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Carlson v. Martin5/12/1999
Appeal from Circuit Court, Curry County.
Hugh C. Downer, Judge.
Argued and submitted July 28, 1998.
Summary judgment for defendant reversed; case remanded for entry of partial summary judgment for plaintiff and for further proceedings.
*Deits, C.J., vice, Riggs, P.J., resigned.
LINDER, J.
Plaintiff appeals the trial court's dismissal of her personal injury action based on inadequate service of process. The issue turns specifically on whether plaintiff was entitled to use substituted service on the Department of Transportation, Motor Vehicles Division (MVD), pursuant to ORCP 7 D(4)(a)(i). We conclude that plaintiff's service was adequate and reverse and remand for further proceedings.
The pertinent facts are not disputed. Plaintiff sustained personal injuries in an automobile accident that occurred in or near the small rural coastal community of Sixes, Oregon. Plaintiff brought this negligence action against the two individuals involved--defendant Matthew Martin, the driver of the other vehicle in the accident, and defendant Brenda Martin, the vehicle's registered owner. Plaintiff filed the complaint shortly before the two-year statute of limitations expired on the action and thereafter attempted to serve defendants within the 60-day time period permitted by ORS 12.020(2).
Plaintiff, who lives and works in Sixes, knew that defendants did not work in Sixes and had not been seen in that small community for some time. Nevertheless, her attorney attempted both personal and substituted service on defendants at the rural Sixes address listed on the accident report. The deputy sheriff who attempted the service was told by the current residents that defendants did not live there. The deputy returned the service to plaintiff's attorney, indicating that defendants had not been found and reporting that there were no phone listings or other local records for either defendant. By telephone, plaintiff's attorney contacted the MVD and learned that the agency's records showed defendants' address to be the same as the address listed on the accident report. Plaintiff's attorney did not attempt to contact the only local utility company in Sixes (the electric company) because he knew that it would not release customer information without a court subpoena.
Plaintiff's attorney next requested and received written confirmation from MVD that the Sixes address was the only address the agency had on file for defendants. After receiving that confirmation, plaintiff served defendants with summons and complaint by delivery to MVD. Plaintiff also mailed the necessary documents to defendants at their Sixes address, using certified mail with a request for a return receipt. The post office later returned the mailing to plaintiff, unopened, and marked as undeliverable and unable to be forwarded. The substituted MVD service was made within 60 days after plaintiff filed her complaint.
In their answer to the complaint, defendants asserted as an affirmative defense that plaintiff had failed to complete service within the time allowed by statute because plaintiff had not complied with ORCP 7 in resorting to MVD service. Defendants moved for summary judgment on that ground; plaintiff moved for partial summary judgment on the affirmative defense. On appeal, plaintiff assigns error to the trial court's grant of defendants' motion and to the denial of her own. Because there are no disputed factual issues, we review the rulings on the cross motions for summary judgment to determine which party is entitled to judgment as a matter of law. Stevens v. Bispham, 316 Or 221, 223, 851 P2d 556 (1993). See also Luyet v. Ehrnfelt, 118
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