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).