Summary
In Hansen v. Watson, 16 Wn. App. 891, 892-93, 559 P.2d 1375 (1977), Division One of this court stated that if filing and service are both accomplished within the time allowed by the statute of limitations, it is immaterial whether the plaintiff serves the defendant within 90 days after filing.
Summary of this case from Sheepskin v. YingOpinion
No. 1605-3.
February 16, 1977.
[1] Limitation of Actions — Civil Procedure — Commencement of Action — Service and Filing. RCW 4.16.170, which requires a summons and complaint to be filed within 90 days of service of process on a defendant, relates only to tolling a statute of limitation, and is inapplicable when both service and filing are accomplished within the limitation period.
Appeal from a judgment of the Superior Court for Spokane County, No. 221589, William J. Grant, J., entered May 29, 1975.
Robert A. Southwell and Malott Southwell, P.S., for appellant.
C.E. Huppin and Huppin, Ewing Anderson, P.S., for respondent.
Reversed.
Action for personal injuries. The plaintiff appeals from a summary judgment of dismissal.
The plaintiff appeals the dismissal of her personal injury claim. The court held the statute of limitations had expired because of her failure to file her complaint within 90 days of the service of the summons and complaint upon the defendant. RCW 4.16.170. We reverse.
"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 so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations."
The pertinent dates are:
December 7, 1971 Accident and injury. October 3, 1972 Defendant served with the summons and complaint. December 6, 1974 Original summons and complaint filed. May 8, 1975 Defendant served his answer on plaintiff alleging as an affirmative defense the statute of limitations and moved for summary judgment of dismissal based upon the running of the statute of limitations. May 26, 1975 Order granting summary judgment entered, dismissing plaintiff's complaint. [1] The statute of limitations for actions involving injury to the person requires that they be commenced within 3 years. RCW 4.16.080(2). This action was tentatively commenced October 3, 1972, with the service of the summons and complaint upon the defendant, CR 3(a), and fully commenced with the filing on December 6, 1974. Since both the service and the filing were accomplished before the statutory period of limitation had expired, i.e., within 3 years from the date of the injury, the issue of tolling that statutory period does not arise. RCW 4.16.170 is not applicable. Seamens v. Walgren, 82 Wn.2d 771, 776, 514 P.2d 166 (1973). Under these circumstances it is immaterial that the service and filing were not accomplished within 90 days of each other.Citizens Interested in the Transfusion of Yesteryear v. Board of Regents of Univ. of Washington, 86 Wn.2d 323, 329, 544 P.2d 740 (1976), is distinguishable upon its facts; the action was tentatively commenced when the complaint was filed, but the statute of limitation had expired without service upon the defendant. Consequently, the 90-day provision of RCW 4.16.170 was applicable. Cf. Fox v. Groff, 16 Wn. App. 893, 559 P.2d 1376 (1977).
Judgment reversed.
GREEN and McINTURFF, JJ., concur.
Petition for rehearing denied March 29, 1977.
Review denied by Supreme Court July 27, 1977.