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Cito v. Rios

Court of Appeals of Washington, Division 1

May 29, 2018

ELIZABETH CITO, Appellant,
v.
JENNIFER K. RIOS, and JOHN DOE RIOS, individually and as the marital community composed thereof, Respondents.

          Schindler, J.

         Under the plain and unambiguous language of RCW 46.64.040, where a resident is involved in a motor vehicle collision and "thereafter at any time within the following three years cannot, after a due and diligent search, be found, " the secretary of state shall be appointed to accept service of process. Under RCW 46.64.040, service of process on the secretary of state has the same force and effect as personal service. Elizabeth Cito filed a personal injury lawsuit against Jennifer K. Rios for damages from a rear-end collision. The court dismissed the lawsuit on the grounds that Rios was not properly served under RCW 46.64.040. The undisputed record establishes that despite' repeated attempts to serve Rios, she avoided and refused to accept service of process. Because the record establishes that after a due and diligent effort to serve Rios, she could not be found for purposes of service of process, we hold RCW 46.64.040 authorized service of process on the secretary of state. We reverse and remand for trial.

         Car Accident

         The facts are undisputed.[1] On September 28, 2012, Elizabeth Cito was driving to work in her 2008 Subaru, traveling eastbound on the West Seattle Bridge. As Cito slowed to merge onto the Interstate 5 off-ramp, a Honda Civic rear-ended her car. The "Police Traffic Collision Report" identifies the driver of the Honda Civic as Jennifer K. Rios. The Police Traffic Collision Report states her address is 8817 25th Place Northeast, Seattle, Washington 98115. The police cited Rios for "[f]ollowing too close." The collision report states that when Cito "slowed and stopped for traffic, " Rios rear-ended her car. The report notes both Cito and Rios "complained of neck pain" and the cars were towed.

         Personal Injury Lawsuit

         Cito's attorney was in contact with the GEICO claims adjuster for Rios over the course of the next two years. On September 23, 2015, the attorney notified the claims adjuster that Cito planned to file a lawsuit. The attorney said, "I called him so that he could notify his insured, so that she would not be alarmed when someone knocked on her door to serve papers. The claims adjustor... requested that I fax him a copy of the complaint once it was filed."

         On September 25, 2015, Cito filed a personal injury complaint for damages against Rios in King County Superior Court. On September 28, Cito's attorney faxed a copy of the summons and complaint to the GEICO claims adjuster.

         On September 30, an attorney filed a notice of appearance on behalf of Rios. The notice of appearance requests that "all further pleadings, except service of process, be forwarded" to the attorney.

         Attempts to Serve Rios

         On September 30, 2015, an ABC Legal Messenger (ABC) process server attempted to serve Rios at the Seattle address in the Police Traffic Collision Report with the summons, the personal injury complaint, and the order setting civil case schedule. The process server learned Rios no longer lived at that address.

         After conducting a search of public records, Cito's attorney located an address for Rios at 15704 80th Street East, Puyallup, Washington. On October 2, an ABC process server attempted to serve Rios at the Puyallup address. The current occupant told the process server that Rios lived at that address only temporarily and she did not know her new address.

         On October 14, Cito's attorney sent an e-mail to Rios's attorney stating, "[W]e have not yet served your client, as she has moved from her previous address. We will be using ABC investigation to locate and serve her." Cito's attorney asked, "Please let me know if you are able to accept service for her or if you have obtained her permission to share her address." The attorney responded, "Let me know when you have service."

         ABC conducted "a full investigation to locate Ms. Rios' current address." ABC located an address for Rios at an apartment complex in Des Moines-2701 South 224th Street, apartment H304. On October 14, a process server attempted service at the Des Moines address at 4:30 p.m. Although no one answered the door, the ABC process server heard "movement inside."[2] The process server left several telephone messages. After "neighbors confirmed" that Rios lived in apartment H304, the process server waited in the parking lot. Approximately a half-hour later, the process server tried to serve Rios with the pleadings. Rios "refused to accept" service.[3]

         The ABC process server attempted to serve Rios again the next day on October 15. The apartment manager confirmed Rios lived in apartment H304. The woman in apartment H304 refused to open the door and accept service or identify herself. The process server left a number of telephone messages. Rios did not respond.

10/15/2015 2:32 PM: Per JANE DOE, WHO REFUSED TO GIVE NAME, RESIDENT, a female contact. Occupant is believed to be subject by server. Neighbors and management confirm that provided address is good for subject. Occupant refuses to open doors to server and accept documents. Occupant spoke from inside of apartment and would not make herself visually known.... Multiple messages have been left on provided phone number.

ABC suggested Cito "[f]orward to sheriff's office to complete process of service."

         A King County deputy sheriff tried to serve Rios at the Des Moines address on October 28. When there was "[n]o answer, " he left his card. The deputy left voice messages and sent text messages on October 28, 29, and 30. Rios did not respond. On November 2, the deputy went to the apartment and left his card. The deputy returned on November 9 but there was "[n]o response at door."

         On November 14, ABC made one last attempt to serve Rios at the Des Moines address with the summons, personal injury complaint, and order setting civil case schedule. After Rios "absolutely refuse[d] to accept legal documents, " the process server returned with the apartment manager and tried a second time to serve Rios. A woman from inside the apartment spoke to the process server but did not open the door.

         Service on the Secretary of State

         On December 3, Cito filed a "Notice of Service on the Secretary of State" and a "Declaration of Compliance." The Declaration of Compliance describes the numerous ...


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