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Sidis v. Brodie/Dohrmann Inc.9/5/1991
Review of these consolidated cases was granted on one issue only: whether, under RCW 4.16.170, service of process on one defendant tolls the statute of limitation as to unserved defendants. We hold it does.
The facts are not at issue. In 1984, Michael Sidis, a restaurant cook, was injured when a table-side, alcohol-burning stove exploded as he was refueling it. In 1986, he filed a personal injury action against Brodie/Dohrmann, the company which sold the stove to the restaurant; Spring, the Swiss manufacturer of the stove; and Cambridge, the importer. Timely service was made on Brodie/Dohrmann. Spring and Cambridge were brought into the action less than 3 years after the injury by means of a third party complaint filed against them by Brodie/Dohrmann, but were not served by Sidis during that period.
Sidis argued that service on Brodie/Dohrmann tolled the statute of limitation as to all defendants named in the complaint because RCW 4.16.170, the tolling statute, states: " he plaintiff shall cause one or more of the defendants to be served . . . within ninety days from the date of filing the complaint." The trial court granted summary judgment in favor of Brodie/Dohrmann on the issue of duty and in favor of Spring and Cambridge on the basis that service on Brodie/Dohrmann did not toll the statute of limitation against them, and therefore, they were not timely served. Sidis appealed. In Sidis v. Brodie/Dohrmann, Inc., 58 Wash. App. 665, 669, 794 P.2d 1309 (1990), the Court of Appeals decided the statutory language was ambiguous, stating:
The meaning of the "one or more of the defendants" language is obscured by the combination of singular and plural
forms in the sentence that is the focus of the instant appeal: "If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served . . .". The shift between the first and second clause makes the intended application of the provision to cases involving multiple defendants unclear. . . .
The court went on to affirm the summary judgment for Spring and Cambridge based on the running of the statute of limitation.
Lesta Clark's son was killed by Dexter Pinkman in a pedestrian/automobile accident. Clark timely filed a complaint for death of a child against Pinkman and the State of Washington. The State was served on the 90th day after filing, but Pinkman was not served until over a week later. The parties stipulated to the State's dismissal, but the trial court denied Pinkman's motion for dismissal. The Court of Appeals granted review and, in an unpublished opinion, dismissed the case against Pinkman based on the Sidis interpretation of RCW 4.16.170. See Clark v. Pinkman, noted at 59 Wash. App. 1002 (1990), review granted, 116 Wash. 2d 1001 (1991).
The statute in question states:
For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint. If the action is commenced by service on one or more of the defendants or by publication, the plaintiff shall file the summons and complaint within ninety days from the date of service. If following service, the complaint is not so filed, or following filing, service is not
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