Wichert v. Cardwell
812 P.2d 858, 1991 Wash. LEXIS 324, 117 Wash. 2d 148 (1991)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Substitute service of process is valid if performed upon a defendant's adult child who is an overnight resident and sole occupant of the defendant's usual abode at the time of service, provided the method is reasonably calculated to provide actual notice to the defendant.
Facts:
- Plaintiff filed a personal injury lawsuit one day before the statute of limitations expired.
- Plaintiff attempted service of the summons and complaint on the defendants, the Cardwells, within 90 days of filing.
- The Cardwells were out of state when the process server attempted to deliver the summons and complaint to their residence.
- Defendant wife's 26-year-old daughter, Kim Pearson, was staying at the Cardwell's residence the night before service and had a key to the home.
- Kim Pearson lived in her own apartment, was self-supporting, and did not keep personal possessions at the Cardwell's residence, infrequently staying overnight.
- A process server informed Kim Pearson he was there to serve the Cardwells, and after a discussion, she took possession of the summons and complaint.
- The Cardwells subsequently received the summons and complaint and entered a notice of appearance 10 days after service.
Procedural Posture:
- Plaintiff filed a personal injury lawsuit in a trial court against the Cardwells.
- The trial court denied the Cardwells' motion for summary judgment, finding a genuine issue of material fact regarding service.
- After a trial on the short matter calendar, the trial court entered findings of fact and dismissed the plaintiff's lawsuit, concluding service of process was insufficient.
- Plaintiff appealed the trial court's dismissal to the Court of Appeals.
- The Court of Appeals, on a motion on the merits, affirmed the trial court's dismissal of the plaintiff's lawsuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does substitute service of process on a defendant's adult child, who is an overnight guest and sole occupant of the defendant's usual abode at the time of service, satisfy the statutory requirement that the recipient be 'then resident therein' and provide constitutionally adequate notice?
Opinions:
Majority - Brachtenbach, J.
Yes, substitute service of process on a defendant's adult child, who is an overnight guest and sole occupant of the defendant's usual abode at the time of service, satisfies the statutory requirement of being 'then resident therein' and provides constitutionally adequate notice. The court affirmed that the purpose of service statutes is to provide due process by ensuring notice and an opportunity to be heard. Interpreting the statutory phrase 'then resident therein' in light of legislative intent, the court emphasized that the means employed for service must be 'reasonably calculated to accomplish' actual notice, as established in Mullane v. Central Hanover Bank & Trust Co. Service on a defendant's adult child, who is an overnight resident and the sole occupant of the usual abode, is reasonably calculated to provide such notice, especially given the likelihood of a family member presenting the papers to the defendant. The court clarified that the rule of strict construction for statutes in derogation of common law should primarily ascertain legislative intent to change the common law, rather than limit the statute's purpose. Here, the legislature clearly intended to permit substitute service, and the statute should be construed to give meaning to its spirit and purpose, guided by due process principles. The fact that the defendants actually received notice, while not always required, underscored the reasonableness of the service method.
Analysis:
This case broadens the interpretation of 'resident therein' for substitute service, shifting the focus from strict domicile to a practical assessment of whether the chosen method is 'reasonably calculated' to give notice. It reinforces the Mullane due process standard in the context of state service statutes, making it more feasible for plaintiffs to effect valid service on absent defendants, especially when actual notice is subsequently received. The opinion also provides valuable guidance on the proper application of the 'strict construction' maxim for statutes that derogate common law, advocating for an interpretation that aligns with legislative purpose and constitutional due process over rigid literalism. This precedent is crucial for understanding the flexibility and intent behind substitute service provisions, impacting how courts evaluate the sufficiency of service in future cases.
