No. 21950-0-III.The Court of Appeals of Washington, Division Three. Panel Nine.
Filed: January 15, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 02-2-03904-3. Judgment or order under review. Date filed 03/20/2003.
Counsel for Appellant(s), Dustin Douglass Deissner, Deissner Law Firm PLLC, 1707 W Broadway Ave, Spokane, WA 99201-1817.
Counsel for Respondent(s), Todd R. Startzel, Leveque Kirkpatrick
Startzel, 1717 S Rustle Rd Ste 102, Spokane, WA 99224-2065.
KATO, A.C.J.
Andrea Ehlen appeals the summary judgment dismissal of her personal injury claim against a non-resident vehicle owner. She contends the court erred by finding that she failed to exercise due diligence in attempting to serve her complaint on Mr. and Mrs. Daniel Burt prior to serving the Washington Secretary of State. We affirm.
Andrea Ehlen and Jacob Burt, Daniel’s son, were involved in a motor vehicle accident on Spokane’s Thor Street on June 29, 1999. There was no accident report because police did not investigate. Jacob Burt provided Ms. Ehlen with his name and Idaho driver’s license number as well as the name and telephone number of his father’s insurance company and policy number. Ms. Ehlen made a claim with Allied Insurance, the Burts’ carrier.
On June 13, 2002, Allied informed Ms. Ehlen in writing that the statute of limitations for bodily injury would expire on June 29, 2002. Allied advised her that she had to settle her claim or file a lawsuit against the responsible party or parties before expiration of the appropriate limitation period. Failure to so file would result in Ms. Ehlen forever losing her right to recover damages for the accident. The claims adjuster also provided his telephone number and extension and asked that she call him if she wished to discuss any aspect of the claim. Ms. Ehlen then retained a Spokane law firm on June 18, 2002, to assist her in settling her claim. She filed a summons and complaint on June 21, 2002.
The record provides the following details about Ms. Ehlen’s attempt to locate the Burts for purposes of service of process. She did not personally request information from Allied regarding the Burts’ address. One of her attorneys stated that he did not request address information from Allied because, in his 25 years of practice, no insurance company had ever agreed to release the address of its insured for service of process purposes. He did, however, recall looking in the telephone book and calling directory assistance for the greater Spokane/Coeur d’Alene area.
Another of her attorneys stated that his usual method of searching for a defendant was to call directory assistance and check Qwestdex.com on the internet. He called directory assistance and was advised that only one Daniel Burt was listed in the State of Idaho, but he had an unpublished number. He did not get any results when he ran the name through the Qwestdex.com residential listing finder. This attorney also stated that he could not recall a single instance of an insurance company releasing the address of its insured for service of process purposes.
Unable to locate an address for service on the Burts, Ms. Ehlen served notice on the Secretary of State on July 15, 2002, by mailing two copies of the summons and complaint, an affidavit of compliance with RCW 46.64.040, a notice of service upon the Secretary of State, a case assignment notice and order, and the appropriate fee. She mailed copies of the same documents by registered mail — return receipt requested, and by regular mail to Mr. and Mrs. Daniel Burt in care of Allied Insurance. The Secretary of State acknowledged receipt of the documents on July 18, 2002, and advised that it also mailed a copy to the Burts in care of Allied Insurance.
The Burts then filed a motion for summary judgment dismissal on the basis that Ms. Ehlen failed to properly commence her action against them. Mr. Burt stated that he and his wife had resided in Sandpoint, Idaho, for the past 48 years and at the same address since 1989. He maintained telephone service for the entire time he lived at that address and never requested the telephone company to forego listing his name, telephone number, or address in its directory. Mr. Burt believed his name, address, and telephone number were listed in the Sandpoint telephone directory every year since 1977. His son, Jacob, resided with him and had resided with him all his life. Mr. Burt neither demanded nor asked his insurance company to refrain from disclosing his address or number to Ms. Ehlen. He also did not receive service of process from Ms. Ehlen. Counsel for the Burts stated that he performed a search on Qwestdex.com on February 25, 2003 (two days after Ms. Ehlen’s attorney conducted his search) and located two persons named Daniel Burt in Idaho. The first was the Daniel Burt who is named as a defendant in this action.
Determining that Ms. Ehlen failed to exercise due diligence in attempting to personally serve her complaint on the Burts, the court granted their motion for summary judgment. She appeals.
Summary judgment shall be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301
(1998) (citing Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991)). An appellate court engages in a de novo standard of review with regard to a trial court ruling on a summary judgment motion. Folsom, 135 Wn.2d at 663. Washington’s non-resident motorist statute provides that valid personal service on a defendant may be obtained by serving the summons and complaint upon the Secretary of State. RCW 46.64.040; Martin v. Meier, 111 Wn.2d 471, 476, 760 P.2d 925
(1988). Similar statutes addressing lawsuits from motor vehicle accidents have been upheld by the United States Supreme Court. Id. (citing Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927)). Due process also requires notice to the defendant. Id. at 476 (citing Smith v. Forty Million, Inc., 64 Wn.2d 912, 395 P.2d 201 (1964)). Washington’s statute provides three methods to establish notice to the defendant: by obtaining the defendant’s endorsed return receipt; by personally serving the defendant out of state; or by the plaintiff’s attorney’s sworn statement of due diligence to serve the defendant at all known addresses, and sending a copy of the summons and complaint to defendant’s last known address and providing service of the same upon the Secretary of State. RCW 46.64.040; Martin, 111 Wn.2d at 477.
The defendant may not receive actual notice under the last alternative. Id. But actual notice is not required by due process. Id. at 476 (citing Wuchter v. Pizzutti, 276 U.S. 13, 19, 48 S.Ct. 259, 72 L.Ed. 446 (1928)). Rather, due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Martin, 111 Wn.2d at 477-78 (quoting Mullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Due process is satisfied by mailing notice to the defendant’s last known address only after exercising due diligence in attempting to personally serve the defendant. Martin, 111 Wn.2d at 478. Constructive or substituted service statutes require strict procedural compliance. Martin v. Triol, 121 Wn.2d 135, 144, 847 P.2d 471 (1993).
The due diligence issue is normally reserved for the trier of fact. Carras v. Johnson, 77 Wn. App. 588, 593, 892 P.2d 780 (1995). If no factual issues are disputed, however, it is a question of law for the court. Id. (citing Triol, 121 Wn.2d at 151). While due diligence may not be quantified in certain terms, Martin and Triol give guidance as to what constitutes reasonable efforts. Id. at 593-94 (holding plaintiff’s efforts reasonable where he retained a professional process server, relied on the accident report, and began his efforts nine days before the statute of limitations expired); see also Martin, 111 Wn.2d at 473-75
(due diligence found where process server attempted personal service at defendant’s last known address, contacted the police department, questioned neighbors, and checked the King County directory service; and private investigator inquired of registrar’s office where defendant had attended college); Triol, 121 Wn.2d at 150-51 (due diligence satisfied where process server attempted service at defendant’s residence and contacted neighbors, but could not locate defendant because he was sailing a boat in Canadian waters).
The focus should be on what the plaintiff did, rather than on what he or she did not do. Carras, 77 Wn. App. at 593. No matter how close to the end of the statute of limitations, the plaintiff’s attorney must make a due and diligent search for the defendant. Martin, 111 Wn.2d at 481. Ms. Ehlen filed her summons and complaint on June 21, 2002, thereby tolling the statute until September 19, 2002, to effect service on the Burts.[1]
Lacking information on the Burts’ whereabouts, Ms. Ehlen served her complaint by mail on the Secretary of State on July 15, 2002, 66 days prior to the statute of limitation’s expiration. In the interim, one of Ms. Ehlen’s attorneys checked the telephone book and called directory assistance for the greater Spokane/Coeur d’Alene area. Another of her attorneys checked directory assistance for Idaho and performed an internet search through the Qwestdex.com residential listing finder. Neither attorney’s inquiry produced any useful results.
Although the law does not require that a plaintiff try to locate a defendant by any conceivable means, it does require honest and reasonable effort. While Martin and Triol do not suggest that honest and reasonable effort requires the hiring of a process server or private investigator, they do endorse the methods employed by those individuals to evidence that due diligence occurred. Ms. Ehlen could have made additional attempts to locate the Burts in a number of ways, including (1) publishing legal notice; (2) hiring a process server or private investigator; (3) seeking advice from process servers, private investigators or other attorneys regarding the procedures they might follow to locate someone under similar circumstances; (4) utilizing multiple websites in her internet search; (5) requesting address information from the Burts’ insurance company; or (6) contacting the Idaho Department of Motor Vehicles.
Considering that Jacob Burt provided his name and Idaho driver’s license number, as well as the name and telephone number of his father’s insurance company and policy number, and that the Burts had resided in Sandpoint, Idaho, for the past 48 years, including 13 years at their present address, we determine that Ms. Ehlen did not exercise due diligence in trying to locate the Burts. Indeed, counsel for the Burts performed a search on Qwestdex.com two days after counsel for Ms. Ehlen performed a similar search and located two persons named Daniel Burt in Idaho, the first of whom is the named defendant here.
Because Ms. Ehlen did not exercise due diligence, this court need not address whether mailed notice to the Burts in care of their insurer was appropriate or whether the sworn statement of Ms. Ehlen’s counsel complied with RCW 46.64.040. The trial court did not err by granting summary judgment dismissal.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and KURTZ, J., concur.