Fittro v. Alcombrack
| Decision Date | 23 April 1979 |
| Docket Number | No. 5904-I,5904-I |
| Citation | 23 Wn.App. 178,596 P.2d 665 |
| Parties | Dorothy Jackson FITTRO, Appellant, v. Charles ALCOMBRACK, Administrator of the Estate of Roy Alcombrack, Deceased, Jane Doe Alcombrack, surviving spouse of the Deceased, Defendants, State Farm Mutual Automobile Insurance Company, a corporation, Respondent. |
| Court | Washington Court of Appeals |
Lanning & Bryan, Robert S. Bryan, Seattle, for appellant.
Julin, Fosso & Sage, Ralph W. Anderson, H. C. Fosso, Seattle, for respondent.
On February 25, 1974, Dorothy Jackson Fittro was injured when her automobile collided with one driven by Roy Alcombrack. Alcombrack subsequently died for reasons not related to the accident. Fittro contends that Alcombrack, an employee of State Farm Mutual Automobile Insurance Company, was operating a company vehicle in the course of his employment when the accident occurred.
On November 4, 1975, Fittro served Alcombrack's personal representative a summons and complaint (filed on November 5, 1975) for recovery of damages sustained in the accident. State Farm, although named as a codefendant, was not served until March 14, 1977, more than 3 years from the date of the automobile accident and after Fittro's suit against Alcombrack's estate had been dismissed. At trial, State Farm was granted a summary judgment on the ground that the action was barred by the statute of limitations. 1
Fittro appeals on the theory that by serving one named defendant and thereafter filing the complaint, the statute of limitations was tolled by RCW 4.16.170 2 as to the unserved defendant. We disagree.
When an action is dismissed, the statute of limitations continues to run as though the action had never been brought. Humphreys v. United States, 272 F.2d 411 (9th Cir. 1959); See also Vance v. Seattle, 18 Wash.App. 418, 424 n. 4, 569 P.2d 1194 (1977); Gould v. Bird & Sons, Inc., 5 Wash.App. 59, 485 P.2d 458 (1971). Because the action against Alcombrack was dismissed before State Farm was served, the action against Alcombrack no longer tolled the statute of limitations either as to Alcombrack or as to State Farm. Fittro's failure to serve State Farm within the 3-year statutory period bars her claim. Fox v. Groff, 16 Wash.App. 893, 559 P.2d 1376 (1977).
Affirmed.
1 RCW 4.16.080(2) provides for a 3-year statute of limitations in actions for "taking, detaining, or injuring personal property, including an action for...
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