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Roberts v. Laughlin8/22/2001
Argued and submitted July 2, 2001.
Affirmed.
This case presents yet another variation on the familiar problem of assessing the adequacy of service of summons and complaint within the period required by the statute of limitations. Plaintiff argues that the trial court erred in granting summary judgment to defendant on the grounds that plaintiff failed to comply with the provisions of ORCP 7 D 4, governing actions involving motor vehicles, and that plaintiff's collective service efforts did not satisfy ORCP 7 D(1), the "catch-all" service provision. We affirm.
We view the summary judgment record in the light most favorable to plaintiff, the nonmoving party. Gish v. Youngblood, 161 Or App 591, 594-95, 984 P2d 93, rev den 329 Or 527 (1999). On November 28, 1997, vehicles driven by plaintiff and defendant collided on Highway 99W near Newberg. At the time of the accident, defendant had a New Mexico driver's license. At the accident scene, defendant provided plaintiff and responding police officers with a Tumwater, Washington, apartment address as his residence. Defendant provided the same address to the Oregon Department of Transportation (ODOT) in an accident report he filed in approximately December 1997. At the accident scene, defendant's wife had also provided plaintiff with her business card, showing her work address and work phone number.
In January 1998, defendant moved from the Tumwater apartment to Federal Way, Washington. Defendant attested that he and his wife gave his forwarding address to the Tumwater apartment manager and also left a forwarding address with the postal service. In April 1999, he moved to West Linn, Oregon. Again, he stated that he and his wife gave their new address to the apartment manager in Federal Way and left a forwarding address with the postal service. Before August 1999, defendant obtained an Oregon driver's license and registered his vehicle with ODOT.
On August 2, 1999, plaintiff filed this personal injury action against defendant, alleging that defendant's negligence caused the accident. On August 9, plaintiff's process server received the summons and complaint for service on defendant at the address in Tumwater, Washington. The process server personally attempted to serve defendant at that Tumwater address, but he had already moved. On October 11, the process server attested that " fter due inquiry, and a diligent search, was unable to complete service" on defendant. Later, on March 28, 2000, the process server again attested that she had made "due inquiry" and "a diligent search," but was unable to complete service on defendant. She added that:
"I checked with the [apartment] Manager's Office. They stated that the defendant was a previous tenant, although they would not provide any forwarding information. I also spoke with a downstairs neighbor. She stated she had only just moved in and did not know any of her neighbors."
On September 20, 1999, plaintiff's attorney wrote to defendant's insurance claims representative, reporting that the attorney had tried unsuccessfully to serve defendant. The letter enclosed a copy of the summons and complaint. On September 22, plaintiff's attorney mailed copies of the summons and complaint to the Tumwater apartment address, using both certified mail and regular first-class mail. Both mailings were returned as "NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD."
In his affidavit opposing summary judgment, plaintiff's attorney explained his strategy as follows:
"2. I knew that the Oregon Department of Transportation would not have the current [address] for Defendant who had a New Mexico Drivers License and had provided a Wash
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