Washington Statute of Limitations and Service

Personal injury cases are subject to a statute of limitations, and if the injured person does not bring a lawsuit prior to its expiration, he or she will be time-barred from doing so.  Washington car accident attorneys know that Washington law is a little more complicated than other states on this issue.  In Washington, the lawsuit is deemed commenced at the earlier of filing the complaint or serving a defendant with a summons.  Once one of these actions is achieved, the statute of limitations tolls for 90 days to allow the plaintiff to complete the other action.  If a defendant is not served within 90 days from the filing of the complaint, the action is deemed not to have commenced for the purposes of tolling the statute of limitations.  Likewise, if the plaintiff first served the defendant and does not file a complaint within 90 days, the lawsuit is deemed not to have commenced.  RCW 4.16.170.  Thus, in Washington, filing the complaint and serving a defendant are equally important in regard to the statute of limitations.  Even if the plaintiff files the complaint within the applicable period, the case may still be time-barred if he or she does not achieve service within 90 days of filing the complaint.

A Washington appeals court recently considered whether a lawsuit had been timely commenced when the defendant argued the plaintiff had only served an improper defendant within the 90-day window.  The plaintiff was involved in an automobile accident with the defendant driver.  He filed a lawsuit against the defendant driver and the Washington company he alleged was the defendant driver’s employer.  The plaintiff served the employer.  He subsequently amended his complaint to add a Georgia company, which he also alleged to be the defendant driver’s employer.

The plaintiff attempted to serve the defendant driver by mail and through the Secretary of State, pursuant to the nonresident motorist statute.  The defendant driver ultimately filed an answer, denying the paragraph that alleged the named entity was his employer.  The defendant driver then filed a motion to dismiss, arguing the claim was barred by the statute of limitations because the plaintiff had failed to serve any proper defendant before the expiration of the three-year statute of limitations or within the 90-day tolling period after he filed his complaint.  The defendant driver argued that his employer was actually an Indiana corporation that had never been named in the lawsuit or served.

The plaintiff argued that the motion to dismiss should be denied because he had served the Washington company within the tolling period. The superior court granted the defendant driver’s motion, finding that serving the wrong defendant did not make the case viable.  The plaintiff appealed.

Washington case law has held that a plaintiff cannot circumvent the statute of limitations by naming and serving an improper defendant.  Under Washington law, the action is deemed not to have been commenced if a proper defendant is not served within the 90 days.

The appeals court found that the trial court had treated the motion to dismiss as a motion for summary judgment, since the court had considered matters outside the pleading.  The trial court had considered the declaration by the plaintiff’s attorney and the exhibits.  The appeals court then considered whether there were any genuine issues of material fact and whether the defendant was entitled to judgment as a matter of law.  As the moving party, the defendant had the initial burden of showing there was no genuine issue of material fact, which he could accomplish by showing there was a lack of evidence to support the plaintiff’s case.

The defendant driver claimed the Indiana company was his employer, and since there was no evidence it had been served, he was entitled to summary judgment.  The burden then shifted to the plaintiff.  The attorney’s declaration supported the plaintiff’s claim that the Washington company was the defendant driver’s employer.  In the declaration, the attorney stated that he had learned the name of the employer from the defendant driver’s insurer, and he assumed it was the company in Washington, since that was where the accident happened.  He attached exhibits to the declaration, including the police report and the declaration of personal service on the Washington company.  The appeals court found this evidence was enough to raise a genuine issue of material fact.

Although the defendant driver’s counsel argued that the parties knew and agreed that the Washington company was not the defendant’s employer, the defendant did not present any admissible evidence supporting that argument.  The court cannot consider facts that are only presented in the attorney’s argument, so the defendant had not successfully addressed the issue of fact raised by the plaintiff.  The appeals court therefore reversed the dismissal because the defendant failed to show that there was no genuine issue of material fact.

It is important to note that the appeals court did not find that the plaintiff had commenced the action by serving an improper defendant.  It instead decided that the defendant had not shown an absence of a question of material fact in light of the evidence presented by the plaintiff.  The lesson here is that even simple factual assertions in a motion for summary judgment should be supported by evidence.

The Washington car accident attorneys at Blair & Kim, PLLC, have a thorough understanding of Washington statutes of limitations and the tolling provisions of RCW 4.16.170.  If you have been seriously injured by someone else’s negligence in an automobile accident, call us at (206) 622-6562 to discuss your case with one of our attorneys.

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