which the Court considered an issue of judicial immunity.[1] A sheriff deputy escorted an inmate from a courtroom to the jail on the instructions of the judge.  She did not handcuff the inmate.  The inmate brook away and ran for the entrance.  He lowered his shoulder and charged into a person in the courthouse, injury him.  That person brought suit. Read the rest of this entry »

A recent Court of Appeals decision upheld the trial court’s ruling that attorney fees requested by an injury attorney were unreasonable.[1] Read the rest of this entry »

It is common in politics to criticize courts for “legislating from the bench”.  The argument is that courts have no role in formulating broad public policy.

For most of the legal history of this and other English speaking countries in many areas of the law there was no legislation on point.  Instead, the courts developed rules over time.  These laws are often referred to as common law. Read the rest of this entry »

Negligence is “conduct which falls below the standard established by law for the protection of others against unreasonable risk”. [1]

Duty and standard of care.

The standard of conduct can arise from common law principles. It can also be prescribed by legislative enactment.[2] Read the rest of this entry »

Proximate cause includes both cause in fact and legal cause.[1] A cause in fact is a cause but for which the accident would not have happened.[2] A legal cause is a cause in fact that warrants legal liability as a matter of social policy.[3]

A cause is “proximate” only if it is both a cause in fact and a legal cause because not all causes in fact warrant the imposition of legal liability. Read the rest of this entry »