Washington Case Law Update: Plaintiff Must Attempt Service at ALL Known Addresses of Defendant – Whether in Washington or Elsewhere – Before Substitute Service on Secretary of State is Proper

Washington Case Law Update: Plaintiff Must Attempt Service at ALL Known Addresses of Defendant – Whether in Washington or Elsewhere – Before Substitute Service on Secretary of State is Proper From the desk of Smith Freed Eberhard:

Washington law permits a plaintiff injured in a car accident to serve the secretary of state with the summons and complaint—instead of the defendant—in certain circumstances. The statute, RCW 46.64.040, imposes strict conditions that an attorney must follow in order to properly divert service from the defendant to the secretary of state. This method of service is utilized when a non-resident is involved in a car accident and the resident plaintiff cannot, with due diligence, find the non-resident. What if a plaintiff attempting substitute service knows the out-of-state address of the defendant but fails to attempt service there? Can the plaintiff still comply with the statute and effectuate service by serving the secretary of state? Read on to find out.
Claims Pointer: In this appeal from a grant of summary judgment, the Washington Court of Appeals interpreted RCW 46.64.040 to determine whether a plaintiff complied with the statute when her attorney failed to personally serve a non-resident defendant. Identifying that a plaintiff is required to strictly comply with the statute in order to properly attain substitute service, the court interpreted the statute to require a plaintiff to attempt service at all known addresses before submitting the summons and complaint to the secretary of state. The plaintiff’s attorney had failed to attempt service at a known, out-of-state address before serving the secretary of state. Accordingly, the plaintiff failed to strictly comply with the statute. This case explores the requirements imposed on a Washington plaintiff attempting to serve a non-resident defendant for a motor vehicle collision in Washington.
Davis v. Blumenstein, Wash. Ct. App. No. 76918-9-I (Jan. 14, 2019).
RCW 46.64.040 allows plaintiffs to serve Washington’s secretary of state with the summons and complaint against a defendant involved in an automobile collision. Because this statute is a departure from common law, strict adherence to its mandates is required. First, the statute provides for substitute service (i.e., service on the secretary of state) on non-residents for residents who “cannot, after a due and diligent search, be found in [Washington]” within three years of the collision. In order to qualify for this substitute service, however, the resident plaintiff must make reasonable efforts to comply with notice requirements. Compliance can be achieved by: (1) sending the summons and complaint to the secretary of state along with an affidavit stating that the attorney tried to serve the defendant at all known addresses; (2) showing that the defendant received the summons via mail; or (3) personally serving the defendant. Only by strict compliance with one of these three methods can a resident plaintiff comply with Washington’s substitute service statute.
In the case at hand, Arthur Davis (“Plaintiff”) and Laura Blumenstein (“Defendant”) were involved in a motor vehicle collision in Washington in November of 2013. Three years later, just before the statute of limitation for Washington personal injury claims expired, Plaintiff filed a lawsuit. Plaintiff’s attorney hired a process server to attempt personal service at the address listed on the police report. However, Defendant’s father answered the door and told the process server that Defendant no longer resided at that address. He provided the process server with Defendant’s new address and sent him away.
Plaintiff’s attorney was advised that Defendant no longer lived at the address listed on the police report. The process server asked Plaintiff’s attorney whether they should attempt service of Defendant at her new Oregon address or if he should instead mail the summons and complaint to the Washington secretary of state. Plaintiff’s attorney chose the latter. Soon after, Defendant’s attorney filed a notice of appearance.
Defendant maintained that she never received the summons and complaint and that service was improper. Arguing insufficient service of process, Defendant moved for summary judgment. The trial court granted Defendant’s motion for summary judgment and dismissed Plaintiff’s claim, finding that Plaintiff did not attempt service of Defendant at all known addresses before attempting substitute service.
Plaintiff appealed, arguing that he had complied with Washington’s substitute service statute by attempting personal service at all known addresses in Washington. Specifically, Plaintiff argued that RCW 46.64.040 does not require the attorney to attempt service of a known address when that address is out-of-state. Rather, he argued that the statute’s plain language required only that he attempt service at all known addresses in Washington before seeking substitute service. Defendant countered with the same argument she had advanced below, that Plaintiff knew of her Oregon address and had failed to attempt service there. The court agreed with Defendant. It held that the statute requires an attorney to attempt to serve a defendant at “all addresses known to him or her” without limitation. Accordingly, because Plaintiff knew of Defendant’s out-of-state address before attempting substitute service, he did not strictly adhere to the requirements of the statute. Because he did not strictly adhere to the requirements of the statute, service was insufficient, and the trial court was correct in dismissing Plaintiff’s lawsuit.
Although Washington allows substitute service in certain circumstances, resident plaintiffs are still required to provide sufficient notice to a defendant. When your non-Washington insured is involved in a Washington lawsuit, be sure that service is proper before waiving the pertinent defenses.
View full opinion at: https://www.courts.wa.gov/opinions/pdf/769189.pdf 
To view the latest Oregon Case Update: Oregon Trial Court’s Award of Reduced Attorney Fees Subject to Remand Due to Insufficient Explanation, please click here.

This article is to inform our clients and others about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in this post without seeking professional counsel