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Process Serving 102 – Case Law

PS 102 – Understanding Case Summaries
PS 102 – Chapter 1 – An Introduction to Personal Service Case Law
1 Topic
PS 102 – Chapter 1 – Article 1 – Personal Service Held Invalid – Gross vs Sunding
PS 102 – Chapter 2 – An Introduction to Abode Service
9 Topics
PS 102 – Chapter 2 – Article 1 – Abode Service Upheld – Lino vs Hole
PS 102 – Chapter 2 – Article 2 – Abode Service Upheld – Chase v. Starkweather
PS 102 – Chapter 2 – Article 3 – Abode Service Upheld – Sheldon v Fettig
PS 102 – Chapter 2 – Article 4 – Abode Service Held Invalid – McCann v. Orth
PS 102 – Chapter 2 – Article 5 – Abode Service Upheld – Wichert vs Cardwell
PS 102 – Chapter 2 – Article 6 – Abode Service Held Invalid – Farmer vs Davis
PS 102 – Chapter 2 – Article 7 – Abode Service Held Invalid – Salts vs Estes
PS 102 – Chapter 2 – Article 8 – Abode Service Held Invalid – Gerean v. Martin-Joven
PS 102 – Chapter 2 – Article 9 – Abode Service Held Invalid – Blankenship v. Kaldor
PS 102 – Chapter 3 – An Introduction to Immunity from Service Case Law
2 Topics
PS 102 – Chapter 3 – Article 1 – Immunity from Service – State ex rel Gunn v. Superior Court
PS 102 – Chapter 3 – Article 2 – Immunity from Service – Anderson vs Ivarsson
PS 102 – Chapter 4 – An Introduction to Due Diligence Case Law
6 Topics
PS 102 – Chapter 4 – Article 1 – Due Diligence – Brennan vs Hurt
PS 102 – Chapter 4 – Article 2 – Due Diligence – Painter v. Olney
PS 102 – Chapter 4 – Article 3 – Due Diligence – Chase v. Carney
PS 102 – Chapter 4 – Article 4 – Due Diligence – Parkash vs Perry
PS 102 – Chapter 4 – Article 5 – Due Diligence – Carras v Johnson
PS 102 – Chapter 4 – Article 6 – Due Diligence – Wells Fargo v Ngy
PS 102 – Chapter 5 – An Introduction to Non Resident Motorist Act Case Law
3 Topics
PS 102 – Chapter 5 – Article 1 – Non Resident Motorist Act – Martin v Meier
PS 102 – Chapter 5 – Article 2 – Non Resident Motorist Act – Harvey v Obermeit
PS 102 – Chapter 5 – Article 3 – Non Resident Motorist Act – Martin vs Triol
PS 102 – Chapter 6 – An Introduction to Evasion of Service Case Law
5 Topics
PS 102 – Chapter 6 – Article 1 – Evasion of Service – State vs Vahl
PS 102 – Chapter 6 – Article 2 – Evasion of Service – Weiss vs Glemp
PS 102 – Chapter 6 – Article 3 – Evasion of Service – Diversified Wood vs Johnson
PS 102 – Chapter 6 – Article 4 – Evasion of Service – United Pacific Insurance vs Discount Company
PS 102 – Chapter 6 – Article 5 – Evasion of Service – Mann vs Hobbick
PS 102 – Chapter 7 – An Introduction to Defendant Instructed Service Case Law
1 Topic
PS 102 – Chapter 7 – Article 1 – Instructed Service – Thayer vs Edmonds
PS 102 – Chapter 8 – An Introduction to Service on an Entity Case Law
4 Topics
PS 102 – Chapter 8 – Article 1 – Service on an Entity – Dolby vs Worthy
PS 102 – Chapter 8 – Article 2 – Service on an Entity – Lybbert vs Grant County
PS 102 – Chapter 8 – Article 3 – Service on an Entity – Reiner vs Pittsburg Des Moines Corp
PS 102 – Chapter 8 – Article 4 – Service on an Entity – Weber vs Associated Surgeons
PS 102 – Chapter 9 – An Introduction to Time Computation Case Law
1 Topic
PS 102 – Chapter 9 – Article 1 – Time Computation – Stikes Woods vs City of Lacey
PS 102 – Chapter 10 – An Introduction to Who May Serve Case Law
2 Topics
PS 102 – Chapter 10 – Article 1 – Who May Serve – Brown-Edwards vs Powell
PS 102 – Chapter 10 – Article 2 – Who May Serve – Scanlan vs Townsend
PS 102 – Chapter 11 – An Introduction to Statutes of Limitation
1 Topic
PS 102 – Chapter 11 – Article 1 – Statute of Limitations – Sidis vs Brodie Dohrmann Inc
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PS 102 – Chapter 8 – Article 2 – Service on an Entity – Lybbert vs Grant County

Process Serving 102 – Case Law PS 102 – Chapter 8 – An Introduction to Service on an Entity Case Law PS 102 – Chapter 8 – Article 2 – Service on an Entity – Lybbert vs Grant County

Supreme Court
67805-7
Kay Lybbert, et al v Grant County

Facts

The Lybberts claim that they were both injured in early 1993 when their automobile struck a hole in a Grant County road. On August 30, 1995, the Lybberts filed a summons and complaint in the Adams County Superior Court in which they sought damages from the County for the injuries they contend they sustained as a consequence of the County’s alleged failure to maintain its roadway in a safe condition.

Pursuant to RCW 4.28.080(1), the Lybberts were required to serve their summons and complaint on the County auditor. They mistakenly served process on the administrative assistant to the County commissioners. Nonetheless, a few days after the “service,” counsel for the County filed a notice of appearance in which it was indicated that the County was not “waiving objections to improper service or jurisdiction.”

For the next nine months the County acted as if it were preparing to litigate the merits of the case that the Lybberts were attempting to mount against it. For example, shortly after filing its notice of appearance the County served the Lybberts with interrogatories, requests for production, and a request for a statement setting forth general and special damages. In this discovery effort, the County made no inquiry regarding the sufficiency of the service of process.

The County also associated counsel from an outside law firm and duly filed a “notice of association of counsel.” Thereafter, one of the attorneys for the County had conversations over the telephone with the Lybberts’ attorney about insurance coverage and potential mediation. During these contacts, the attorney for the County did not make any mention of an issue surrounding sufficiency of the service of process. The Lybberts’ attorney claims that one of the attorneys for the County told him that the County was working on its answer to the complaint and that it would be provided “as soon as possible.”

On February 29, 1996, the Lybberts’ attorney served one of the attorneys for the County with interrogatories and a request for production of documents. One interrogatory asked the County whether it would be relying on the affirmative defense of insufficient service of process. In April of 1996, a County sheriff’s detective, ostensibly acting on behalf of the County, contacted the Lybberts’ attorney in order to ascertain what type of information the Lybberts were requesting in their interrogatories. According to an affidavit from the Lybberts’ attorney, the detective said that the County would fully cooperate in providing all of the requested discovery information.

On May 6, 1996, the Lybberts responded to the County’s interrogatories, as well as to its requests for production and statement of damages. On June 21, 1996, the County filed its answer to the Lybberts’ complaint and asserted, for the first time, the affirmative defense of insufficient service of process. The County then filed a motion for summary judgment, based on the alleged insufficient service of process, and requested that the case against it be dismissed on the ground that the applicable statute of limitations had run on the Lybberts’ claim. The trial court granted the County’s motion and dismissed the Lybberts’ complaint with prejudice. The Lybberts appealed to Division Three of the Court of Appeals. The Court of Appeals reversed the trial court, holding that the County waived the defense of insufficient service of process and was equitably estopped from asserting it. The Supreme Court granted the County’s petition for review.

Specific Issues

  • When serving a county with a summons, must the papers be left with the Auditor, a deputy Auditor, or the designated agent if on a charter county? Yes
  • Did the Defendant waive its right to raise the issue of insufficient service of process through the inconsistent and dilatory conduct of its representatives? Yes

Holdings

  • The Statute of Limitations in auto accident cases is 3 years.
  • The Plaintiff mistakenly served their Summons and Complaint on the county by leaving the documents with the Administrative Assistant to the County Commissioners.
  • During 8 months of communications and the sharing of documents between the parties, the Defendant never brought up the issue of insufficient service of process.

Reasoning

After reviewing the evidence provided by the Lybberts, the court established that the county was not estopped from asserting a defense of insufficient service of process. However, that did not mean, that the defense was available to the County if it had been waived. This was the issue to which the court turned.

The Lybberts, citing the common law doctrine of waiver, claimed that the County was precluded from asserting the defense of insufficient service of process because it acted in an inconsistent and dilatory manner. Under the doctrine, affirmative defenses such as insufficient service of process may, in certain circumstances, be considered to have been waived by a defendant as a matter of law. The waiver can occur in two ways. It can occur if the defendant’s assertion of the defense is inconsistent with the defendant’s previous behavior. It can also occur if the defendant’s counsel has been dilatory in asserting the defense.

In applying the doctrine, the court first observed that there were no material facts in dispute. It was, therefore, appropriate for the court to apply the doctrine of waiver to the undisputed material facts to determine if the County was precluded from asserting the defense of insufficient service of process in this case. The issue here, was whether the defendants waived the defense by participating in discovery and failing to assert the defense prior to the expiration of the statute of limitations.

It was noted that the mere act of engaging in discovery “is not always tantamount to conduct inconsistent with a later assertion of the defense of insufficient service.” This is so because in some circumstances it may be entirely appropriate for a party to engage in discovery to determine if the facts exist to support a defense of insufficient service.

The court noted that the County’s discovery efforts were not aimed at determining whether there were facts that supported the defense of insufficient service of process. Indeed, because the process server’s affidavit was filed by the plaintiffs, the County knew or should have known that the defense of insufficient service of process was available to it. Moreover, the County did more than just undertake discovery. Of particular significance was the fact that the Lybberts served the County with interrogatories that were designed to ascertain whether the defendant was going to rely on the defense of insufficient service of process. Had the County timely responded to these interrogatories, the Lybberts would have had several days to cure the defective service.

The County failed to preserve the defense by pleading it in its answer or other responsive pleading before proceeding with discovery. Instead, it engaged in discovery over the course of several months and then, after the statute of limitations had apparently extinguished the claim against it, it asserted the defense.

The court concluded that the County was not equitably estopped from asserting the defense of insufficient service of process. It did, however, by the actions of its representatives waive the defense. The court, therefore, affirmed the result reached by the Court of Appeals.

C4PSE Comment

This case is unique in that the original service on the County was upheld despite the error made by the process server. It should be known that there are certain instances when a bad service will not be thrown out of court or have a dire effect on the case, but it should also be known that these are not decisions for the process server to make. As a professional, it is the process server’s job to ensure that every service is done correctly. In this instance the process server was exceptionally lucky in avoiding having the service invalidated by the court.

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