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Blankenship v. Kaldor11/7/2002
As modified November 12, 2002.
DIXIE BLANKENSHIP, A SINGLE WOMAN, APPELLANT,
v.
JULIANNE KALDOR AND JOHN DOE KALDOR, AND THE MARITAL COMMUNITY THEREOF, RESPONDENT.
Appeal from Superior Court of Benton County Docket No: 002016295 Judgment or order under review Date filed: 01/22/2002 Judge signing: Hon. Carolyn A. Brown
Counsel for Appellant(s) Simeon Osborn The Osborn Law Firm 2125 5th Ave Seattle, WA 98115; Susan MacHler The Osborn Law Firm 2125 5th Ave Seattle, WA 98115
Counsel for Respondent(s) Robert G. Schultz Leavy Schultz Davis & Fearing PS 2415 W Falls Ave Kennewick, WA 99336
The opinion of the court was delivered by: Brown, C.J.
Concurring: John A. Schultheis, Frank L. Kurtz
PUBLISHED OPINION
After the statute of limitations had run, the trial court summarily dismissed Dixie Blankenship's personal injury action against Julianne Kaldor and John Doe Kaldor for insufficient service of process. Although we agree the service was defective, under these facts, we conclude Ms. Kaldor waived the insufficiency. Accordingly, we reverse.
FACTS
On September 6, 1997, Ms. Blankenship and Ms. Kaldor were in a car accident. At the time, Ms. Kaldor was a minor and lived primarily with her mother. After living primarily with her father for about two years, on August 10, 2000, Ms. Kaldor moved to Portland. She maintained a checking account at a Richland credit union with her father's address on the checks.
On September 1, 2000, Ms. Blankenship filed a personal injury complaint against Ms. Kaldor. On that same day, a process server attempted to serve Ms. Kaldor at her mother's house. The process server was told Ms. Kaldor 'no longer was in town but was in Portland, Oregon.' Clerks Papers (CP) at 20. Her mother called Ms. Kaldor's father, Reed Kaldor, and made arrangements for the process server to bring the summons to his home the next day. Mr. Kaldor told the process server Ms. Kaldor got mail at his house and he should be seeing her soon. The process server left the summons with Mr. Kaldor. According to the process server Mr. Kaldor indicated 'he would turn these {the process} into his insurance company' and that, 'this should be no problem his insurance would take care of it.' CP at 20. Ms. Kaldor was an insured under her father's insurance policy. The next business day, Mr. Kaldor mailed a copy of the summons to Ms. Kaldor in Portland and gave the original to his insurance agent. On September 8, 2000, Ms. Kaldor's attorney, retained by the insurance company, filed a notice of appearance, reserving defenses, including service of process.
Instead of answering the complaint, Ms. Kaldor's attorney sent interrogatories and requests for production, without specifically inquiring about service. Defense counsel also deposed Ms. Blankenship and photographed her residence.
Approximately nine months after filing her complaint, Ms. Blankenship first informally asked for an answer, then, when unsuccessful, formally sought an order of default. Ms. Kaldor answered the complaint on December 2, 2001, pleading the affirmative defenses of insufficiency of service of process and statute of limitation. Ms. Kaldor prevailed on those issues at summary judgment. Ms. Blankenship appealed.
ANALYSIS
A. Insufficiency of Service
The issue is whether the trial court erred in granting summary judgment after determining Ms. Kaldor was improperly served under either RCW 4.28.28(15) or (16), and rejecting Ms. Blank
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