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Lewis v. Combined Transport9/13/2005
Fred and Nancy Lewis (Lewis) appeal the dismissal of their personal injury action against Combined Transport, Inc. and its employee, Greg Johnson. The trial court dismissed Lewis's action with prejudice on grounds that the suit was barred by the three-year statute of limitation. Lewis argues that he timely served Combined Transport's Oregon agent under RCW 4.28.180 and, even if he did not, Johnson's concealing himself to avoid service tolled the statute of limitations.
Because Lewis did not obtain personal jurisdiction over either Combined Transport or Johnson before the statute of limitations expired, we affirm.
FACTS
Collision and Claim
On December 11, 2000, Fred Lewis was stopped at a red light in Cowlitz County, Washington, when a freight truck owned by Combined Transport and driven by Johnson rear-ended his car. Johnson left the scene. When he was stopped by police at a scale on Interstate 5, Johnson stated that he was unaware that he had struck Lewis's vehicle.
On December 9, 2003, Lewis filed a summons and complaint in the Cowlitz County Superior Court for damages sustained in the collision. The complaint named 'COMBINED TRANSPORT, a {sic} Oregon corporation doing business in Washington{;} GREG JOHNSON and JANE DOE JOHNSON, husband and wife and the marital community of them composed.' Clerk's Papers (CP) at
2. Service on Combined Transport
On December 29, 2003, Lewis filed an affidavit of service stating that on December 18, 2003, Arthur L. Padilla had personally served Combined Transport in Oregon by leaving a copy of the summons and complaint with its registered agent, Mike Card, at '5656 CRATER LAKE AVE, CENTRAL POINT OR 97502.' CP at 7. On January 16, 2004, Combined Transport answered Lewis's complaint and asserted affirmative defenses, including lack of jurisdiction and insufficient service of process. Lewis's attorney believed that service on Combined Transport's Oregon registered agent was proper, but a check with the Washington Secretary of State would have revealed that Combined Transport had a different registered agent for service of process in Washington. Although the statute of limitations did not expire until March 8, 2004, Lewis did not serve Combined Transport's Washington registered agent.
Service on Johnson
On March 31, 2004, 23 days after the statute of limitations had run, Lewis moved to serve Johnson by mail as an alternative to service by publication under CR4(d)(4). Lewis contended that the court should authorize alternative service because Johnson was avoiding service. In support of the motion, Lewis submitted an affidavit and a declaration from the process servers who had attempted to serve Johnson.
One process server, Bruce Samuelson, first attempted to serve Johnson on December 12, 2003, by going to the address listed in the police report. His affidavit goes on to state:
{I} was told by a . . . man that {Johnson} was not known at this address. On 12/23/03 . . . I went to 38308 Lakeshore Dr. Unit 6 Woodland, {Washington}. I talked to an older woman who said that {Johnson} was staying here for a short time about 3 weeks ago, but he is no longer there at this time. 1/04 - I ran through various websites and talked with the neighbors. I was told that . . . he may be living in Woodland. . . . On 2/3/04 I went to the {Lakeshore Drive address}. The same older {woman} that I had talked to previously said 'no such person has ever lived at this address{.}' I went to the Woodland police department and was told {the Lakeshore Drive address} was the address of record for {Johnson.} 02/06/04 I sent a letter addressed to {Johnson at that a
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