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Sheldon v. Fettig

filed: August 1, 1996.

PAMELA SHELDON, RESPONDENT,
v.
FRANCINE FETTIG AND "JOHN DOE" FETTIG, WIFE AND HUSBAND, AND THE MARITAL COMMUNITY PROPERTY COMPOSED THEREOF, PETITIONERS.



Appeal from Superior Court, Grant (92-2-00480-8) County; Honorable Kenneth Jorgensen, Judge. Judgment Date: 9-15-93.

Sanders, J., Dolliver, Smith, Guy, Johnson, J.j., concurring. Talmadge, J. (dissenting by separate opinion), Durham, C.j., Madsen, J., dissenting.

Author: Sanders

En Banc

SANDERS, J.--The question in this case is the sufficiency of service of process where plaintiff attempted service of process by leaving a copy of the summons and complaint with defendant's brother at her parents' home. The only issue is whether the place where the summons was left constitutes defendant's house of usual abode. Under these facts, we conclude that service complied with RCW 4.28.080(15) and accordingly affirm the trial court and the Court of Appeals.

FACTS

On July 15, 1989, petitioner Francine Fettig and respondent Pamela Sheldon were involved in a car accident in Grant County allegedly caused by Ms. Fettig's negligence. On July 9, 1992, six days before the statute of limitations would have run, Ms. Sheldon filed suit for damages in Grant County Superior Court. She served process by sending a professional process server to the home of Ms. Fettig's parents in Seattle where a copy of the complaint and summons was left with Ms. Fettig's brother.

On December 7, 1991, eight months before process was served, Ms. Fettig had relocated to Chicago to begin a training program with United Airlines to work as a flight attendant. Prior to moving, she had lived on her own for two to three years in Seattle and then Renton. Immediately prior to leaving for Chicago, Ms. Fettig gave up her Renton apartment and moved back into her parents' Seattle home where she stayed for at least two months.

Ms. Fettig repeatedly used her parents' address as the place where she could be contacted before, during, and after this two-month period. Four months before her departure for Chicago, Ms. Fettig was cited for speeding and gave her parents' Seattle address as her own. Upon moving back into her parents' home, she changed her address with the post office giving her parents' address as her own and continued having all her mail sent there for at least seven weeks after moving to Chicago. Two weeks after Ms. Fettig went to Chicago, she registered to vote in Washington swearing that she was a Washington resident living at her parents' address. Ms. Fettig's car was registered at the same address. When she moved to Chicago she left her car with her father and gave him power of attorney to sell it. The address on the car insurance was changed to her parents' address and kept valid until the car was sold. When the car was sold, one and a half months prior to service of process, the bill of sale filed with the Department of Licensing listed the Seattle Fettig home as Ms. Fettig's address.

Upon moving to Chicago, Ms. Fettig left much of her personal belongings at her parents' house all of which were allegedly boxed up. She also left an inactive savings account in Seattle with a balance less than $20.

Upon completion of a seven-week flight attendant training program in Chicago, Ms. Fettig took apartment there with two other flight attendants. They signed a 13-month lease and moved in eight months before service was attempted. Ms. Fettig then had all her mail sent to Chicago, joined a health club, and opened a checking account. However, she never got an Illinois driver's license but rather kept her Washington license which used her former Renton address. Further, she never registered to vote in Chicago and remained registered in Seattle.

As a beginning flight attendant, Ms. Fettig was without a route and served on an on-call basis. She had blocks of time off, and, like her roommates, frequently flew home. The fact that she was frequently home is confirmed by her father who stated that during August, the month service was made, Ms. Fettig spent perhaps four or five days at home and five or six the month before. Ms. Fettig was also there when the office of Ms. Sheldon's attorney first called the Fettig home seeking Ms. Fettig's insurance information. However, she had no designated bedroom at her parents' home and further contends in her deposition the next door neighbor became her boyfriend in July, a month before service of process, and that she always slept at his house from then on when in Seattle.

Ms. Sheldon's attorney first contacted Ms. Fettig by calling her at the Fettig family home in June, less than two months before process was served, using the phone number supplied by the insurer of the car driven by Ms. Fettig at the time of the accident. (It was a friend's car.) Ms. Fettig's father took the call during which Ms. Fettig, who was at the Seattle house at the time, could be heard by the attorney conversing in the background. On the same day, Ms. Sheldon's attorney sent Ms. Fettig a letter to her parents' address and received a response from her within four days.

On August 7, 1992, Ms. Sheldon sent a professional process server to the Fettig family home. Ms. Fettig was reportedly not there and the server left the complaint and summons with Ms. Fettig's brother pursuant to the substitute service of process statute. RCW 4.28.080(15). No evidence was given to indicate where Ms. Fettig was on August 7, 1992, the day process was served.

Twelve days after service was made, Ms. Fettig's attorney gave notice of special appearance. On September 14, 1992, Ms. Fettig served an answer to the complaint asserting, as an affirmative defense, that Ms. Sheldon had failed to effect proper service of process.

After the statute of limitations and the 90-day extension period ran, Ms. Fettig moved for summary judgment on the grounds that the court lacked jurisdiction because service of process was insufficient. Ms. Fettig asserted she in fact lived in Chicago, her parents' home was not her house of usual abode, and, accordingly, process left at her parents' house was necessarily defective. The trial court denied the motion and ordered that the defense of improper service of process be stricken. The trial court reasoned at the time of service Ms. Fettig was a Washington State resident; at the time of service, Ms. Fettig maintained two "personal abodes," one in Chicago and one at her parents' home in Seattle; and Ms. Sheldon perfected service.

Ms. Fettig sought discretionary review by the Court of Appeals which granted review and affirmed. Sheldon v. Fettig, 77 Wash. App. 775, 893 P.2d 1136, review denied, 127 Wash. 2d 1016, 904 P.2d 300 (1995). She then petitioned this court for review and review was granted. She contends that service did not comply with RCW 4.28.080(15) because her parents' home is not her house of usual abode. She does not contest that she is a Washington State resident.

SUFFICIENCY OF SERVICE OF PROCESS

The issue here is whether the Fettig family home was Ms. Fettig's house of usual abode for substitute service of process pursuant to RCW 4.28.080(15). We conclude that it was and that this service of process was sufficient.

Substitute service of process is effective when (1) a copy of the summons is left at defendant's house of usual abode, (2) with some person of suitable age and discretion, (3) then resident therein. RCW 4.28.080(15).

In interpreting substitute service of process statutes, strict construction was once the guiding principle of statutory construction. See Muncie v. Westcraft Corp., 58 Wash. 2d 36, 38, 360 P.2d 744 (1961). However, more recently, we have applied liberal construction to substitute service of process statutes in order to effectuate the purpose of the statute while adhering to its spirit and intent.

For example, in Martin v. Meier, 111 Wash. 2d 471, 760 P.2d 925 (1988) the issue was whether a defendant was properly served under the motorist statute. Such service is statutorily permitted only when the defendant "departs from this state." RCW 46.64.040. The defendant in Martin had not left the state although plaintiff was unable to locate him. This court liberally construed the term and upheld the sufficiency of service of process. In doing so, the term "departs" was interpreted by looking at the underlying purpose of the motorist statute which is to provide a method for serving motorists who cannot be found in the State.

In Wichert v. Cardwell, 117 Wash. 2d 148, 812 P.2d 858 (1991), we used liberal construction in interpreting the term "then resident therein" in the substitute service of process statute noting that strict construction "'has been the object of a great deal of criticism in modem times.'" Id. at 152, 155 (quoting 3 Norman J. Singer, Statutory Construction ยง 61.04 (4th ed. 1986)). In Wichert, service was left at defendant's home with his adult stepdaughter who happened to be staying the night while the parents were away. The adult daughter, however, lived elsewhere, was self-supporting, and had no personal possessions at the parental house. Wichert, 117 Wash. 2d at 150. We focused on the "spirit and intent of the statute" rather than "the literal letter of the law" and stated that the term should be defined so as to uphold the underlying purpose of the statute. Id. at 151. We held the dual purpose of the statute is to (1) provide means to serve defendants in a fashion reasonably calculated to accomplish notice and (2) allow injured parties a reasonable means to serve defendants. Wichert, 117 Wash. 2d at 151-52. The court found an adult ...


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