No. 27780-8-IIThe Court of Appeals of Washington, Division Two.
Filed: October 18, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County, No. 002031347, Hon. Edwin L. Poyfair, August 3, 2001, Judgment or order under review.
Counsel for Appellant(s), Christopher B. Rounds, Bullivant Houser Bailey etal, 805 Broadway St. Ste 400, Vancouver, WA 98660.
Counsel for Respondent(s), David E. Gregerson, Gregerson Langsdorf, 415 E 17th St, Vancouver, WA 98663.
ARMSTRONG, J.
After Samuel Winters began a lawsuit against Sarah Fowler, he attempted to serve her at a California address listed on her driver’s license. When Winters could not locate Fowler either in California or Washington, he served the Secretary of State under the nonresident motorist statute. Fowler moved for summary judgment, contending that she was a Washington resident at the time of and since the accident. The trial court denied the motion, ruling that an issue of material fact existed as to whether Winters exercised due diligence to find Fowler. We granted Fowler discretionary review and now affirm.
FACTS
Sarah Fowler and Samuel Winters had an automobile collision in Clark County. Fowler apparently lived in Vancouver at the time of the accident, but she gave Winters her California driver’s license for identification. She also gave Winters her insurance card, which included the telephone number of her insurance agent who was located in Cowlitz County. Winters made a photocopy of both records. The parties dispute whether Fowler also gave Winters a copy of the vehicle registration and whether Fowler told Winters that she lived nearby and gave him a local address. Neither party filed an accident report.
Winters began a lawsuit against Fowler and attempted to serve her with the summons and complaint at the California address listed on her driver’s license. Fowler did not live at the California address. Winters then searched local directories and county records, and he hired an investigator to search electronically for Fowler. Winters found no listings for Fowler in Washington. The investigator obtained Fowler’s credit report, which showed that she had recently used the same California address to apply for credit. Winters concluded that Fowler was a nonresident, and he served the Secretary of State under the nonresident motorist statute, RCW 46.64.040.
Fowler moved for summary judgment. She claimed that she was at all times a Washington resident, that Winters had not tried with due diligence to locate her, and that service was improper and untimely. She also moved to exclude any evidence related to her credit report as illegally obtained.
The trial court denied Fowler’s motions.
ANALYSIS
This court reviews appeals on motions for summary judgment de novo, treating all facts and inferences in the light most favorable to the non-moving party. Green v. A.P.C., 136 Wn.2d 87, 94, 960 P.2d 912
(1998). Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Fowler must show, taking the facts in the light most favorable to Winters, that there are no genuine issues of material fact and that as a matter of law, Winters’ service on the Secretary of State was inadequate or improper.
A. Credit Report
Fowler claims that the trial court erred by admitting evidence that Winters’ investigator obtained, perhaps illegally, from her credit report.
We review a decision to admit evidence for abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). The credit report showed that Fowler had recently applied for credit using her California address. Winters correctly noted that the credit report was not hearsay because it was not admitted to show the truth of the matter asserted or to show that Fowler did in fact live in California. ER 801(c). It was admitted only to show that Winters had a reasonable good faith belief that Fowler lived in California.
Fowler also contends that the credit report is inadmissible because state law prohibits dissemination of credit information. Chapter 19.182
RCW. Washington law limits the circumstances under which a consumer reporting agency may furnish credit reports.
RCW 19.182.020. But a credit agency may furnish a report to a person who `has a legitimate business need for the information in connection with a business transaction involving the consumer.’ RCW 19.182.020(1)(c)(v).
The statute imposes criminal penalties when a person “knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses[.]” RCW 19.182.130. No Washington cases have interpreted these statutes, but federal cases interpreting nearly identical federal statutes provide guidance.
One federal court found that a law firm, attorney, and company who acquired a person’s credit report to get an alternate address at which to serve him had a legitimate business need and did not violate the statute. Korotki v. Attorney Serv. Corp., 931 F. Supp. 1269 (D. Maryland 1996). The court’s decision relied on the plaintiff’s belief that he had a business relationship with the person whose credit report he obtained, and he was trying to collect a debt owed to him; these facts led the court to find a legitimate business need for the credit report. Korotki, 931 F. Supp. at 1277-78.
In another case, in which an ex-wife sued her ex-husband’s investigator for acquiring her credit report, the court required the wife to prove that the investigator had “willfully” violated the statute. Berman v. Parco, 986 F. Supp. 195, 199 (S.D.N.Y. 1997). The court noted that the statute “does not, by its plain terms, place any duty upon persons to refrain from requesting consumer reports from individuals for purposes not authorized by the [statute].” Berman, 986 F. Supp. at 200.
But another court rejected an attorney, law firm, and investigator’s attempt to claim a legitimate business need for the plaintiff’s credit report, even though the plaintiff, as a borrower, was involved in an underlying business transaction with the defendant, a mortgage broker Duncan v. Handmaker, 149 F.3d 424, 427 (6th Cir. 1998). The underlying loan was not the subject of the lawsuit; the plaintiff had sued the mortgage company for negligence. Duncan, 149 F.3d at 428. While a lawsuit involving the collection of a debt may give rise to a legitimate business need for a party’s credit report, trial preparation does not fall within the scope of the statute. Duncan, 149 F.3d at 427-28.
Winters may have had a legitimate business need to obtain Fowler’s credit report. He had filed a lawsuit against her and needed to serve her with a summons and complaint. But even if Winters did not have a legitimate business need, there is no evidence that he or his investigator obtained the report under false pretenses. A person acts under false pretenses when he knowingly and willfully obtains a consumer report for a purpose the statute does not authorize, and he does not tell the reporting agency his true motivation. Duncan, 149 F.3d at 426. Nothing in the record shows that Winters’ investigator willfully violated the statute or obtained the information under false pretenses.
Finally, the credit report itself was not offered into evidence. Instead, Winters’ investigator stated in his affidavit that he learned from the report that Fowler had recently used the California address. The investigator did not disclose any financial or personal information about Fowler. The trial court did not abuse its discretion by considering the investigator’s declaration about part of Fowler’s credit report.
B. Nonresident Motorist Statute
Under the nonresident motorist statute, a plaintiff may serve a person who was involved in a motor vehicle accident in the state, and who was a nonresident or left the state after the accident, by serving the Secretary of State and attempting with due diligence to serve the defendant personally. RCW 46.64.040. The statute applies “not only where plaintiff can conclusively establish that the defendant is a nonresident or resident who has departed the state, but also where there is a reasonable basis to conclude that this is the case.” Martin v. Meier, 111 Wn.2d 471, 479, 760 P.2d 925 (1988). The plaintiff may serve the Secretary of State when he “has a good faith belief that defendant has departed the state and [he] has with due diligence attempted to find and serve defendant.” Meier, 111 Wn.2d at 480. Due diligence requires that the plaintiff make “honest and reasonable efforts to locate the defendant,” but it does not require the plaintiff to use “all conceivable means” to find her. Meier, 111 Wn.2d at 482.
In Meier, the plaintiff tried to serve the defendant at a Washington address listed on the accident report. Meier, 111 Wn.2d at 473. He asked neighbors and defendant’s former university about defendant’s whereabouts. Neighbors told him the defendant had moved to California Meier, 111 Wn.2d at 474-75. He found no listing in telephone and police records. Meier, 111 Wn.2d at 475. The court found that his efforts constituted due diligence and that he had a reasonable good faith belief that defendant had left the state. Meier, 111 Wn.2d at 482-83. Accordingly, the court found service under the nonresident motorist statute appropriate. Meier, 111 Wn.2d at 483.
In Martin v. Triol, 121 Wn.2d 135, 847 P.2d 471 (1993), the plaintiff began looking for the defendants only five days before the service of process period expired. A process server could not locate the defendants, and neighbors did not know where the defendants were. Triol, 121 Wn.2d at 150. The plaintiff accordingly served the Secretary of State under the statute. Triol, 121 Wn.2d at 150. The court found that the statute applied because defendants had temporarily left the state on vacation, and plaintiff had searched for them with due diligence. Triol, 121 Wn.2d at 150-51. Similarly, in Carras v. Johnson, 77 Wn. App. 588, 594, 892 P.2d 780 (1995), plaintiff’s efforts, which consisted of hiring a professional process server and relying on the accident report for defendants’ addresses, “while certainly not exhaustive, were both honest and reasonable,” and satisfied the statute.
These cases contrast with Huff v. Budbill, 141 Wn.2d 1, 1 P.3d 1138
(2000), where the plaintiff was not entitled to serve the defendant under the nonresident motorist statute. In Huff, the plaintiff was unable to serve the defendant at his last known address and noticed that mail was piling up at the defendant’s home and phone messages went unreturned. The court stressed that the statute did not apply when the plaintiff simply could not find the defendant. Huff, 141 Wn.2d at 9. Instead, as in Meier, the plaintiff must have reasonable basis for his good faith belief that the defendant has left or never did reside in the state. Huff, 141 Wn.2d at 12. While Huff could possibly infer that Budbill had moved, it required a “quantum leap’ in logic’ to conclude in good faith that Budbill had left the state. Huff, 141 Wn.2d at 16.
Fowler relies on Huff. She contends that it was unreasonable for Winters to rely on the California license because it was older than the insurance card. She claims that Winters did not act diligently because he did not undertake other measures that could have revealed her Washington address. We disagree.
Huff had no information leading him to believe that the defendant may have moved out of state. Huff, 141 Wn.2d at 16. Conversely, as in Meier and Carras, Winters had information that Fowler had lived in California and that she still used that address. Winters searched telephone directories, public utility records, and assessor records in Clark County, but he found no listing for Fowler. Taking the facts in the light most favorable to Winters, Fowler did not tell him that she lived in Washington nor provide him with a Washington license. His investigator discovered that Fowler had recently used the same California address as that on her driver’s license.
In hindsight, Winters could have taken other measures to find Fowler, such as calling her insurance agent or searching Department of Licensing records. But the focus is on what Winters did, not on what he failed to do. Carras, 77 Wn. App. at 593. There is evidence that Winters had a good faith, reasonable belief that Fowler was not a Washington resident. And the evidence is sufficient to support a finding that he exercised due diligence to find her. Meier, 111 Wn.2d at 479-80. Thus, an issue of material fact exists as to whether Winters complied with the nonresident motorist statute. The trial court properly denied Fowler’s motion for summary judgment. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON and QUINN-BRINTNALL, JJ., concur.