PS 102 – Chapter 4 – Article 5 – Due Diligence – Carras v Johnson
Summary
Carras v. Johnson, 77 Wn. App. 588, (1995).
Facts
Carras and Johnson were involved in a motor vehicle accident. The accident report listed Johnson’s address in Hermiston, Oregon, and listed the registered owners of the car as Edith and Woodrow Walker also in Hermiston.
On the date which the 3-year statute of limitation expired, Plaintiff Carras filed a summons and complaint naming as defendants “Linda Louise Johnson and Edith and Woodrow Johnson.” It also alleged that the “Johnsons” (the Walkers) were Johnson’s parents and owners of the car.
Within 90 days, Plaintiff’s attorney forwarded copies of the summons and complaint to a legal messenger service, who in turn forwarded the documents to another messenger/process server whose service area included Hermiston, Oregon.
Seven days later, the process server contacted plaintiff’s attorney to inform that it has been unable to locate the defendants. The Affidavit of non-Service Return attested that “after due search, careful inquiry and diligent attempts” he was unable to contact the defendants, as neither the Walkers nor Johnson resided at the addresses listed on the accident report.
Plaintiff’s attorney then substituted service on the Secretary of State under the Nonresident Motorist Act, and filed an affidavit representing that he had exercised due diligence in attempting service of process on the Defendants. His affidavit stated that:
- In an almost 2 month period, he had made various telephone inquiries in the area in an attempt to locate the Walkers and Johnson.
- That the addresses in the police report were not valid.
- That he used the nonresident motorist statute because of the impending expiration of the 90 day service of process period.
The Secretary of State mailed by registered mail, return receipt requested, the summons and complaint to Johnson and the Walkers at their last known residences. The documents were returned undeliverable.
Defendants moved for summary judgment based on a lack of jurisdiction for failure to serve within 90 days of filing the complaint.
Judicial History
Defendants moved for summary judgment. The Superior Court for Walla Walla County relying on Martin v. Triol, 121 Wn.2d 135, 847 P.2d 471 (1993), concluded that Plaintiff had not exercised due diligence in attempting to serve the Defendants personally and therefore was not entitled to use the Nonresident Motorist Act statute. The Court entered a summary judgment in favor of defendants and dismissed the action. Plaintiff appealed.
Court of Appeals held that plaintiffs had exercised due diligence in attempting to serve process on the defendants. Judgment was reversed and the case remanded to Supreme Court for further proceedings.
Specific Issue
Is the determination of what particular actions are sufficient to constitute due diligence in attempting to serve process subject to “mathematical certainty”? No
General guidelines for considering whether plaintiffs’ efforts are reasonable were provided by the courts in Martin v. Meier, 111 Wn. 2d 471, 760 P.2d 925 (1988), and Martin v. Triol, 121 Wn.2d 135, 847 P.2d 471 (1993).
Considerations include:
- Focus on what plaintiff did, rather than on what the plaintiff failed to do. The courts had previously held that “not all conceivable means need be employed.”
- The plaintiff has a right to rely on the information in the accident report. The courts had previously ruled that “at least, the accident report, if made, must be examined and the information therein investigated with reasonable effort.”
- The plaintiff has the full period of the statute of limitation within which to attempt to effect service. Waiting until days before the statute runs does not “militate against” a finding of appropriate due diligence.
Holding
Applying these considerations to the facts here, the court concluded Plaintiff’s efforts, while certainly not exhaustive, were both honest and reasonable.
He retained a professional process server in his attempts to locate and serve defendants. He relied upon the information, including addresses, set out in the accident report in attempting to effect service. While it is true the Walkers were misnamed “Johnson”, that error is harmless. The process server was correctly directed to serve the Walkers, not the Johnsons.
C4PSE Comment
As stated above, due diligence must be reasonable but it does not need to be exhaustive.
The most important thing a process server can do to exercise due diligence is use all of the information available. As seen above between the attorney and the process server, they ran down leads for several addresses and several telephone numbers in an attempt to serve the defendants. While most process servers would consider this the bare basics of due diligence, seeing as it excluded all forms of computer searches now available, it was still a diligent use of the information at hand.
Although this “bare bones” diligence won the day in this case, the Center strongly recommends a higher level of effort than was shown in this case.
This is a rough diagram of a typical courtroom in the state of Washington. Courtrooms vary a great deal from city to city and county to county but they all have the same basic structure.
