Kuk v. Nalley
| Decision Date | 07 September 2007 |
| Docket Number | No. S-12024.,S-12024. |
| Citation | 166 P.3d 47 |
| Parties | Thomas KUK and Sabina Kuk, Appellants, v. Janet NALLEY, Appellee. |
| Court | Alaska Supreme Court |
William Dennie Cook, Law Office of William D. Cook, PC, Eagle River, and Jahna Lindemuth, Dorsey & Whitney, LLP, Anchorage, for Appellants.
Kimberlee A. Colbo, Hughes Bauman Pfiffner Gorski & Seedorf, LLC, Anchorage, for Appellee.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
A statute provides that when a defendant leaves the state her absence is not part of a limitations period. Does this statute apply when she is temporarily out of the state but amenable to service of process? We answer "no" because our case law establishes that the absence contemplated by the statute must obstruct or prevent a suit. This interpretation serves the policy of limitations statutes by providing a definite time and avoiding needless uncertainty.
On November 17, 2002, motor vehicles driven by Janet Nalley and Thomas Kuk collided. Thomas, his wife, Sabina, and their children, Ryan and Laura, were injured in the accident. More than two years later, on November 30, 2004, Thomas and Sabina sued Nalley for personal injuries and property damage arising out of the accident. In the same suit Thomas also sued on behalf of the Kuks' children.
Nalley moved for summary judgment, arguing that the two-year statute of limitations applicable to tort claims for personal injury and property damage, AS 09.10.070, barred the claims of the adult Kuks.1 The Kuks opposed the motion and filed a cross-motion on the same issue, arguing that under AS 09.10.130 the statute of limitations should be extended for the period of time that Nalley was absent from the state during the limitations period.
The superior court granted Nalley's motion for summary judgment and denied the cross-motion of the Kuks.2 A final judgment was then entered in accordance with the court's summary judgment order in favor of Nalley and against Thomas and Sabina Kuk. From this judgment the Kuks have appealed.
As this case is presented, there are no genuine issues of material fact. We therefore review the superior court's grant of summary judgment nondeferentially in order to determine whether Nalley was entitled to judgment as a matter of law.3
The Kuks point to the fact that Nalley was outside of Alaska for health and surgery reasons from November 2003 to June 2004. They argue that this period of absence should be excluded from the two-year statute of limitations under the absent-from-the state tolling provision contained in AS 09.10.130.4 Nalley argues that our decision in Byrne v. Ogle5 held that the absence tolling provision in AS 09.10.130 does not apply where substituted service is available under AS 09.05.020(a)6 and AS 09.05.0407 and that substituted service on her was available during her absence.
The Kuks seek to distinguish Byrne. They argue that Byrne held that the absence tolling provision does not apply only when statutory substituted service under AS 09.05.020 and .040 is available. They contend that substituted service was not available because even though Nalley had temporarily "departed" from the state for purposes of the tolling statute she had not "moved" from the state within the meaning of the substituted-service statute. Therefore Nalley was not a nonresident—as required under section .020—and she was not a person "who has moved to another state after the accident"— as required under section .040. They argue that since Byrne does not apply, the case is controlled by the plain language of the second sentence of AS 09.10.130: "If a person departs from the state . . . the time of absence . . . is not part of the time limited for the commencement of the action." Therefore the time of Nalley's absence should not be counted in computing the two-year limitations period. The Kuks also contend that the tolling provision does not require a showing that a plaintiff is actually unable to effect service on an absent defendant, but instead that "[t]he statute correctly presumes that a seven-month absence seriously decreases the Kuks' ability to prove their cause of action and effectuate commencement of an action against Ms. Nalley."
We do not find it necessary to resolve the question whether the "moved to" language of AS 09.05.040 applies to any departure from the state. Instead, we affirm on the basis that the reasoning in Byrne is not limited to the substituted-service statute, but also applies to extraterritorial service under the Civil Rules authorized by the long-arm statute, AS 09.05.015. Our reasons follow.
Alaska Statute 09.10.130 has not been changed since it was first adopted by the state legislature in 1962. Similar provisions existed in the statutes governing the Territory of Alaska and the pre-territorial District of Alaska.8 Numerous other states also have statutes with similar tolling provisions.9
This court addressed the continuing relevance of the absence tolling statute in Byrne. The defendant, Ogle, was in an automobile accident in Alaska.10 The United States Army rotated him out of the state before the two-year statute of limitations ran, but he remained amenable to service under the statutory substituted-service provisions of AS 09.05.020 and AS 09.05.040.11 We held that the tolling statute and the substituted-service statute must be examined together in order to determine the true meaning of the tolling statute:
It is conceded that if the tolling statute is examined in isolation, while ignoring all other considerations, it might be read as indicating that where a defendant departs from the state after a cause of action accrues, the time he is absent should not be considered as part of the period of limitation. However, in order to give a statute its true meaning, it must be examined in conjunction with other statutes bearing upon the problem being considered.[12]
We noted that under the substituted-service statute the plaintiff was able to serve the defendant notwithstanding his absence from the state.13 Because the defendant's absence was thus irrelevant to the ability of the plaintiff to commence and maintain a suit, we concluded that applying the tolling statute was neither necessary nor justifiable:
The right of the plaintiff to commence his action and obtain a judgment, being complete and unaffected by the defendant's absence, it is not necessary or justifiable to extend AS 09.10.130 to cover this situation in which the appellee was personally absent, but at all times subject to substituted service upon the Commissioner of Revenue. To ignore this fact and give a broader application to the tolling statute would lead to undesirable results inconsistent with the purposes of statutes dealing with periods of limitation.
. . . . To apply the tolling statute to a situation where the defendant is at all times amenable to service is repugnant to the general purposes of statutes of limitations. The policy of the law is to allow a reasonable but definitely limited time for the bringing of an action after which the matter is put to rest.[14]
We also emphasized the purpose of the tolling statute:
It is the apparent purpose of the tolling statute to prevent a plaintiff's being deprived of an opportunity to prove his cause of action by the defendant absenting himself from the jurisdiction for the duration of the period of limitation. The tolling statute preserves the plaintiff's cause of action until service has been made available and practical, by the defendant's presence in the state, for a time equal to the total period of limitation.
The essence of the difficulty sought to be remedied by the suspensory statute is not mere personal absence of the defendant, but such unavailability as will defeat the power of a plaintiff to effectuate commencement of his action.[15]
As this language suggests, the premise of the tolling statute is that a defendant's personal absence from the jurisdiction makes service on the defendant either impossible or difficult and this makes commencement or maintenance of a suit against the defendant likewise impossible or difficult.
This premise was once valid. But the shift in personal jurisdiction jurisprudence effectuated by International Shoe Co. v. Washington16 and its progeny have made the premise of the statute no longer valid in most cases. International Shoe signaled the end of the requirement that a person must be within the territorial jurisdiction of a court in order for that court to have jurisdiction.17 Instead, the International Shoe Court held that due process only requires that a defendant "have certain minimum contacts with [a state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice."18
International Shoe prompted the promulgation of numerous statutes and rules authorizing suits against out-of-state defendants and facilitating service of process on them. One example of such a statute is the substituted-service statute under which service was made in Byrne. This was enacted in 1960.19 Another statute reflecting the International Shoe changes is Alaska's long-arm statute, codified as AS 09.05.015. This was enacted in 1968.20 It sets out circumstances, including types of contacts with Alaska, under which personal jurisdiction may be exercised over defendants. The long-arm statute defines personal jurisdiction comprehensively, though not exclusively.21 It includes cases where both resident and nonresident defendants are alleged to have acted in a manner giving rise to liability in the state. Personal service under the statute is to be accomplished "according to the rules of civil procedure."22
At the time of the enactment of the long-arm statute, Rule 4 of the Alaska Civil Rules provided that a person outside the state could be served "in the same manner as if service were...
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Garber v. Menendez
...Some state courts interpreted their tolling laws to have the same effect. See, e.g. , Meyer , 498 S.E.2d at 638–39 ; Kuk v. Nalley , 166 P.3d 47, 50–55 (Alaska 2007) ; Walsh v. Ogorzalek , 372 Mass. 271, 361 N.E.2d 1247, 1250 (1977).But several States, including Ohio, did not alter their to......