Opinion
No. 51766-0-I.
Filed: May 24, 2004.
Appeal from Superior Court of King County. Docket No: 00-2-32162-7. Judgment or order under review. Date filed: 01/03/2003. Judge signing: Hon. Gregory P Canova.
Counsel for Appellant(s), Robert Wallace Fetty, Attorney at Law, 20612 NE Woodinville Duvall Rd, Woodinville, WA 98072-7746.
Counsel for Respondent(s), Marilee C. Erickson, Reed McClure, 601 Union St. Ste 4901, Seattle, WA 98101-3920.
Van Trinh and Denny Watson were in a car accident. Trinh sued Watson for negligence and attempted to personally serve him. Trinh's repeated attempts to personally serve Watson failed and so she served Washington's Secretary of State under the nonresident motorist statute. The trial court found that Trinh's service under the nonresident motorist statute was defective because the facts of the case did not support a good faith belief that Watson had left the state. The trial court dismissed the case. We affirm.
FACTS
On January 1, 1998, Van Trinh and Denny Watson were in a car accident. Trinh had three years in which to file a lawsuit against Watson. RCW 4.16.080(2). Trinh filed a complaint against Watson on December 19, 2000. Under the statute's tolling provisions, Trinh had until March 20, 2001 to serve Watson. RCW 4.16.170; CR 3(b). Trinh unsuccessfully attempted to serve Watson at numerous addresses. She left a copy of the service of process with C. Johnson at an address Watson used for mail, 9708-32nd Avenue Southwest, though she knew this was not Watson's usual place of residence. Trinh hired Kearns Investigations (Kearns) to look for Watson, but they also failed to find him. Kearns found neither vehicle registration nor any record that Watson owned property in Washington. Kearns did learn that Watson had a criminal record.
Watson was in Washington State at the time Trinh and Kearns searched for him. He was incarcerated in King County for a substantial part of the year 2000. He was released in September 2000 and sent to the Alvest House Northwest for a few months, and then to a private halfway house in Seattle where he stayed until his death in April 2001.
Trinh did not file an amended complaint naming Watson's estate and did not serve the estate's personal representative. The trial court found that service by the nonresident motorist statute was insufficient and granted the Watson estate's motion for summary judgment. Nothing in the record indicates service by publication was sought.
ANALYSIS I. Standard of Review
The court's review of summary judgment orders is de novo. Hadley v. Maxwell, 144 Wn.2d 306, 310, 27 P.3d 600 (2001). When reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court. "The reviewing court considers the facts and all reasonable inferences from [the] facts in the light most favorable to the nonmoving party." Right-Price Recreation, L.L.C v. Connells Prairie Community Council, 146 Wn.2d 370, 381, 46 P.3d 789 (2002). Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. CR 56(c). "'The motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion.'" Trimble v. Washington State Univ., 140 Wn.2d 88, 93, 993 P.2d 259 (2000) (quoting Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993)). "However, bare assertions that a genuine material issue exists will not defeat a summary judgment issue in the absence of actual evidence." Trimble, 140 Wn.2d at 93.
II. The Nonresident Motorist Statute
Trinh argues that she had a good faith belief that Watson left the state such that she effectively served process under the nonresident motorist statute. The nonresident motorists' statute allows substitution service on the Washington Secretary of State, even for Washington residents, providing the plaintiff in an action has "a reasonable basis for believing that the defendant has departed the state." RCW 46.64.040; Huff v. Budbill, 141 Wn.2d 1, 3, 1 P.3d 1138 (2000). As evidence of her good faith belief, Trinh points out that neither she nor Kearns could find Watson in Washington and that Watson had "trouble with the law and [a] terrible driving record." These facts are insufficient, as a matter of law, to create a good faith belief that Watson left the state.
The nonresident motorist statute demands either that the defendant has actually departed the state, or after exercising due diligence to find the defendant in the state, the plaintiff has a reasonable good faith belief that the defendant has left the state. Martin v. Meier, 111 Wn.2d 471, 473, 760 P.2d 925 (1988); Huff, 141 Wn.2d at 3. The parties in Huff, like those here, had been in a car accident. Huff, 141 Wn.2d at 3. Budbill, the defendant, gave Huff his address, and telephone and pager numbers. Huff, 141 Wn.2d at 3. But, the process server could not find Budbill at that address and could not reach him via telephone or pager. Huff, 141 Wn.2d at 3-4. After these failed attempts the plaintiff served the Washington Secretary of State with the summons and complaint under the nonresident motorist statute. Huff, 141 Wn.2d at 5-6. On these facts, the Washington State Supreme Court held that the nonresident motorist statute could not be used to serve Huff; that the statute could not be used where a defendant "simply 'cannot be found in the State.'" Huff, 141 Wn.2d at 9-10 (quoting Huff v. Budbill, 93 Wn. App. 258, 265, 969 P.2d 1085 (1998). In her dissent, Justice Ireland wrote that the "absent motorist statute is specifically intended to apply when motorists use the roadways and then are not available to answer for [the] injuries they have inflicted." Huff, 141 Wn.2d at 20. Trinh urges us to follow her dissent. But, we are bound by the majority opinion in Huff.
Trinh also relies on Martin to establish a reasonable good faith belief that Watson had left the state is also misplaced. Martin, 111 Wn.2d at 471. The defendant in Martin gave the plaintiff a Seattle address as his residence. Martin, 111 Wn.2d at 473. When the plaintiff attempted to contact the defendant by registered mail the post office sent her a notice indicating that the defendant had moved and that forwarding services had expired. Martin, 111 Wn.2d at 474. When the plaintiff attempted to serve the defendant at that address, a neighbor told the process server that the defendant had moved to California. Martin, 111 Wn.2d at 474-75. Plaintiff then contacted the university where the defendant claimed to be a student and learned that he had left school. Martin, 111 Wn.2d at 475. Based on these facts, the Washington State Supreme Court held that the plaintiff had a good faith belief that the defendant had left the state. Martin, 111 Wn.2d at 483. The fact that Trinh was unable to find Watson, coupled with his having "had trouble with the law and [a] terrible driving record," are insufficient, as a matter of law, to create a reasonable good faith belief that Watson had left the state.
Because Trinh can point to no evidence whatsoever that indicates Watson left the state, we cannot hold that she had a reasonable good faith belief that he did. The trial court correctly granted summary judgment.
Affirmed.
AGID and BAKER, JJ., concur.