Our law firm was not involved in the personal injury case described in this article.
Recently there have been several personal injury cases dismissed for failure to properly bring the action within the statute of limitations and the dismissal upheld on appeal.
A case must be brought within the applicable statute if limitations period or is lost forever. A civil case can be initiated by either filing or service of a summons and complaint. Filing the case tolls the statute of limitations for 90 days. Valid service must accomplished before the expiration of the statute of limitations period (although this is tolled 90 days by filing).
Actual receipt is not the same as valid service. A defendant could actually receive the pleading documents, but not be validly served. On the other hand, the defendant might never have actually received the documents, but be validly served.
It behooves any personal injury victim to contact an attorney as early as possible in the process. The statute of limitations issue is one of many reasons this is true. It also behooves a personally injury attorney to file any case well in advance of the deadline. While it is usually best to try to settle out of court, it is more important to take care that the case is initiated prior to the deadline.
In a recent holding the Washington Court of Appeals considered a motor vehicle accident case in which service was made on the defendant driver’s mother at the mother’s residence.[1] At the time of the accident, about three years earlier, the driver had resided at the mother’s residence. The driver had since moved and no longer resided with his mother.
The voicemail greeting at the mother’s residence still had an option to leave a message for the defendant. The defendant’s mother submitted a declaration explaining that she lived alone and did not want to make it too obvious she lived by herself, and that the decision to not change the greeting after her son moved out was her decision not her son’s.
The plaintiff argued that the declaration of service was entitled to a presumption of validity that must be overcome by clear and convincing evidence. The court noted that most of the cases finding a presumption of validity address attacks on judgments, not pending cases. The court reasoned that there was a heightened interest in upholding the finality of judgments from contrived attack when memories of process servers would tend to have faded, thus the need for clear and convincing evidence to overturn a judgment for allegedly invalid service.
This case is another good illustration of one of many reasons it is important to consult with a personal injury attorney early after sustaining injury. It is also another illustration of why it is unwise for the plaintiff attorney to wait until the statute is near to initiate the personal injury lawsuit.
[1] Farmer v. Davis, No. 28817-0-III.