In cases arising out of motor vehicle accidents, substituted service may be made upon the Secretary of State if the plaintiff is unable to locate the defendant for personal service despite the exercise of due diligence. RCW 46.64.040. The statute is based upon the theory that in return for using Washington's highways, motorists consent to substitute service upon the Secretary of State.

The statute is designed to provide a remedy for plaintiffs who are injured by motorists who cannot be located for purposes of service of process in the usual manner. From the plaintiff’s point of view, service on the Secretary of State satisfies the requirement of service of process. The statute of limitation is tolled upon service on the Secretary of State, and the case proceeds.

The statute is relatively straightforward, but defendants who are served in this manner and later learn of the action occasionally challenge service on the basis that plaintiff had not used due diligence to locate the defendant before resorting to substitute service.

In a recent case arising out an accident in King County, P encountered some difficulty in locating D for service of process. D had given an address on an accident report, but P said D could not be found at that address. P also hired a private investigator, who searched Department of Licensing records and the King County Assessor’s records. P also hired a commercial skip-trace service.

None of P’s efforts led to service upon D. P then served the summons and complaint upon the Secretary of State pursuant to RCW 46.64.040. Shortly thereafter, the Secretary of State located D and notified D of the action.

D then served and filed an answer, which included the affirmative defense of ineffective service. During the next three months, P and D engaged in discovery, including interrogatories, requests for production, and a request for a medical exam. D also filed a request for a jury trial.

D then moved for a dismissal based upon ineffective service, arguing that P’s efforts to locate him were a façade. According to D, he lived at the address that he gave on the accident report, and had lived there for ten years. D said he had no idea P was trying to locate him for service of process, and that he (D) certainly was not attempting to evade service. In short, D said, P could scarcely have been said to use due diligence in attempting to locate him for service of process.

The Court of Appeals sided with D, holding that P had not used due diligence to locate D, and thus service on the Secretary of State was ineffective. The appellate court noted that despite all of P’s claimed efforts to locate D’s address, the trial court determined that P actually attempted to serve D at the address only twice. Two attempts, the court said, does not constitute due diligence.

As a backup argument, P argued that D waived any objection to service of process (and thus personal jurisdiction) by engaging in discovery and other pretrial proceedings. The Court of Appeals acknowledged that D had a point – that in several reported cases a defendant was held to have waived any objection to personal jurisdiction by engaging in discovery and other pretrial proceedings.

The court, however, said that the discovery and other pretrial proceedings in the present case spanned a period of only three months, and that much of the discovery was directed to the issue of service of process. Further, the court said, D made no effort to conceal his intent to later move to dismiss, nor did D mislead P in any similar way.

All things considered, the court said, D’s brief excursion into discovery did not amount to a waiver of D’s right to file a motion to dismiss for lack of personal jurisdiction. Harvey v. Obermeit, 163 Wn.App. 311, 261 P.3d 671 (2011) (Div.1, Spearman, J.).

Editor’s note – The court’s opinion in Harvey is a virtual treatise on the issue of whether a defendant waives the right to challenge personal jurisdiction by engaging in discovery or other pretrial proceedings. Nearly all Washington cases on point are analyzed in detail. The court’s opinion should provide an excellent starting point for research in this area of the law.

The articles reprinted here are excerpted from Karl Tegland’s monthly newsletter, Litigation Today. Each issue of Litigation Today includes Mr. Tegland’s commentary and practice tips in the areas of evidence, civil procedure, appellate procedure, and the right to confrontation. Each issue also includes an in-depth essay on a selected topic, complete coverage of all rule amendments, and citations to leading law review articles from the preceding month.

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