{"id":2264,"date":"2018-04-08T12:33:31","date_gmt":"2018-04-08T20:33:31","guid":{"rendered":"http:\/\/trainingpips.com\/?page_id=2264"},"modified":"2019-04-18T03:25:25","modified_gmt":"2019-04-18T11:25:25","slug":"ps-102-chapter-8-article-2-service-on-an-entity-lybbert-vs-grant-county","status":"publish","type":"page","link":"https:\/\/www.trainingpips.com\/index.php\/ps-102-a-course-outline\/ps-102-understanding-case-summaries\/ps-102-chapter-8-an-introduction-to-service-on-an-entity-case-law\/ps-102-chapter-8-article-2-service-on-an-entity-lybbert-vs-grant-county\/","title":{"rendered":"PS 102 – Chapter 8 – Article 2 – Service on an Entity – Lybbert vs Grant County"},"content":{"rendered":"

Supreme Court
\n<\/strong>67805-7
\n<\/strong>Kay Lybbert, et al<\/a> v Grant County<\/a><\/strong><\/span><\/p>\n

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

The Lybberts claim<\/a> that they were both injured in early 1993 when their automobile struck a hole in a Grant County<\/a> road. On August 30, 1995, the Lybberts filed a summons and complaint<\/a> in the Adams County<\/a> Superior Court in which they sought damages<\/a> from the County<\/a> for the injuries they contend they sustained as a consequence of the County<\/a>’s alleged failure to maintain its roadway in a safe condition<\/a>.<\/span><\/p>\n

Pursuant to RCW 4.28.080(1)<\/a>, the Lybberts were required to serve their summons and complaint<\/a> on the County<\/a> auditor. They mistakenly served process on the administrative assistant to the County<\/a> commissioners. Nonetheless, a few days after the “service,” counsel for the County<\/a> filed a notice<\/a> of appearance<\/a> in which it was indicated that the County<\/a> was not “waiving objections to improper service or jurisdiction<\/a>.”<\/span><\/p>\n

For the next nine months the County<\/a> acted as if it were preparing to litigate the merits of the case<\/a> that the Lybberts were attempting to mount against it. For example, shortly after filing its notice<\/a> of appearance<\/a> the County<\/a> served the Lybberts with interrogatories<\/a>, requests for production, and a request for a statement setting forth general and special damages<\/a>. In this discovery<\/a> effort, the County<\/a> made no inquiry regarding the sufficiency of the service of process.<\/span><\/p>\n

The County<\/a> also associated counsel from an outside law<\/a> firm and duly filed a “notice<\/a> of association of counsel.” Thereafter, one of the attorneys for the County<\/a> had conversations over the telephone with the Lybberts’ attorney about insurance coverage and potential mediation<\/a>. During these contacts, the attorney for the County<\/a> did not make any mention of an issue surrounding sufficiency of the service of process. The Lybberts’ attorney claims that one of the attorneys for the County<\/a> told him that the County<\/a> was working on its answer<\/a> to the complaint<\/a> and that it would be provided “as soon as possible.”<\/span><\/p>\n

On February 29, 1996, the Lybberts’ attorney served one of the attorneys for the County<\/a> with interrogatories<\/a> and a request for production of documents. One interrogatory asked the County<\/a> whether it would be relying on the affirmative defense of insufficient service of process. In April of 1996, a County<\/a> sheriff’s detective, ostensibly acting on behalf of the County<\/a>, contacted the Lybberts’ attorney in order to ascertain what type of information<\/a> the Lybberts were requesting in their interrogatories<\/a>. According to an affidavit<\/a> from the Lybberts’ attorney, the detective said that the County<\/a> would fully cooperate in providing all of the requested discovery<\/a> information<\/a>.<\/span><\/p>\n

On May<\/a> 6, 1996, the Lybberts responded to the County<\/a>’s interrogatories<\/a>, as well as to its requests for production and statement of damages<\/a>. On June 21, 1996, the County<\/a> filed its answer<\/a> to the Lybberts’ complaint<\/a> and asserted, for the first time, the affirmative defense of insufficient service of process. The County<\/a> then filed a motion<\/a> for summary judgment<\/a>, based on the alleged insufficient service of process, and requested that the case<\/a> against it be dismissed on the ground that the applicable statute of limitations<\/a> had run on the Lybberts’ claim<\/a>. The trial court granted the County<\/a>’s motion<\/a> and dismissed the Lybberts’ complaint<\/a> with prejudice. The Lybberts appealed to Division Three of the Court of Appeals. The Court of Appeals reversed the trial court, holding that the County<\/a> waived the defense of insufficient service of process and was equitably estopped from asserting it. The Supreme Court granted the County<\/a>’s petition<\/a> for review.<\/span><\/p>\n

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

    \n
  1. When serving a county<\/a> with a summons, must the papers be left with the Auditor, a deputy Auditor, or the designated agent<\/a> if on a charter<\/a> county<\/a>? Yes<\/strong><\/span><\/li>\n
  2. Did the Defendant<\/a> waive its right to raise the issue of insufficient service of process through the inconsistent and dilatory conduct<\/a> of its representatives? Yes<\/strong><\/span><\/li>\n<\/ol>\n

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

    The Statute of Limitations<\/a> in auto accident cases is 3 years.<\/span>
    \nThe Plaintiff mistakenly served their Summons and     Complaint<\/a> on the county<\/a> by leaving the documents with the Administrative Assistant to the County<\/a> Commissioners.<\/span>
    \nDuring 8 months of communications and the sharing of documents between the parties, the     Defendant<\/a> never brought up the issue of insufficient service of process.<\/span><\/p>\n

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

    After reviewing the evidence<\/a> provided by the Lybberts, the court established that the county<\/a> was not estopped from asserting a defense of insufficient service of process. However, that did not mean, that the defense was available to the County<\/a> if it had been waived. This was the issue to which the court turned.<\/span><\/p>\n

    The Lybberts, citing the common law<\/a> doctrine of waiver, claimed that the County<\/a> was precluded from asserting the defense of insufficient service of process because it acted in an inconsistent and dilatory manner. Under the doctrine, affirmative defenses such as insufficient service of process may<\/a>, in certain circumstances, be considered to have been waived by a defendant<\/a> as a matter of law<\/a>. The waiver can occur in two ways. It can occur if the defendant<\/a>’s assertion of the defense is inconsistent with the defendant<\/a>’s previous behavior. It can also occur if the defendant<\/a>’s counsel has been dilatory in asserting the defense.<\/span><\/p>\n

    In applying the doctrine, the court first observed that there were no material facts in dispute. It was, therefore, appropriate for the court to apply the doctrine of waiver to the undisputed material facts to determine if the County<\/a> was precluded from asserting the defense of insufficient service of process in this case<\/a>. The issue here, was whether the defendants waived the defense by participating in discovery<\/a> and failing to assert the defense prior to the expiration of the statute of limitations<\/a>.<\/span><\/p>\n

    It was noted that the mere act of engaging in discovery<\/a> “is not always tantamount to conduct<\/a> inconsistent with a later assertion of the defense of insufficient service.” This is so because in some circumstances it may<\/a> be entirely appropriate for a party<\/a> to engage in discovery<\/a> to determine if the facts exist to support a defense of insufficient service.<\/span><\/p>\n

    The court noted that the County<\/a>’s discovery<\/a> efforts were not aimed at determining whether there were facts that supported the defense of insufficient service of process. Indeed, because the process server’s affidavit<\/a> was filed by the plaintiffs, the County<\/a> knew or should have known that the defense of insufficient service of process was available to it. Moreover, the County<\/a> did more than just undertake discovery<\/a>. Of particular significance was the fact<\/a> that the Lybberts served the County<\/a> with interrogatories<\/a> that were designed to ascertain whether the defendant<\/a> was going to rely on the defense of insufficient service of process. Had the County<\/a> timely responded to these interrogatories<\/a>, the Lybberts would have had several days to cure the defective service.<\/span><\/p>\n

    The County<\/a> failed to preserve the defense by pleading<\/a> it in its answer<\/a> or other responsive pleading<\/a> before proceeding with discovery<\/a>. Instead, it engaged in discovery<\/a> over the course of several months and then, after the statute of limitations<\/a> had apparently extinguished the claim<\/a> against it, it asserted the defense.<\/span><\/p>\n

    The court concluded that the County<\/a> was not equitably estopped from asserting the defense of insufficient service of process. It did, however, by the actions of its representatives waive the defense. The court, therefore, affirmed the result reached by the Court of Appeals.<\/span><\/p>\n

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

    This case<\/a> is unique in that the original service on the County<\/a> was upheld despite the error made by the process server. It should be known that there are certain instances when a bad service will not be thrown out of court or have a dire effect on the case<\/a>, but it should also be known that these are not decisions for the process server to make. As the professional, it is the process server’s job to ensure that every service is done correctly. In this instance the process server was exceptionally lucky in avoiding having the service invalidated by the court.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

    Supreme Court 67805-7 Kay Lybbert, et al<\/a> v Grant County<\/a> Facts The Lybberts claim<\/a> that they were both injured in early 1993 when their automobile struck a hole in a Grant County<\/a> road. On August 30, 1995, the Lybberts filed a summons and complaint<\/a> in the Adams County<\/a> Superior Court in which they sought damages<\/a> […]<\/p>\n","protected":false},"author":3,"featured_media":0,"parent":2260,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-2264","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2264","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=2264"}],"version-history":[{"count":0,"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2264\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2260"}],"wp:attachment":[{"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/media?parent=2264"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}