_ Friir E:1)
Ua:17- OF APPEALS DIV I
STATE OF WASHINGTON
2018 HAY 29 AMIO: 12
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
ELIZABETH CITO, ) No. 75393-2-1
) Consolidated with No. 76492-6-1
Appellant, )
v.
) PUBLISHED OPINION
JENNIFER K. RIOS, and JOHN DOE )
RIOS, individually and as the marital )
community composed thereof,
Respondents. ) FILED: May 29, 2018
SCHINDLER, J. — Under the plain and unambiguous language of RCW 46.64.040,
where a resident is involved in a motor vehicle collision and "thereafter at any time
within the following three years cannot, after a due and diligent search, be found," the
secretary of state shall be appointed to accept service of process. Under RCW
46.64.040, service of process on the secretary of state has the same force and effect as
personal service. Elizabeth Cito filed a personal injury lawsuit against Jennifer K. Rios
for damages from a rear-end collision. The court dismissed the lawsuit on the grounds
that Rios was not properly served under RCW 46.64.040. The undisputed record
establishes that despite"repeated attempts to serve Rios, she avoided and refused to
accept service of process. Because the record establishes that after a due and diligent
effort to serve Rios, she could not be found for purposes of service of process, we hold
No. 75393-2-1 (Consol. with No. 76492-6-1)/2
RCW 46.64.040 authorized service of process on the secretary of state. We reverse
and remand for trial.
Car Accident
The facts are undisputed.1 On September 28, 2012, Elizabeth Cito was driving
to work in her 2008 Subaru, traveling eastbound on the West Seattle Bridge. As Cito
slowed to merge onto the Interstate 5 off-ramp, a Honda Civic rear-ended her car. The
"Police Traffic Collision Report" identifies the driver of the Honda Civic as Jennifer K.
Rios. The Police Traffic Collision Report states her address is 8817 25th Place
Northeast, Seattle, Washington 98115. The police cited Rios for "fflollowing too close."
The collision report states that when Cito "slowed and stopped for traffic," Rios rear-
ended her car. The report notes both Cito and Rios "complained of neck pain" and the
cars were towed.
Personal Injury Lawsuit
Cito's attorney was in contact with the GEICO claims adjuster for Rios over the
course of the next two years. On September 23, 2015, the attorney notified the claims
adjuster that Cito planned to file a lawsuit. The attorney said, "I called him so that he
could notify his insured, so that she would not be alarmed when someone knocked on
her door to serve papers. The claims adjustor. .. requested that 1 fax him a copy of the
complaint once it was filed."
On September 25, 2015, Cito filed a personal injury complaint for damages
against Rios in King County Superior Court. On September 28, Cito's attorney faxed a
copy of the summons and complaint to the GEICO claims adjuster.
I We treat undisputed facts as verities on appeal. Rush v. Blackburn, 190 Wn. App. 945, 956,
361 P.3d 217(2015).
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On September 30, an attorney filed a notice of appearance on behalf of Rios.
The notice of appearance requests that "all further pleadings, except service of process,
be forwarded" to the attorney.
Attempts to Serve Rios
On September 30, 2015, an ABC Legal Messenger(ABC) process server
attempted to serve Rios at the Seattle address in the Police Traffic Collision Report with
the summons, the personal injury complaint, and the order setting civil case schedule.
The process server learned Rios no longer lived at that address.
After conducting a search of public records, Cito's attorney located an address
for Rios at 15704 80th Street East, Puyallup, Washington. On October 2, an ABC
process server attempted to serve Rios at the Puyallup address. The current occupant
told the process server that Rios lived at that address only temporarily and she did not
know her new address.
On October 14, Cito's attorney sent an e-mail to Rios's attorney stating, "[W]e
have not yet served your client, as she has moved from her previous address. We will
be using ABC investigation to locate and serve her." Cito's attorney asked,"Please let
me know if you are able to accept service for her or if you have obtained her permission
to share her address." The attorney responded, "Let me know when you have service."
ABC conducted "a full investigation to locate Ms. Rios' current address." ABC
located an address for Rios at an apartment complex in Des Moines-2701 South 224th
Street, apartment H304. On October 14, a process server attempted service at the Des
Moines address at 4:30 p.m. Although no one answered the door, the ABC process
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server heard "movement inside."2 The process server left several telephone messages.
After "neighbors confirmed" that Rios lived in apartment H304, the process server
waited in the parking lot. Approximately a half-hour later, the process server tried to
serve Rios with the pleadings. Rios "refused to accept" service.3
The ABC process server attempted to serve Rios again the next day on October
15. The apartment manager confirmed Rios lived in apartment H304. The woman in
apartment H304 refused to open the door and accept service or identify herself. The
process server left a number of telephone messages. Rios did not respond.
10/15/2015 2:32 PM: Per JANE DOE, WHO REFUSED TO GIVE NAME,
RESIDENT, a female contact. Occupant is believed to be subject by
server. Neighbors and management confirm that provided address is
good for subject. Occupant refuses to open doors to server and accept
documents. Occupant spoke from inside of apartment and would not
make herself visually known.... Multiple messages have been left on
provided phone number.
ABC suggested Cito "[forward to sheriff's office to complete process of service."
A King County deputy sheriff tried to serve Rios at the Des Moines address on
October 28. When there was "[n]o answer," he left his card. The deputy left voice
messages and sent text messages on October 28, 29, and 30. Rios did not respond.
On November 2, the deputy went to the apartment and left his card. The deputy
returned on November 9 but there was "[n]o response at door."
2 Boldface omitted throughout opinion.
3 The "Declaration of Non-Service" states, in pertinent part:
10/14/2015 4:30 PM: No answer at door, noise inside, movement inside and lights on
inside. Several messages were left on subject's phone. Process server stayed in
parking lot for a short duration of time after neighbors confirmed that subject has been
living at provided address for 2 months now. Server tried to obtain contact with subject at
1700 hours and subject refused to accept documents.
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On November 14, ABC made one last attempt to serve Rios at the Des Moines
address with the summons, personal injury complaint, and order setting civil case
schedule. After Rios "absolutely refuse[d] to accept legal documents," the process
server returned with the apartment manager and tried a second time to serve Rios. A
woman from inside the apartment spoke to the process server but did not open the
door.
Service on the Secretary of State
On December 3, Cito filed a "Notice of Service on the Secretary of State" and a
"Declaration of Compliance." The Declaration of Compliance describes the numerous
unsuccessful attempts to personally serve Rios.
1 have with due diligence determined that the defendant cannot be served.
. . . On December 3, 2015, this office sent a copy of the Summons,
Complaint, Plaintiff's Declaration of Compliance, Plaintiff Counsel's
Declaration of Compliance, the Case Schedule, and the Notice of Service
to the Secretary of State, by Registered Mail with Return Receipt
Requested to Defendant Jennifer Rios at 2701 S. 224th St., Apt. H304,
Des Moines, WA 98199.
Cito sent a copy of the summons, complaint, case schedule, notice of service on
the secretary of state, and declaration of compliance by registered mail to Rios at the
Des Moines address. On December 7, ABC filed a "Declaration of Service of Letter;
$50 Check Made Payable to the Secretary of State; Plaintiffns Declaration of
Compliance; Plaintiff Counsel's Declaration of Compliance;[2 Sets]Summons;[2 Sets]
Complaint for Personal Injuries;[2 Sets] Order Setting Civil Case Schedule."
"First alteration added.
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On January 11, 2016, Rios filed an answer to the complaint. Rios asserted a
number of affirmative defenses, including improper service of process and lack of
personal jurisdiction.
Motion to Dismiss and May 20, 2016 Order
Rios filed a motion to dismiss for improper service of process and lack of
personal jurisdiction. Citing Huff v. Budbill, 141 Wn.2d 1, 14, 1 P.3d 1138(2000), Rios
argued a plaintiff is authorized to serve the secretary of state "only if(1)the defendant
has departed the state, or (2) the plaintiff has a good faith belief the defendant has
departed and has exercised due diligence in attempting to locate the defendant." Rios
filed a declaration in support of the motion to dismiss. Rios listed several previous
addresses, including the address in the Police Traffic Collision Report. Rios states, "I
live in the State of Washington and have lived at the following Washington address
since June 11, 2015: 2701 S. 224th Street, Apt. H304, Des Moines, WA 98198." Rios
asserted that because she has lived at the Des Moines address since 2015, service
was improper and the lawsuit was barred by the three-year statute of limitations.
In response to the motion to dismiss, Cito pointed out that the legislature
amended the statute after the Washington Supreme Court decision in Huff in 2000. In
2003, the legislature deleted the language "departs from this state." LAWS OF 2003, ch.
223,§ 1. The legislature amended the statute to state that if within three years following
the collision the resident motorist "cannot, after a due and diligent search, be found in
this state," the motorist "appoints the secretary of state" to accept service of process.
LAWS OF 2003, ch. 223,§ 1.5 Cito argued the statute authorized service on the
5 Some emphasis added.
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secretary of state because after a due and diligent search and repeated attempts at
service, Rios could not be "found" for purposes of service of process.
The court requested additional briefing on the meaning of the word "found."
Before Cito filed her supplemental response brief, the court granted the motion to
dismiss. On May 20, 2016, the court dismissed the lawsuit with prejudice.
Motion to Vacate and January 23, 2017 Order of Dismissal
On May 31, 2016, Cito filed a CR 60(b)(1) motion to vacate the May 20, 2016
order of dismissal in superior court. The case was transferred to a different superior
court judge. On June 20, Cito filed a notice of appeal of the May 20, 2016 order of
dismissal. On January 12, the court granted Cito's CR 60 motion to vacate the May 20,
2016 order.
The court held a hearing on the motion to dismiss and considered the
supplemental briefs. In her supplemental brief, Rios argued the language "cannot. . .
be found"6 means "a plaintiff is unable to locate a defendant's address." Rios claimed
service on the secretary of state was improper because Cito "had actual knowledge" of
her address. In her supplemental brief in opposition to the motion to dismiss, Cito
argued that as amended,"found" as used in RCW 46.64.040 means that a defendant
"cannot. . . be found" if the defendant is intentionally avoiding service and cannot be
served.
The court granted the motion to dismiss. The January 23, 2017 order states, in
pertinent part:
[T]he Court concludes that the Defendant was not properly served with the
summons and complaint.
6 RCW 46.64.040.
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Service through the Secretary of State pursuant to RCW 46.64.040
was not appropriate in this case because [Cito]'s process server in fact
"found"[Rios] at her last known Washington address. The process
server's affidavit states that the server actually spoke to a person inside
the home whom he believed to be [Rios] and the neighbors confirmed she
lived in this location. Under these unique facts,[Cito]found [Rios] in-state
and substitute service through the Secretary of State was not permissible.
Cito appealed the January 23, 2017 order granting the motion to dismiss. We
consolidated the appeal of the January 23, 2017 order with the previous appeal of the
May 20, 2016 order dismissing the lawsuit. Because the trial court vacated the May 20,
2016 order of dismissal, we address only the order of dismissal entered on January 23,
2017.
RCW 46.64.040
Cito contends the court erred in dismissing her personal injury complaint on the
grounds that she did not properly serve Rios as authorized by RCW 46.64.040. We
review de novo whether service of process is proper. Heinzig v. Seok Hwang, 189 Wn.
App. 304, 310, 354 P.3d 943(2015).
RCW 46.64.040 states, in pertinent part:
The acceptance by a nonresident of the rights and privileges conferred by
law in the use of the public highways of this state, as evidenced by his or
her operation of a vehicle thereon, or the operation thereon of his or her
vehicle with his or her consent, express or implied, shall be deemed
equivalent to and construed to be an appointment by such nonresident of
the secretary of state of the state of Washington to be his or her true and
lawful attorney upon whom may be served all lawful summons and
processes against him or her growing out of any accident, collision, or
liability in which such nonresident may be involved while operating a
vehicle upon the public highways, or while his or her vehicle is being
operated thereon with his or her consent, express or implied, and such
operation and acceptance shall be a signification of the nonresident's
agreement that any summons or process against him or her which is so
served shall be of the same legal force and validity as if served on the
nonresident personally within the state of Washington. Likewise each
resident of this state who, while operating a motor vehicle on the public
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highways of this state, is involved in any accident, collision, or liability and
thereafter at any time within the following three years cannot, after a due
and diligent search, be found in this state appoints the secretary of state of
the state of Washington as his or her lawful attorney for service of
summons as provided in this section for nonresidents. Service of such
summons or process shall be made by leaving two copies thereof with a
fee established by the secretary of state by rule with the secretary of state
of the state of Washington, or at the secretary of state's office, and such
service shall be sufficient and valid personal service upon said resident or
nonresident: PROVIDED, That notice of such service and a copy of the
summons or process is forthwith sent by registered mail with return receipt
requested, by plaintiff to the defendant at the last known address of the
said defendant, and the plaintiffs affidavit of compliance herewith are
appended to the process, together with the affidavit of the plaintiffs
attorney that the attorney has with due diligence attempted to serve
personal process upon the defendant at all addresses known to him or her
of defendant and further listing in his or her affidavit the addresses at
which he or she attempted to have process served. However, if process is
forwarded by registered mail and defendant's endorsed receipt is received
and entered as a part of the return of process then the foregoing affidavit
of plaintiffs attorney need only show that the defendant received personal
delivery by mail.171
The purpose of RCW 46.64.040 is clear. In exchange for the privilege of
operating a motor vehicle on the public highways of Washington, motorists consent to
service of process on the secretary of state. RCW 46.64.040. Service on the secretary
of state is"'"a valid exercise of the police power based upon the right of the State to
regulate the use of its highways for their protection, and the protection of persons and
property within the state."'" Martin v. Meier, 111 Wn.2d 471, 476, 760 P.2d 925(1988)
(quoting Tellier v. Edwards, 56 Wn.2d 652,654, 354 P.2d 925(1960)(quoting Ogdon v.
Gianakos, 415 III. 591, 597, 114 N.E.2d 686 (1953))). Service on the secretary of state
and the statutory procedure to mail notice to the defendant's last known address after
due diligence in attempting to personally serve the defendant satisfies due process
7 Emphasis added.
9
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requirements. Martin, 111 Wn.2d at 478 (citing Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950)).
The dispositive question in this appeal is the meaning of the statutory language
that authorizes service on the secretary of state where a resident involved in an
automobile collision cannot "be found in this state." RCW 46.64.040. RCW 46.64.040
states that where a resident is involved in a collision and "after a due and diligent
search" within the following three years the motorist cannot "be found in this state," the
motorist appoints the secretary of state "as his or her lawful attorney for service."
Statutory interpretation is a question of law that we review de novo. Dep't of
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4(2002). Our objective is
to ascertain and give effect to legislative intent. Campbell & Gwinn, 146 Wn.2d at 9-10.
We begin with the text and the plain meaning of the statute as the expression of
the intent of the legislature. Bostain v. Food Express, Inc., 159 Wn.2d 700, 708, 153
P.3d 846(2007); City of Spokane v. Spokane County, 158 Wn.2d 661, 673, 146 P.3d
893(2006); Campbell & Gwinn, 146 Wn.2d at 9-10. We discern plain meaning from
"the plain language enacted by the legislature, considering the text of the provision in
question, the context of the statute in which the provision is found, related provisions,
amendments to the provision, and the statutory scheme as a whole." Columbia
Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 432, 395 P.3d 1031 (2017). If
the plain language of the statute is subject to only one interpretation, our inquiry is at an
end. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283
(2010).
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The undisputed record establishes Cito exercised due diligence to personally
serve Rios with the summons, the personal injury complaint, and the case schedule.
See Martin, 111 Wn.2d at 482(due diligence requires the plaintiff to make "honest and
reasonable efforts to locate the defendant").
The parties dispute the meaning of the word "found" as used in RCW 46.64.040.
Under the well established statutory construction principle of noscitur a sociis, a single
word in a statute is not to be read in isolation. Jongeward v. BNSF Ry. Co., 174 Wn.2d
586, 601, 278 P.3d 157(2012). Instead, the meaning of a word is indicated or
controlled by other associated words. Jongeward, 174 Wn.2d at 601. When
interpreting a statutory term, we must take into consideration the meaning from the
statutory context. Jongeward, 174 Wn.2d at 601. Another well settled principle of
statutory construction is that we must construe and interpret a statute to give effect to all
the language used and avoid a construction that would render a portion of a statute
meaningless or superfluous. Jongeward, 174 Wn.2d at 601; Davis v. Dep't of
Licensing, 137 Wn.2d 957, 963, 977 P.2d 554 (1999); Ford Motor Co. v. City of Seattle,
160 Wn.2d 32, 41, 156 P.3d 185 (2007). Ultimately, in resolving the meaning of a
statutory term, we adopt the interpretation that best advances the legislative purpose.
Citizens Alliance for Prop. Rights Legal Fund v. San Juan County, 184 Wn.2d 428, 437,
359 P.3d 753(2015).
The plain and unambiguous language of the statute states that where a resident,
while operating a motor vehicle on the public highways of this state, is
involved in any accident, collision, or liability and thereafter at any time
within the following three years cannot, after a due and diligent search, be
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found in this state appoints the secretary of state of the state of
Washington as his or her lawful attorney for service of summons.
RCW 46.64.040. In context, the word "found" immediately precedes the phrase
"appoints the secretary of state of the state of Washington as his or her lawful attorney
for service of summons." RCW 46.64.040. We hold the word "found" as used in RCW
46.64.040 means "found" for purposes of service of process.9
Legislative history supports our holding. When originally enacted in 1937, RCW
46.64.040 authorized service on the secretary of state for only nonresident motorists.
LAW OF 1937, ch. 189,§ 129. In 1957, the legislature amended the statute to authorize
service on the secretary of state for a "resident of this state who," within three years of
the motor vehicle collision, "departs from this state." LAWS OF 1957, ch. 75,§ 1.9
Former RCW 46.64.040 (1957) stated, in pertinent part:
[E]ach resident of this state who, while operating a motor vehicle on the
public highways of this state, is involved in any accident, collision or
liability and thereafter within three years departs from this state appoints
the secretary of state of the state of Washington as his lawful attorney for
service of summons as provided in this section for nonresidents.
In Huff, the Washington Supreme Court held the phrase "departs from this state"
is not synonymous with the phrase "cannot be found in this state." Huff, 141 Wn.2d at
11. Following the decision in Huff, the legislature amended RCW 46.64.040 as passed
by the House Judiciary Committee. LAWS OF 2003, ch. 223,§ 1; H.B. 1226, 58th Leg.,
8 We also note that under the statute that allows for service by publication, RCW 4.28.100(2), a
plaintiff must show the defendant cannot be found. To show a defendant cannot be found, the plaintiff
must demonstrate that he or she "made reasonably diligent efforts to personally serve the defendant."
Boes v. Bisiar, 122 Wn. App. 569, 574, 94 P.3d 975(2004)(emphasis added). In Harvey v. Obermeit,
163 Wn. App. 311, 322, 261 P.3d 671 (2011), we state that "[w]hile RCW 46.64.040 uses the word
'found,'. .. the due diligence inquiry focuses on a plaintiffs efforts to physically find and serve the
defendant." (Emphasis in original.)
9 Emphasis added.
12
No. 75393-2-1 (Consol. with No. 76492-6-1)/13
Reg. Sess.(Wash. 2003). The legislature deleted the language "departs from this
state" and changed the language to "cannot, after a due and diligent search, be found in
this state." LAWS OF 2003, ch. 223,§ 1; see In re Pers. Restraint of Quackenbush, 142
Wn.2d 928, 936, 16 P.3d 638(2001)(when amending a statute, the legislature is
presumed to know how the courts have interpreted and applied the statute); see also
WR Enters., Inc. v. Dep't of Labor & Indus., 147 Wn.2d 213, 222, 53 P.3d 504(2002)
(when the legislature makes a material change in the wording of a statute the court
presumes a change in legislative purpose).
The House Judiciary Committee cites the Washington Supreme Court decision
that "a person who cannot be found in the state is not the equivalent of the statute's
requirement that the resident 'departs from this state'"as the reason for the
amendment. H.B. REP. ON H.B. 1226, at 2, 58th Leg., Reg. Sess.(Wash. 2003). The
report proposes changing the language as follows:
A state resident involved in a motor vehicle accident while operating a
motor vehicle on a state public highway may be served by substitute
service of process on the Secretary of State if the resident cannot be
found in Washington, after a due and diligent search, at any time within
the three years following the event.
H.B. REP. ON H.B. 1226, at 2. The report describes the purpose of the amendment:
[T]o provide a method for serving motorists who cannot be found in the
state. It will apply only when the process server has diligently attempted
through all available methods to serve process and is unable to do so.
The only beneficiaries of the current system are those people who
intentionally and successfully avoid process.
H.B. REP. ON H.B. 1226, at 2.
Because the undisputed record establishes that despite due diligence and
repeated efforts to serve Rios, she could not be found for purposes of service of
13
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process, service on the secretary of state under RCW 46.64.040 was proper. We
reverse dismissal of the lawsuit and remand.
WE CONCUR:
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