Summary
Painter v. Olney, 37 Wn. App. 424, 680 P.2d 1066 (1984).
Facts
Plaintiff Painter filed a claim arising from a motor vehicle collision against Defendants Olney and Kometz. The vehicle that struck Plaintiff was owned by Olney and driven by Kometz.
Painter’s attorney had a copy of the police traffic collision report that contained:
- Kometz’s full name and address (823 N.E. 190th St.)
- Kometz’s home phone number
- Kometz’s business number
- The name of Kometz’s employer (Olney)
- Olney’s full name and address.
For about 18 months after the accident, Kometz lived at the address contained in the report. She then moved to Kirkland but left a forwarding address with postal officials. At all times pertinent, her business telephone number remained the same. At all times pertinent, Defendant Olney lived at the address contained in the report.
The summons and complaint was taken by a process server to 823 – 190th St. According to the process server’s affidavit of nonservice, the server was told by the people living there that Olney and Kometz had moved about two years ago, and they had no clues as to where they may be. In fact, Kometz and Olney never lived together at this or any other address, and the attempt was made at a different, though similar address (190th, not N.E. 190th).
Painter’s attorney then prepared an affidavit and motion for service of summons by publication, stating that “personal service cannot be made on defendants within this state to the affiant’s best knowledge, information and belief”.
Judicial History
Superior court upheld the validity of the service of process by publication. The Court of Appeals held that Plaintiffs failed to make a sufficient effort to locate the defendants, and rendered the service by publication inappropriate. The action was dismissed for lack of jurisdiction.
Specific Issue
Is strict compliance required for statutes authorizing service by means other than personal service? Yes
Holding
First and basic to any litigation is jurisdiction. First and basic to jurisdiction is service of process. Statutes authorizing service by means other than personal service require strict compliance. An honest and reasonable effort should be made to find the defendant prior to alternative service of process.
Reasoning
The plaintiff, in having an agent call only at a house where it appears that neither defendant had ever lived and then abandoning the search, despite possessing additional information regarding the defendant’s whereabouts, did not make the honest and reasonable effort necessary to allow for service by publication.
C4PSE Comment
The record does not reflect exactly what the plaintiff’s attorney provided to the process server. However, the server either knew, or should have known, that the case was the result of an automobile accident. In such a situation it is reasonable for a server to ask the client for a copy of the accident report. Had this occurred the outcome of this case would most likely have been much different than it turned out.