{"id":2200,"date":"2018-04-07T09:46:26","date_gmt":"2018-04-07T17:46:26","guid":{"rendered":"http:\/\/trainingpips.com\/?page_id=2200"},"modified":"2019-04-18T03:18:57","modified_gmt":"2019-04-18T11:18:57","slug":"ps-102-chapter-2-article-8-abode-service-held-invalid-gerean-v-martin-joven","status":"publish","type":"page","link":"https:\/\/www.trainingpips.com\/index.php\/ps-102-a-course-outline\/ps-102-understanding-case-summaries\/ps-102-chapter-2-an-introduction-to-abode-service\/ps-102-chapter-2-article-8-abode-service-held-invalid-gerean-v-martin-joven\/","title":{"rendered":"PS 102 – Chapter 2 – Article 8 – Abode Service Held Invalid – Gerean v. Martin-Joven"},"content":{"rendered":"

Improper Service Results in Case<\/a> Dismissal<\/a>
\nGerean v. Martin-Joven
\n108 Wn. App.963 (2001)<\/span><\/strong><\/p>\n

Facts<\/strong><\/span><\/p>\n

Ms. Gerean and Mrs. Martin-Joven were involved in an automobile collision in Spokane, Washington. At the time of the accident, Defendant<\/a> Martin-Joven was living with her parents in Deer Park. Four days before the running of the three year statute of limitations<\/a>, Gerean filed a claim<\/a> for damages<\/a>. Two weeks later, Plaintiff Gerean’s process server went to the Deer Park address and left copies of the summons and complaint<\/a> with Ms. Martin-Joven’s father.<\/span><\/p>\n

A year before the attempted service, Martin-Joven moved from her parent’s home in Deer Park to Walla Walla. She lived there continuously ever since. The day following the attempted service, Martin-Joven’s father was in Walla Walla on business and gave the papers to Ms. Martin-Joven at her home.<\/span><\/p>\n

Four days after the “service”, Martin-Joven’s attorney filed a notice<\/a> of appearance<\/a>, reserving all defenses. Her attorney also requested a copy of the affidavit<\/a> of service. The amended affidavit<\/a> of service said the process server asked if Martin-Joven was at home and that Mr. Martin told him she was not but would return later in the day. Mr. Martin testified by affidavit<\/a> that he was asked only if his daughter was there, and he answered, “No.” Mr. Martin said that when he asked why the visitor was looking for his daughter, the process server did not answer<\/a> but handed the documents to him and left.<\/span><\/p>\n

Defendant<\/a> moved for summary judgment<\/a> dismissing the action<\/a> based on insufficient service. Plaintiff proposed that service was sufficient under one of two theories: 1) accidental personal service<\/a>, and 2) substituted service by estoppel<\/a>. The trial court found that neither personal nor substituted service had been affected and dismissed the action<\/a>.<\/span><\/p>\n

Judicial<\/a> History<\/span><\/strong><\/p>\n

Personal injury action<\/a> brought by plaintiff against defendant<\/a> in Superior Court for Spokane County<\/a>. Attorney for Defendant<\/a> moved for a motion<\/a> for summary judgment<\/a> dismissing the claim<\/a> for insufficiency of service of process. Trial Court granted its motion<\/a>. Court of Appeals affirms the judgment<\/a>. Case<\/a> dismissed due to a lack of jurisdiction<\/a> over the defendant<\/a>.<\/span><\/p>\n

Specific Issues<\/strong><\/span><\/p>\n

    \n
  1. Was service of the summons on Defendant<\/a>’s father at his home in Deer Park sufficient if the father delivered the papers to her in Walla Walla, where she lives? No<\/strong><\/span><\/li>\n
  2. Did the father’s delivery of the documents to the defendant<\/a> constitute valid service? No<\/strong><\/span><\/li>\n<\/ol>\n

    Holding<\/span><\/strong><\/p>\n

    Washington law<\/a> is well settled that process not handed to the defendant<\/a> in person<\/a> must be left at her ‘center of domestic activity’ to be deemed reasonably calculated to effect actual notice<\/a>. Actual notice<\/a> does not constitute sufficient service. Proper service requires actual service on the defendant<\/a> or at her abode. The fortuitous delivery of process by the defendant<\/a>’s father did not constitute valid service.<\/span><\/p>\n

    C4PSE Comment<\/strong><\/span><\/p>\n

    Though “yes” and “no” are often the response we get, sometimes they aren’t good enough. As process servers, we shouldn’t settle for “yes” or “no” answers. We need to know how to ask questions that require a more substantial answer<\/a> or how to keep asking questions until we have enough information<\/a> to make a decision about the validity of the service. If what the father said was true and the server asked “Is your daughter home?” to which he replied “No” the server should have kept asking questions; he should not have considered that simple answer<\/a> sufficient to leave the papers with the father.<\/span><\/p>\n

    It is not unknown for friends and family members to lie about the defendant<\/a>’s actual residency. Though it seems counter intuitive, the friend or family member may<\/a> think they are protecting the defendant<\/a> by telling the process server the defendant<\/a> lives there with them when in fact<\/a> the defendant<\/a> does not live there.<\/span><\/p>\n

    For these reasons the following should be considered best practices.<\/span><\/p>\n

    First, whenever time allows and especially in personal injury cases, always strive to obtain service by presenting the documents directly to the defendant<\/a>.<\/span><\/p>\n

    Second, if you must make service using the abode method, ask as many questions as possible in an effort to confirm that all aspects of the abode service rule are met.<\/span><\/p>\n

    Immediately afterwards reduce the details of the conversation to writing and report them to your client.<\/span><\/p>\n

    Let’s take a moment and recap RCW 4.28.080 subsection 16. Service is made:<\/span><\/p>\n

    “In all other cases, to the defendant<\/a> personally, or by leaving a copy of the summons at the house of his or her usual abode with some person<\/a> of suitable age and discretion then resident therein.”<\/span><\/p>\n

    The latter part of this subsection deals with abode service. It creates a three part test for any service accomplished in this manner.<\/span><\/p>\n

    First, a copy of the summons must be left at the defendant<\/a>’s house of usual abode.<\/span><\/p>\n

    Second, it must be left with some person<\/a> of suitable age and discretion.<\/span><\/p>\n

    Finally, third, the person<\/a> with whom it is left must also be a resident of that house.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

    Improper Service Results in Case<\/a> Dismissal<\/a> Gerean v. Martin-Joven 108 Wn. App.963 (2001) Facts Ms. Gerean and Mrs. Martin-Joven were involved in an automobile collision in Spokane, Washington. At the time of the accident, Defendant<\/a> Martin-Joven was living with her parents in Deer Park. Four days before the running of the three year statute of […]<\/p>\n","protected":false},"author":3,"featured_media":0,"parent":2178,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-2200","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2200","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/comments?post=2200"}],"version-history":[{"count":0,"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2200\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2178"}],"wp:attachment":[{"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/media?parent=2200"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}