Davis v. Blumenstein

• Citation: 7 Wash.App.2d 103,432 P.3d 1251
• Decision Date: 14 January 2019
• Docket Number: No. 76918-9-I,76918-9-I
• Parties: Arthur DAVIS, an individual Appellant, v. Laura BLUMENSTEIN, and Jean Doe Blumenstein, Spouses and the Marital Community thereof, Respondents.
• Court: Court of Appeals of Washington

7 Wash.App.2d 103

432 P.3d 1251

Arthur DAVIS, an individual Appellant,

v.Laura BLUMENSTEIN, and Jean Doe Blumenstein, Spouses and the Marital Community thereof, Respondents.

No. 76918-9-I

Court of Appeals of Washington, Division 1.

FILED: January 14, 2019

Christopher Adan Morales, Khan Law Firm, 6951 Martin Luther King Jr. Way S Ste. 226, Seattle, WA, 98118-3545, for Appellant.

Levi Lewis Bendele III, Kyle Anthony Jones, Tyson & Mendes, LLP, 200 W Mercer St. Ste. 411, Seattle, WA, 98119-3958, for Respondents.

PUBLISHED OPINION

Schindler, J.¶ 1 Subject to strict compliance with RCW 46.64.040, a plaintiff can serve the secretary of state with the summons and complaint against a defendant involved in an automobile collision. Arthur Davis appeals the decision to dismiss his lawsuit against Laura Blumenstein on the grounds that he did not comply with the statutory requirement to provide notice of service on the secretary of state by filing an affidavit certifying "plaintiff’s attorney ... has with due diligence attempted to serve personal process upon the defendant at all addresses known to him or her."¹ Because the undisputed record establishes the attorney knew but did not attempt to serve personal process on Blumenstein at her address in Bend, Oregon and Blumenstein did not waive the right to assert the defense of improper service of process, we affirm dismissal of the lawsuit.

Lawsuit against Blumenstein

¶ 2 On November 15, 2013, Arthur Davis and Laura Blumenstein were involved in an automobile collision on Interstate 405 in Bellevue. The police collision report lists Blumenstein’s address as 7423 Eaglefield Drive, Arlington, Washington 98223.

¶ 3 On November 2, 2016, Davis filed a personal injury lawsuit against Blumenstein in King County Superior Court. That same day, the attorney requested Elliott Point Legal serve the summons and complaint on Blumenstein at the Arlington address listed in the collision report.

¶ 4 On November 10, an Elliott Point Legal process server sent an e-mail to the attorney. The e-mail states the Arlington address is the "father’s home and she doesn’t live there any longer" but Blumenstein’s father gave the process server the current address for his daughter: 708 NE Penn Avenue, Bend, Oregon. The e-mail asks the attorney whether the process server should take steps to serve Blumenstein in Oregon or serve the secretary of state:

I can serve her via the Secretary of State since she is not a Washington resident, or l/you can find a process server to serve her personally in Oregon.

Her father provided me with her home address as: 708 NE Penn Avenue Bend, Oregon 97701

Since there is a deadline approaching on service for this case, please let me know how you’d like to proceed as soon as possible.

Service on the Secretary of State

¶ 5 On November 11, Elliott Point Legal sent a copy of the summons, complaint, and case schedule to the secretary of state.

¶ 6 On November 15, attorneys filed a notice of appearance on behalf of Blumenstein.

¶ 7 On December 6, Davis’ attorney received a letter from the secretary of state acknowledging receipt of the summons and complaint in the lawsuit filed against Blumenstein. The letter states the secretary of state mailed the documents to the last known address "supplied by the plaintiff or his/her representative": 7423 Eaglefield Drive, Arlington, Washington.

On DECEMBER 06, 2016, SUMMONS, COMPLAINT AND OTHER LEGAL documents in the action relating to: ARTHUR DAVIS (plaintiff) v. LAURA BLUMENSTEIN AND JEAN DOE BLUMENSTEIN (defendant), Cause # 16 2 26779 3 SEA were received in the office of the Secretary of State. Said documents were placed on file and a duplicated copy was mailed via "Certified" mail, item number 91 7199 9991 7034 8898 6438 to the non-resident motorist at the last known address as supplied by the plaintiff or his/her representative.

Name and address to which documents were mailed:

THE MARITAL COMMUNITY OFLAURA BLUMENSTEIN ANDJEAN DOE BLUMENSTEIN7423 EAGLEFIELD DRIVEARLINGTON WA 98223.

¶ 8 On January 9, 2017, Davis filed "Plaintiff’s Declaration of Compliance with RCW 46.64.040." Davis states he was involved in an automobile collision on November 15, 2013 and "obtained a copy of the Police Traffic Collision report, which listed the defendant’s address." The declaration states his attorney attempted to serve Blumenstein at the Arlington address:

On or about November 2, 2016, my attorney’s office arranged for Elliot[t] Point Legal to serve the Summons, Complaint, and Case Information Cover Sheet, on Defendant Laura Blumenstein. Elliot[t] Point Legal attempted to serve Defendant at the addresses of 7423 Eaglefield Drive Arlington, WA 98223. Elliot[t] Point Legal left copies with the defendant’s father and learned that the defendant had moved to Oregon.

... My attorneys and Elliot[t] Point Legal then sent a copy of the service documents to the Secretary of State of Washington.

¶ 9 On January 26, Davis’ attorney filed "Plaintiff’s Attorney’s Affidavit of Compliance with RCW 46.64.040." The Plaintiff’s Attorney’s Affidavit of Compliance states that after receiving the police collision report, the attorney "arranged for Elliot[t] Point Legal to serve" the summons and complaint on Blumenstein at the Arlington address listed in the report. The attorney states that when a process server attempted to serve Blumenstein at 7423 Eaglefield Drive, Arlington, Washington, "David Blumenstein indicated that his daughter is the Defendant, and that she now lives in Oregon and her address is 708 NE Penn Avenue, Bend, Oregon 97701." The affidavit states that on January 6, the attorney mailed the summons and complaint, the letter acknowledging receipt from the secretary of state, the plaintiff’s affidavit of compliance, and Plaintiff’s Attorney’s Affidavit of Compliance to Blumenstein by certified mail to her "last known Washington address listed above in paragraph number four [7423 Eaglefield Drive, Arlington, WA 98223] and to their last known Oregon address listed in paragraph five [708 NE Penn Avenue, Bend, Oregon 97701]."

Summary Judgment Dismissal of Lawsuit

¶ 10 Blumenstein filed a motion for summary judgment dismissal of the lawsuit. Blumenstein argued Davis did not comply with the requirements for substitute service on the secretary of state and did not serve her within the statute of limitations.² Blumenstein asserted the undisputed record showed Davis’ attorney knew but did not attempt personal service on Blumenstein at the known address in Oregon. Blumenstein submitted a declaration stating, "I moved to Bend, Oregon in January 2015, where I have lived ever since"; "I have never been served with the Summons and Complaint in this matter"; and "I never received the Summons and Complaint in this matter in the mail."

¶ 11 Davis asserted he complied with the requirements to serve the secretary of state because he attempted to serve Blumenstein in the state of Washington. In the alternative, Davis argued Blumenstein waived the right to assert the defense of insufficient service of process by "inconsistent" and "dilatory" conduct. Davis’ attorney submitted the November 10, 2016 e-mail from the process server; November 30, 2016 interrogatories to Blumenstein; the December 6, 2016 letter from the secretary of state acknowledging receipt of legal documents filed in the lawsuit; a copy of the January 11, 2017 certified mail receipt for the documents sent to Blumenstein at 7423 Eaglefield Drive, Arlington, Washington 98223 and 708 NE Penn Avenue, Bend, Oregon 97701; and the return receipt of the documents sent to the Oregon address stating, "Return to Sender," "Unclaimed," and "Unable to Forward." The attorney also submitted correspondence and e-mails regarding discovery and the transcript of the deposition of David Blumenstein. David Blumenstein testified he told the process server his daughter no longer lived at the Arlington, Washington address and gave the process server his daughter’s current address in Bend, Oregon:

A. ... I told her that Laura did not live at our address and I actually gave her the address where she lived in Bend, Oregon.

Q. Okay. And were you — at that time, did you know Laura’s address by heart or did you have to look for it to —

A. I — I looked it up in my phone.

Q. Okay. Did you tell the Process Server that you would give the documents to Laura?

A. I did not.

David Blumenstein said he told his daughter that "we had received the documents and we had turned them over to State Farm Insurance and they were handling the situation."

¶ 12 The court granted the motion for summary judgment and dismissed the lawsuit. The court ruled, "[T]he case law is very clear that statutes providing for substitute service must be strictly construed and the procedures adhered to." The court concluded Davis did not comply with the requirements of RCW 46.64.040 or properly serve Blumenstein within the statute of limitations. The court ruled the substitute service statute requires the attorney to file an affidavit of compliance stating the attorney has with due diligence attempted to serve personal process upon all addresses known to him. The court found the undisputed record established Davis knew but made "no attempt at personal service in Bend, Oregon." The court also ruled Blumenstein did not waive the defense of insufficient service of process. The court denied the motion for reconsideration.

Statutory Requirements for Service on Secretary of State

¶ 13 Davis contends the court erred in dismissing his lawsuit on summary judgment. Davis claims he complied with the statutory requirements for substitute service of process on the secretary of state. Davis asserts RCW 46.64.040 does not require him to attempt to serve personal process on Blumenstein at the known address in Bend, Oregon.

¶ 14 We review summary judgment de novo, engaging in the same inquiry as the trial court. Lunsford v. Saberhagen Holdings, Inc., 166 Wash.2d 264, 270, 208 P.3d 1092 (2009). Summary judgment is appropriate when...