Martin v. Hoblit

• Decision Date: 24 August 1999
• Docket Number: No. 24798.,24798.
• Citation: 133 Idaho 372,987 P.2d 284
• Parties: Gerald W. MARTIN and Carol J. Martin, husband and wife, Plaintiffs-Appellant, v. John Lincoln HOBLIT, a/k/a John Lincoln Hoblitt, Defendant-Respondent.
• Court: Idaho Supreme Court

987 P.2d 284

133 Idaho 372

Gerald W. MARTIN and Carol J. Martin, husband and wife, Plaintiffs-Appellant, v. John Lincoln HOBLIT, a/k/a John Lincoln Hoblitt, Defendant-Respondent.

No. 24798.

Supreme Court of Idaho, Coeur d'Alene, April 1999 Term.

August 24, 1999.

Rehearing Denied November 3, 1999.

McFadden Law Offices, St. Maries, for appellant. Cathleen D. McFadden argued.

Quane, Smith, Coeur d'Alene, for respondent. Michael L. Haman argued.

WALTERS, Justice.

Gerald and Carol Martin appeal from the dismissal of their complaint against the defendant for failure to complete timely service of process as required by Idaho Rule of Civil Procedure 4(a)(2). We affirm the dismissal order.

BACKGROUND AND PROCEDURAL HISTORY

The facts are concisely stated in the district court's Opinion and Order Re: Motion to Dismiss:

Plaintiffs filed their complaint on May 4, 1995, alleging that the negligence of defendant in the operation of his vehicle on May 5, 1993, resulted in personal injuries to plaintiff husband. A summons was issued by the Office of Clerk of Court at the time the complaint was filed, but service thereof was not immediately attempted.

Plaintiffs did not engage counsel until the statute of limitations had nearly run on their cause of action. They had at some point instituted communication with an independent adjusting firm, Sierra Claims Services, Inc., which had been handling the claim for defendant's insurer, Insurance Service Underwriters of the Southwest, Inc. Around the first of May, 1995, plaintiffs contacted their present counsel, who prepared and filed the complaint and obtained concurrent issuance of the summons on May 4. On May 22 plaintiffs' attorney spoke by telephone with Dan B. Villarreal, a litigation supervisor with defendant's carrier, and told him that she had not yet served the defendant and did not intend to do so "until such time as we are unable to reach an agreement on the settlement of this claim." Villarreal confirmed the existence of the conversation and its contents by a letter of the same date.

On June 9, 1995, Mary Pierce, a claims representative with Sierra Claims Service, Inc., wrote to plaintiffs' counsel to "follow up to previous telephone conversations and correspondence regarding the above-captioned matter." Pierce's letter states that, "[a] review of the file indicates you do not intend to serve our insured in the hopes we can reach an amicable resolution. If this should change, please let me know so we may take the proper steps." The Villarreal and Pierce letters each expressed a desire to work towards "an amicable resolution."

The December 29, 1995, affidavit of plaintiffs' counsel, in referring to the telephonic communication between herself and the representative of Sierra Claims Service, Inc., asserts:

The insurance adjuster and I agreed that defendant would not be served until such time as we were unable to reach an agreement on settlement of this claim.

On September 28, 1995, Pierce wrote plaintiffs' counsel to advise that she had received and reviewed counsel's correspondence of September 19, 1995, transmitting additional documentation regarding plaintiff husband's injury. Her letter goes on to note that she was reviewing the complete medical documentation, as supplemented by that recently received, that the total of medical bills thus far was $1,120.52, and that counsel should submit all the medical bills as it appeared that the adjuster's documentation was incomplete. Her letter closes with the statement, "after I have had a chance to review the complete file, I will be back in touch with your office."

On October 19, 1995, plaintiffs' counsel wrote to Ms. Pierce, advising her that counsel had forwarded the summons and complaint for service on Mr. Hoblit as the six month time limitation for service was rapidly approaching, and inquired as to policy limits, asking, "can we settle this claim without incurring more legal fees?"

On October 31, 1995, Pierce wrote to plaintiffs' counsel in reply to the October 19 letter, acknowledging receipt thereof and requesting that counsel provide proof of service if that has occurred. Pierce also advised that policy limits were $15,000/$30,000, and that from her review of the medical documentation she did not believe that she had enough to properly evaluate the claim but at that point did not feel it was a policy limits case. She again noted the request for further documentation and observed that apparently there was none.

On October 30, 1995, the Bonner County Sheriff sought service upon defendant and determined that he was no longer living in that county. Counsel learned at that time that he had moved out of the state of Idaho.

On November 8, 1995, four days beyond the six-month limitation of I.R.C.P. 4(a)(2), plaintiffs' counsel obtained an order directing personal service outside the state or by publication, the personal service contemplated to be in Mount Vernon, Washington. On November 20, the Skagit County Sheriff determined that defendant's address in Mount Vernon was simply a mailbox business, and he was not able to determine where defendant actually resided.

Plaintiffs' counsel wrote Pierce on November 28, 1995, advising that defendant had apparently moved to the State of Washington but that her only address for him was a mailbox business. She requested an actual address where service could be perfected and advised that she would serve through publication if that was not forthcoming.

On December 4, 1995, Pierce wrote to plaintiffs' counsel to advise that they had referred the matter to defense counsel noted above. Shortly thereafter, counsel conferred and plaintiffs' attorney asked if Mr. Adams would accept service on behalf of defendant. Adams replied that he was not authorized to accept service, and on December 14, 1995, moved to dismiss for want of timely service of process.

On January 16, 1996, plaintiffs' counsel served the Idaho Secretary of State pursuant to I.C. § 49-2421, concurrently mailing a copy of the process by registered mail to defendant.

The district court granted Hoblit's motion to dismiss, finding that the Martins had not shown good cause for the failure to serve the complaint within six months as required by Rule 4(a)(2). The court found that there was no agreement between the parties to waive the 4(a)(2) time period. The court also found that there was no affirmative evasion of service by Hoblit. The district court observed: "What we have here is a defendant who sometime over the two-year period following the accident decided to move from the State of Idaho and, having no affirmative duty to keep plaintiffs or their counsel advised as to his whereabouts, did not do so."

The Martins appealed and argued that the district court erred in finding no good cause to avoid dismissal of the action under I.R.C.P. 4(a)(2). The Court of Appeals reversed the district court relying heavily on a new standard of review announced by this Court in Sammis v. Magnetek, Inc., 130 Idaho 342, 941 P.2d 314 (1997), and followed by this Court in Telford v. Mart Produce Inc., 130 Idaho 932, 950 P.2d 1271 (1998). Viewing the facts in the light most favorable to the Martins and drawing all reasonable inferences in their favor, the Court of Appeals held that the Martins had shown good cause because they had attempted to serve Hoblit within the six-month period and there were ongoing settlement negotiations.

Hoblit filed a petition for review which this Court granted.

STANDARD OF REVIEW

Where review has been granted, the established procedure is that we turn directly to the decision of the trial court and to the briefs which were considered by the Court of Appeals, following which we hear oral argument and take the case under advisement. We extend serious consideration to the views of the Court of Appeals, having previously reviewed that court's opinion in considering the merits of the petition seeking review. Where there is no dispute as to the factual circumstances, our review consists of ascertaining the effect of applicable law on the undisputed facts. Simplot v. W.C. Owens, M.D., P.A., 119 Idaho 243, 244, 805 P.2d 449, 450 (1990).

DISCUSSION

I.R.C.P. 4(a)(2) requires that service of the summons and complaint be made "upon a defendant within six months after the filing of the complaint and [if] the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice." When the defendant makes a prima facie showing that service of process was not accomplished during the six months prescribed by the rule, the district court must determine whether there was good cause for the untimely service. The burden is on the party who failed to effect timely service to demonstrate good cause. Id.; Sammis, 130 Idaho at 346,

941 P.2d at 318.

The determination of whether good cause exists is a factual one. Sammis, 130 Idaho at 346, 941 P.2d at 318, citing Shaw v. Martin, 20 Idaho 168, 175, 117 P. 853, 855 (1911). The Court in Shaw, that was not bound by a statute or rule defining timely service of a complaint, instructed that the factual question was "to be determined upon the proof offered and the diligence shown by the plaintiff in making such service, and must be decided by the court upon the facts as they are presented." Shaw, 20 Idaho 168, 175, 117 P. 853, 855.¹ In ascertaining whether good cause exists, there is no bright-line test; the question of whether legal excuse has been shown is a matter for judicial determination based upon the facts and circumstances in each case. See State v. Beck, 128 Idaho 416, 419, 913 P.2d 1186, 1189 (Ct.App. 1996)

. See also State v. Hobson, 99 Idaho 200, 202, 579 P.2d 697 (1978).

The complaint in this action was filed on May 4, 1995. Service of process did not take place within six months or by November 4, 1995, as prescribed by Rule 4(a)(2). It is this six-month...