{"id":2221,"date":"2018-04-07T13:53:05","date_gmt":"2018-04-07T21:53:05","guid":{"rendered":"http:\/\/trainingpips.com\/?page_id=2221"},"modified":"2019-04-18T03:23:22","modified_gmt":"2019-04-18T11:23:22","slug":"ps-102-chapter-4-article-4-due-diligence-parkash-vs-perry","status":"publish","type":"page","link":"https:\/\/www.trainingpips.com\/index.php\/ps-102-a-course-outline\/ps-102-understanding-case-summaries\/ps-102-chapter-4-an-introduction-to-due-diligence-case-law\/ps-102-chapter-4-article-4-due-diligence-parkash-vs-perry\/","title":{"rendered":"PS 102 – Chapter 4 – Article 4 – Due Diligence – Parkash vs Perry"},"content":{"rendered":"

Summary
\nParkash v. Perry, 40 Wn. App. 849, 700 P.2d 1201 (1985).<\/strong><\/span><\/p>\n

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

Plaintiff Parkash filed a summons and complaint<\/a> against Defendant<\/a> Perry for a claim<\/a> arising from a motor vehicle accident.<\/span><\/p>\n

At the time of the accident, Perry resided at 1101 E. 7th Ave. in Kennewick.  In addition, her driver’s license listed her parent’s Kennewick address.  Several months after the accident, she moved to her parent’s home and lived with them until she was married. After her marriage, she moved to an apartment in Kennewick.  In addition, at all times pertinent, Perry was employed in Kennewick.  The accident report contained Defendant<\/a>’s address and place of employment (a hairdresser).<\/span><\/p>\n

The process server, engaged by Plaintiff stated in his return of service “after due and diligent search and inquiry…I have been unable to find Defendant<\/a> within this County<\/a> and State.”  The affidavit<\/a> contained the following, “NOTE: A neighbor who was questioned thought the Perry’s had moved to somewhere in the vicinity of 4th and Olympia in Kennewick”.<\/span><\/p>\n

Following that, Plaintiff’s attorney published service of process, stating that Defendant<\/a> was not a resident of the state and after due diligence<\/a> could not be found within this state.  Due diligence<\/a>, as stated in the affidavit<\/a>, consisted of a search of the telephone information<\/a> listing for the Tri-Cities and the “Not Found” return of the process server.  No one representing Plaintiff Parkash ever attempted to contact Perry either at home or at her place of work.<\/span><\/p>\n

Defendant<\/a> moved for dismissal<\/a> on the grounds that Plaintiff’s affidavit<\/a> was deficient for service by publication.  Plaintiff’s attorney then moved to amend<\/a> his affidavit<\/a> to add additional information<\/a> regarding a conversation with Defendant<\/a>’s insurance agent<\/a> who stated he did not know of defendant<\/a>’s whereabouts.<\/span><\/p>\n

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

Superior Court dismissed the action<\/a> for inadequate service of process.  Court of Appeals held that service was ineffectively made, affirms the judgment<\/a>, and the case<\/a> was dismissed.<\/span><\/p>\n

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

    \n
  1. Is strict compliance required for statutes authorizing service by means other than personal service<\/a>?  Yes<\/strong><\/span><\/li>\n
  2. Is a mere search of telephone listings and an attempt to serve Defendant<\/a> at her old residence considered a diligent effort to locate Defendant<\/a>?  No<\/strong><\/span><\/li>\n<\/ol>\n

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

    Statutes authorizing service by means other than personal service<\/a> (constructive and substituted service) require strict compliance.<\/span><\/p>\n

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

    The original motion<\/a> and affidavit<\/a> requesting leave to serve by publication did not comply with RCW 4.28.100<\/a><\/span><\/p>\n

    The record shows that at the time of the affidavit<\/a> and proposed amended affidavit<\/a>, Defendant<\/a> resided in Kennewick and at no time sought to conceal her residence. Furthermore, the record raises a question regarding the diligence<\/a> with which the process server and Plaintiff sought to locate Defendant<\/a>. None of the affidavits indicate the accident report was checked by the process server or plaintiff. There were no efforts made to contact any hairdressing establishments in Kennewick, nor was the tip from the neighbors ever investigated.<\/span><\/p>\n

    A mere search of the telephone listings and an attempt to serve Defendant<\/a> at her old residence, in light of the facts, is an inadequate showing of due diligence<\/a> to support service by publication.<\/span><\/p>\n

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

    The process server had information<\/a> available which might have either found the defendant<\/a> or helped to establish due diligence<\/a>. But the information<\/a> was not used.<\/span><\/p>\n

    While it is possible that the process server was never given a copy of the accident report, which contained this information<\/a>, a professional process server will ask for this information<\/a>. If you are working on an auto tort service then be sure to ask for a copy of the accident report. Do so in writing and make your request a permanent copy of your records.<\/span><\/p>\n

    Beware of this language: “After due and diligent search and inquiry…I have been unable to find Defendant<\/a> within this County<\/a> and State.<\/strong><\/em>” It is commonly used as boiler plate wording and often means much more than what was actually done. If a process server has not conducted a “due and diligent search and inquiry<\/strong><\/em>” then he or she should not testify as to having done so. A professional server will refuse to sign documents containing such language unless he or her work truly included “due and diligent search and inquiry.”<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

    Summary Parkash v. Perry, 40 Wn. App. 849, 700 P.2d 1201 (1985). Facts Plaintiff Parkash filed a summons and complaint<\/a> against Defendant<\/a> Perry for a claim<\/a> arising from a motor vehicle accident. At the time of the accident, Perry resided at 1101 E. 7th Ave. in Kennewick.  In addition, her driver’s license listed her parent’s […]<\/p>\n","protected":false},"author":3,"featured_media":0,"parent":2213,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-2221","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2221","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=2221"}],"version-history":[{"count":0,"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2221\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2213"}],"wp:attachment":[{"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/media?parent=2221"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}