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).