Grimmett v. Burke, 71863
| Decision Date | 09 November 1995 |
| Docket Number | No. 71863,71863 |
| Citation | 21 Kan.App.2d 638,906 P.2d 156 |
| Parties | Patricia GRIMMETT, Appellant, v. Michael J. BURKE, S & W Auto Sales Co., Lewis Toyota, Inc., and Farmers Insurance Company, Appellees. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. In order for service of process to "substantially comply" with statutory conditions, it must make the party served personally aware that an action or proceeding was pending in a specified court in which his or her person, status, or property was subject to being affected.
2. An attempt to serve a party by leaving a copy of the summons and petition at an address not occupied by the party being served and then by mailing the same to that address does not "substantially comply" with the statutes defining personal service in this state.
3. It must be shown that an attempted service of process, later adjudicated invalid, gave a party actual, personal notice that he or she had been sued before it can be held that service was "purported" to have been made on such party as that term is used in K.S.A. 60-203(b).
4. Other factors to be considered in determining whether service was "purported" to have been made are: (1) The service determined invalid must have appeared to have been regular and valid as shown on the return of service; (2) the party who alleges it "purported" to have served the other party must have believed, in good faith, that the original service was valid; and (3) the party seeking application of K.S.A. 60-203(b) did not know the other party was contesting service until it was too late to obtain valid service.
5. The driver of a vehicle that is covered by insurance issued to its owner which covers "permissive users" is not an uninsured driver even though the driver has no personal liability insurance coverage.
William P. Ronan, of Cloon, Bennett & Ronan, Overland Park, for appellant.
W. Robert King and Katherine C. Opie, of Couch, Strausbaugh, Pierce & King, Chartered, Overland Park, for appellee Michael J. Burke.
Donald P. Herron and Rodney K. Murrow, Kansas City, Missouri, for appellee S & W Auto Sales Co.
Donald C. Bollard, of Sherman, Taff & Bangert, P.C., Leawood, for appellee Lewis Toyota, Inc.
Bren Abbott, of Heilbron, Powell & Berra, Kansas City, Missouri, for appellee Farmers Insurance Company.
Before LEWIS, P.J., PIERRON, J., and JAMES W. PADDOCK, District Judge, Retired, Assigned.
Patricia Grimmett was a passenger in an automobile driven by Michael J. Burke. On July 22, 1990, she was injured when that automobile crossed the center line of a street and hit a light pole. Grimmett sued Burke, Lewis Toyota, Inc. (Lewis Toyota), S & W Auto Sales Co. (S & W), and Farmers Insurance Company (Farmers) in an effort to recover damages sustained in that accident. She appeals from adverse rulings in favor of the defendants.
Lewis Toyota is an automobile dealer in Topeka. Lewis Toyota delivered possession of the 1989 Grand Am automobile in question to Burke.
S & W is an automobile dealer with offices in Harrisonville, Missouri. After the accident, Lewis Toyota was paid the purchase price of the car by S & W and assigned the title certificate to S & W. Burke had some relationship with S & W, but it is denied that he was their agent or employee. After the accident, the owner of S & W bailed Burke out of jail where he was being held on DUI charges. It is also relevant that the license tags on the vehicle at the time of the accident were registered to S & W.
On the date of the accident, Burke, in the company of Grimmett, picked up the automobile from Lewis Toyota. Darrel Roeder, the used car manager at Lewis Toyota, testified that he had been involved in about 50 auto transactions with Burke since 1989. Roeder testified that he believed Burke was doing business for or as S & W. All of his face-to-face transactions with S & W were through Burke, who paid for any car he purchased with S & W checks. Roeder testified that he understood that Burke purchased the Grand Am through or for S & W. He indicated that Burke was to pay for the vehicle within 30 days and, at the time of payment, would be given an assigned title. This method was consistent with their past dealings.
On the date of the accident, Grimmett was apparently assisting Burke as he drove automobiles between dealerships. Burke and Grimmett drove around the Kansas City area in the Grand Am, looking for other cars to buy. The next day, they resumed their search. After driving for some period of time, they decided to go to Burke's sister's house to swim and have a few drinks. There is no doubt that they had a few drinks and apparently went swimming as well. At some time during the afternoon it began to rain, and Burke and Grimmett found themselves locked out of his sister's house. They both got into the Grand Am to stay dry and to sleep. Sometime during the night, Burke woke up and drove off with Grimmett, who was still asleep. Grimmett's next memory was seeing a physician after the accident.
Neither Lewis Toyota nor S & W admit to owning the Grand Am at the time of the accident. Lewis Toyota maintains that it sold the car to Burke or to S & W. S & W denies owning the car at the time of the accident but admits it later paid for and received title to the vehicle.
After the accident, it was discovered that Burke did not have a valid driver's license. His license had been suspended, not for driving violations, but for failing to pay parking tickets. Despite the suspension of his driver's license, Burke remained in physical possession of it at the time of the accident.
The purpose of the pretrial maneuvers was to determine who could be held responsible for Burke's negligence. In addition, a significant issue concerns whether the action against Burke is time barred by reason of Grimmett's failure to serve Burke within the statute of limitations. The trial court granted pretrial judgment in favor of all defendants.
Further facts will be developed as needed to develop the issues on appeal.
An action must be "commenced" prior to the running of the applicable statute of limitations. Easily the most troublesome question in this lawsuit is whether Grimmett commenced her action against Burke within that time frame. The trial court held that the action against Burke was time barred.
The statute of limitations in this case was 2 years. This action must have been "commenced" prior to July 22, 1992, 2 years after the date of the accident, or the filing must Grimmett filed case No. 93-28 on August 22, 1990, and Burke was properly served on November 20, 1990. For reasons not relevant to this appeal, case No. 93-28 was dismissed without prejudice in October 1992.
somehow relate back to that date in order for it to have been timely filed.
The instant action was filed on March 15, 1993, within 6 months of the dismissal of case No. 93-28. In order for this action to be "commenced" within the statute of limitations, service on the defendant had to be obtained within 90 days. See K.S.A. 60-518.
"A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1)." (Emphasis added.) K.S.A. 60-203(a).
Grimmett originally sought to serve Burke on April 28, 1993, by leaving a copy of the petition and summons at 9722 State Line Avenue and then mailing the same to that address. It was assumed that this was the address of Burke's dwelling house or usual place of abode. The original return of service showed that copies were left at the address by the sheriff's office. However, on May 10, 1993, an amended return was filed, showing that the mailing was returned to the sheriff's office indicating: "(1) moved, left no address; (2) unable to forward; (3) return to sender."
On May 21, 1993, the defendant's attorney advised the plaintiff that they would contest service of process. Despite this notification, the plaintiff attempted no further service on the defendant until January 1994.
The plaintiff undertook a number of steps to locate Burke. On June 10, 1993, the plaintiff was advised by the Kansas Department of Motor Vehicles that Burke's address was 8900 Gillette in Lenexa. Upon receiving this information, the plaintiff asked for and was given an additional 30 days to complete service on Burke.
The plaintiff next hired a "skip tracer" to find Burke. On July 9, 1993, the skip tracer reported that "[s]ubject still lives at 8900 Gillette, Lenexa, Kansas 66215 ... [s]ubject also has a P.O. Box 14886, Leawood, Kansas 66206."
On July 14, 1993, the plaintiff's 120 days to obtain service from the date of the filing of the petition expired.
On August 15, 1993, the plaintiff wrote to Burke's attorneys, advising them that she believed her service on Burke at 9722 State Line Avenue was valid. On September 13, 1993, attorneys for Burke, fearful that the plaintiff might take a default judgment, filed a motion for summary judgment, citing the failure of service and expiration of the statute of limitations.
On December 9, 1993, the trial court dismissed the action against Burke for lack of jurisdiction due to the running of the statute of limitations. On January 4, 1994, Burke was finally served when a summons and petition were served on his wife at his home.
Burke has filed an affidavit stating that he did not live at 9722 State Line Avenue in 1993 and that he was not aware that anyone was trying to serve him with process until his wife was served in January 1994.
Additionally, there is nothing in the record to indicate that...
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