PS 102 – Chapter 2 – Article 9 – Abode Service Held Invalid – Blankenship v. Kaldor

Blankenship v. Kaldor
Court of Appeals Division III
Docket 20857-5-III
Published Opinion

Facts
Ms. Blankenship and Ms. Kaldor were involved in a motor vehicle accident on September 6, 1997. On September 1, 2000, shortly before the expiration of the statute of limitations, Ms. Blankenship filed a personal injury complaint against Ms. Kaldor.

Ms. Kaldor was a minor at the time of the accident and had been living primarily with her mother. Then, after living with her father for two years, she moved to Portland, OR. However, she continued to maintain a checking account with a credit union in Richland, WA.

A process server went to the mother’s address in an attempt to serve Ms. Kaldor but was informed she no longer lived there and had moved to Portland. Her mother called Ms. Kaldor’s father who, in turn, got in touch with the process server and made arrangements for the process server to bring the documents to his home the following day.

When they met, Mr. Kaldor told the process server the following:

1. Ms. Kaldor receives her mail at his house.
2. He would be seeing his daughter soon.
3. He would turn the documents over to his insurance company.
4. There should be no problem as his insurance company would take care of it.

Ms. Kaldor was an insured under her father’s policy. The next business day her father mailed a copy of the documents to her in Portland and gave the originals to his insurance agent.

The insurance company’s attorney filed an appearance which included a reservation of defenses, including that of improper service of process.

Over a period of nine months the defense counsel issued interrogatories and requests for production, deposed Ms. Blankenship, and undertook other investigative steps. However, the defense never filed an answer to the complaint until they were forced to by Ms. Blankenship’s motion for an order of default which was filed in December of 2001.

At this point Ms. Kaldor filed an answer to the complaint which included affirmative defenses of insufficiency of service of process and the passage of the statute of limitations. Ms. Kaldor moved for summary judgment to dismiss the case and this was granted by the trial court.

Specific Issues

1. Did service via the father qualify as abode service under RCW 4.28.080(16)? No
2. Did service via the father qualify under RCW 4.28.080(17)? No
3. Did defense counsel fail to act appropriately and follow court rules even though it had the necessary facts to proceed? Yes

Reasoning
The statute of limitations expired on September 6, 2000. However, the case was filed on September 1, 2000. The filing tolled the statute of limitations for 90 days beyond the date of filing or, in this case, November 30, 2000.

Abode service under RCW 4.28.080(15) is effective when a copy of the summons is left at the defendant’s house of usual abode with a person of suitable age and discretion who also resides there. There are circumstances under which a person might have more than one house of usual abode, also known as a center of domestic activity. In this case the court ruled abode service on Ms. Kaldor was not effective for the following reasons.

1. She signed a lease for her new residence in Portland in August of 2000.
2. She obtained an Oregon driver’s license.
3. She found employment in Portland.

Having made such basic changes in her life the court determined she no longer maintained a center of domestic activity at her father’s residence.

The court found that service via RCW 4.28.080(17) was not effective because the plaintiff failed to explain how the requirements for this style of service were met.

The court refused to allow the defendant to use insufficiency of service of process as a defense because her counsel made a number of procedural errors.

C4PSE Comment
It is important to note that the Court of Appeals allowed this case to go to trial only because of mistakes made by the insurance attorneys. The court was clear in saying the service itself was invalid.

The facts of the service are clear. Ms. Kaldor was not living with her father at the time of the service. Therefore any attempt to obtain service upon her by leaving the documents at the father’s residence was not going to qualify under RCW 4.28.080(16).

Service under RCW 4.28.080(17) might have been upheld by the court if its requirements had been met and explained to the court. Ms. Kaldor was using her father’s address to receive important mail, i.e. bank statements from a local credit union. But based on the record the process server did not undertake any reasonable diligence or conduct the mailing required by the statute.

The process server made several serious mistakes in handling the situation and appears to have had a lack of understanding of some of the basic rules of service. He or she may also have allowed Ms. Kaldor’s father’s assurances to create a feeling of false security. The court will not take into account what was said during a service, only whether or not the requirements of the statute were met.