Fox v. Groff
| Decision Date | 16 February 1977 |
| Docket Number | No. 1727--III,1727--III |
| Citation | 16 Wn.App. 893,559 P.2d 1376 |
| Parties | Kenneth O. FOX, Individually and Kenneth O. Fox, as guardian ad litem for Mark Fox, his minor son, Appellant, v. Harold Leon GROFF and Jane Doe Groff, husband and wife, Respondents. |
| Court | Washington Court of Appeals |
Joseph P. Delay (appeal only), Delay, Curran & Boling, Spokane, for appellant.
John D. Schultz, Leavy, Taber, Schultz, Bergdahl & Sweeney, Pasco, for respondents.
Plaintiff appeals from a dismissal of his claim for personal injuries, arising out of an automobile accident with the nonresident defendant on September 6, 1971.
Plaintiff filed his summons and complaint on September 5, 1974; service upon defendants was attempted thereafter and ultimately made on March 11, 1975, in the state of Idaho. The court held the plaintiff's claim was barred by the statute of limitations, RCW 4.16.080(2). Even though the complaint was filed within the period of the statute of limitations, the plaintiff had not served the defendants within 90 days from the date of filing the complaint. Thus, the statute of limitations was not tolled. We affirm. CR 3(a) provides:
A civil action is commenced by service of a summons as provided in Rule 4 or by filing a complaint. If no service of summons is had upon a defendant before the complaint is filed, one or more defendants shall be served personally, or service by publication shall be commenced within 90 days after complaint is filed, . . . An action shall not be deemed commenced for the purpose of tolling any statute of limitations unless pursuant to the provisions of RCW 4.16.170.
RCW 4.16.170 provides:
For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or ninety days from the date of filing the complaint. . . . If following . . . filing, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations.
The rule requires that the filing of the complaint and the service of the summons must occur within the statutory period before the statute of limitations is tolled. Seamans v. Walgren, 82 Wash.2d 771, 514 P.2d 166 (1973); Hansen v. Watson, Wash.App., 559 P.2d 1375 (1977). In this case both the summons and the complaint were filed within the 3-year period for commencing such an action, albeit the last day. RCW 4.16.080(2). Thus, the action was tentatively commenced, 1 and the statute of limitations was tolled, pending service upon the defendants within 90 days of the filing. If within the next 90 days the defendants had been served, either personally or through the secretary of state (RCW 46.64.040), the action would have been properly commenced and the statute of limitations would have been tolled. The action was not properly commenced since both the 90-day period and the statute of limitations had run before the defendants were served. Citizens Interested in the Transfusion of Yesteryear v. Board of Regents of the University of Washington, 86 Wash.2d 323, 544 P.2d 740 (1976); State ex rel. Uland v. Uland, 36 Wash.2d 176, 216 P.2d 756 (1950); McPhee v. Nida, 60 Wash. 619, 111 P. 1049 (1910).
The plaintiff contends that Curtis Lumber Co. v. Sortor, 83 Wash.2d 764, 522 P.2d 822 (1974), negated the requirements: that service and filing be accomplished within 90 days of each other; that only a filing or service need be done to properly commence an action so as to toll the statute of limitations; and that the remaining action may occur at any time thereafter. We disagree. In Curtis, which was a foreclosure, the complaint was filed exactly 8 months after the plaintiff filed its notice of lien and service was had upon one of the defendants 2 days thereafter. The court held that the rule of City Sash & Door Co. v. Bunn, 90 Wash. 669, 156 P. 854 (1916), 2 had been displaced and 'rendered inoperative by the adoption of the new rules of civil procedure' in 1967. Curtis Lumber Co. v. Sortor, supra, 83 Wash.2d at 767, 522 P.2d at 824. Service of the summons was accomplished within 90 days after the filing of the complaint; the 90-day issue was not before the court; Curtis is not applicable.
Plaintiff next contends that RCW 4.16.180, which tolls the running of any applicable statutes of limitations when a defendant is out of state or when concealed, applies here because defendant Harold Groff was an out-of-state resident traveling within the state of Washington at the time of the accident. The plaintiff is in error. In Smith v. Forty Million, Inc., 64 Wash.2d 912, 915, 395 P.2d 201, 203 (1964), the court stated:
that where a plaintiff has a statutory right to serve summons on the Secretary of State, as the statutory agent of the defendant, the fact that the defendant is physically absent from the state does not toll the statute of limitations.
Cf. RCW 46.64.040.
The fact that the defendants are out-of-state residents who can be reached under the long-arm statute, RCW 4.28.180, .185, does not toll the statute of limitations. Summerrise v. Stephens, 75 Wash.2d 808, 454 P.2d 224 (1969).
Lastly, plaintiff contends that the grammatical construction of the rule and the statute requires that the 90-day provision applies only to the commencement of service by publication and is not applicable to those defendants who can be served personally. Plaintiff contends that if in fact there was a requirement that personal service be accomplished within 90 days after the filing of the complaint, there should be a comma placed after publication so that the phrase RCW 4.16.170 would read:
The plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication, within ninety days from the date of filing the complaint.
Punctuation may or may not be the determining factor in statutory construction. As the court noted in State v. Fabbri, 98 Wash. 207, 209, 167 P. 133, 134, L.R.A. 1918A, 416 (1917):
It seems to be the well-settled rule that punctuation is a fallible standard and the last resort as an aid in the interpretation of a statute, . . .
The present statute and its predecessors have been consistently construed to apply the 90-day period to both personal service and the commencement of service by publication. Citizens Interested in the Transfusion of Yesteryear v. Board of Regents of the University of Washington, su...
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