Washington Case Law Update: Is the Statute of Limitations Tolled if the Wrong Defendant is Served?

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Washington Case Law Update: Is the Statute of Limitations Tolled if the Wrong Defendant is Served?

From the desk of Kyle D. Riley: In Washington, most tort claims must be brought within three years or they are time-barred. When a defendant is served properly, Washington law tolls the statute of limitations as to all unserved defendants. When the wrong defendant is served, is the statute of limitations tolled? Read on to learn more.

Claims Pointer: In this case arising out of car accident, the Washington Court of Appeals held that because a defendant did not establish that there was a genuine dispute as to whether the entity the plaintiff served was a proper defendant, summary judgment was inappropriate. The case delves into the Washington rules governing commencement of actions and tolling of the statute of limitations to allow for proper service on all defendants, an important consideration in many instances for insurers and their attorneys.

Rundquist v. Fox, No. 49993-2-II, Washington Court of Appeals Div. II (August 29, 2017) (unpublished)

Brian Rundquist (“Rundquist”) and Michael Fox (“Fox”) were involved in a car accident on September 4, 2012.  On September 2, 2015, just before the expiration of the limitations period, Rundquist sued Fox and Fischer Trucking, Inc., based in Snohomish County, Washington (“Washington Fischer Trucking”), a company Rundquist alleged was Fox’s employer. On October 19, Rundquist served Washington Fischer Trucking at its place of business in Snohomish County. On December 3, 2015, Rundquist amended his complaint to add Fischer Trucking Inc., a Georgia corporation (“Georgia Fischer Trucking”), as a defendant. The amended complaint alleged that Georgia Fischer Trucking was Fox’s employer.

On February 22, 2016, Rundquist attempted to serve Fox by mail and via the Washington Secretary of State. On May 10, 2016, Fox filed an answer in which he denied that Georgia Fischer Trucking was his employer. Shortly thereafter, Fox filed a motion to dismiss, arguing that Rundquist’s claims were barred by the statute of limitations. Fox alleged that Rundquist failed to serve any proper defendant prior to the three-year statute of limitations expiring or within the 90 day tolling period after filing his complaint because Fox’s employer was actually Fischer Trucking Inc., an Indiana corporation (“Indiana Fischer Trucking”).

Rundquist argued that because Washington Fischer Trucking was properly served within the tolling period, Fox’s motion to dismiss should be denied. Rundquist attached a declaration from his attorney in which his attorney explained that after they learned that Fox’s employer was Fischer Trucking, they assumed it was the Washington company because the accident occurred in Washington. The trial court granted Fox’s motion to dismiss Rundquist’s claims, explaining that it did not agree that serving the wrong defendant made the case viable. Rundquist appealed.

Under Washington law, the statute of limitations is tolled after commencement of the action for 90 days. RCW 4.16.170. This allows a plaintiff to file a complaint and then serve one or more of the properly named defendants. (The statute also allows a plaintiff to serve a defendant and then file the complaint within 90 days.) When one properly named defendant is properly served, the statute of limitations is then tolled as to all unserved defendants. However, Washington case law has established that the tolling statute does not allow plaintiffs to circumvent the statute of limitations by naming and serving an improper defendant. If a proper defendant is not served within the 90-day tolling period, the action shall be deemed not to have been commenced.

On review, the Washington Court of Appeals noted that as the moving defendant, Fox carried the initial burden of proving the absence of a genuine issue of material fact. He claimed that Indiana Fischer Trucking was the correct entity to be served, and because there was no evidence that it was, he was entitled to judgment as a matter of law. The burden then shifted to Rundquist, the nonmoving party, to establish that there was a genuine issue of material fact. Rundquist’s complaint alleged that Washington Fischer Trucking was Fox’s employer, an assertion that was supported by his attorney’s declaration explaining that he learned from Fox’s insurer that Fischer Trucking was Fox’s employer, and he assumed that Washington Fischer Trucking was the correct entity because the accident occurred in Washington. For the court, this constituted some evidence that supported Rundquist’s claim that he properly served Washington Fischer Trucking as Fox’s employer. Thus, Rundquist created a genuine dispute of material fact.

Fox did not present any admissible evidence that Washington Fischer Trucking was not his employer and thus not a proper party to the lawsuit. Instead, his attorney merely argued at the hearing that both parties knew and agreed that Washington Fischer Trucking was not Fox’s employer. However, as the court acknowledged, under Washington law, facts presented only in counsel’s statements must be disregarded. Accordingly, despite the fact that Washington Fischer Trucking was apparently not a proper defendant, Fox failed to show the absence of a genuine dispute of material fact and was not entitled to summary judgment. The trial court was reversed, and the case was remanded for additional proceedings.

NOTE: This opinion has not been published. It is provided to demonstrate how the court approaches the issues involved in the case. It cannot be cited as authority to a court of law.

View full opinion at: https://www.courts.wa.gov/opinions/pdf/D2%2049993-2-II%20Unpublished%20Opinion.pdf

Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.

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To view the most recent Oregon Law Update: Amendments Retroactive if Legislature Indicates They Are, please click here.

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