From the Desk of Partner Gordon C. Klug:
When William Shakespeare wrote that line, he may as well have had Washington’s substitute service statute in mind. In an unpublished opinion, a Washington Court of Appeal looked at a Plaintiff’s month-long delay to mail notice to a Defendant’s last known residential address to determine if the Plaintiff was in strict compliance with Washington’s nonresidential motorist act.
In this case, a Washington Court of Appeals’ analysis turned on the interpretation of the word “forthwith” as contained in the State’s nonresidential motorist statute. The Court held that because Plaintiff had no explanation for his delayed notice, he was not strictly compliant with the statute, and thus summary judgment for the Defendant was appropriate.
John Rios v. Usiel Gonzalez & Jane Doe Gonzalez, 55434-8-II, 2022 WL 910161 (Wash. Ct. App. Mar. 29, 2022).
On May 1, 2017, John Rios and Usiel Gonzalez were involved in a motor vehicle collision. Shortly before the three-year statute of limitations was about to expire, Rios filed suit against Gonzalez and attempted to personally serve him with the summons and complaint at the address listed on the police report. Plaintiff’s counsel then discovered that Gonzalez no longer lived at that address, and he was unable to locate a new address.
On July 16, 2020, Rios mailed copies of the summons and the complaint to the secretary of state to effectuate substitute service under RCW 46.64.040. On July 24, Rios received confirmation from the secretary of state that service of process was received by their office. Twenty-six days after mailing service to the secretary of state, Rios mailed the notice of service to the secretary of state, along with other required documents, to Gonzalez’s last known address.
Gonzalez got wind of the suit and retained a lawyer who filed a notice of appearance with the trial court. That attorney also filed a motion for summary judgment arguing that Rios failed to timely serve notice of his lawsuit on Mr. Gonzalez. The Superior Court granted the motion and Rios appealed that decision.
Washington’s nonresident motorist act, RCW 46.64.040, states that substitute service on the secretary of state is allowed when the person intended to be served is not a resident of, or cannot be found within, Washington. The statute also details the requirements for effecting substitute service, which includes “notice of such service and a copy of the summons or process is forthwith sent by registered mail with return receipt requested by plaintiff to the defendant at the last known address of the said defendant…” (Emphasis added).
The Washington Supreme Court held that “strict compliance with the detailed procedures for substitute service of process set forth in RCW 46.64.040” is required. (Emphasis added). Martin v. Triol, 121 Wn.2d 135, 144,847 P.2d 471 (1993). Any failure to adhere to the statute’s procedures can render service null.
The Court’s analysis focused on the definition of the word “forthwith”. The Court noted that the dictionary defines it to mean “without delay”; “within a reasonable time”; “immediately”. Rios argued that the term forthwith in RCW 46.64.040 should be construed to mean “within a reasonable time under the circumstances” while Gonzalez argued that it should be interpreted to mean immediately or without delay.
The Court, without deciding on the definition, began the analysis by assuming that Rios was correct and that forthwith meant within a reasonable time under the circumstances. The Court quickly pointed out that under that assumption, Rios still failed to comply with the statute. Rios mailed notice to Gonzalez almost a month after the service of process was sent to the secretary of state, and about two weeks after Rios received confirmation of service on the secretary of state. Rios provided no reason for this delay and even acknowledged that notice could have been mailed sooner.
The Court held that taking a month to mail notice that could have been mailed the same day as service was mailed to the secretary of state was not within a reasonable time. Rios then argued that because Gonzalez was eventually notified and was not prejudiced, notice was proper. The Court disagreed with that argument. They stated that using the end result of whether notice was achieved would be relying on a substantial, and not strict, compliance with the statute. Strict compliance is what is necessary to ensure that notice comports with due process. Reasonableness of a delay must be determined by the reason for the delay and not whether the defendant ultimately received notice.
The Big Picture:
A plaintiff must be strictly compliant with Washington’s nonresident motorist statute when effecting substitute service of process. Strict compliance requires that notice of service be forthwith sent to the defendant after sending a copy of the summons and complaint to the secretary of state’s office. While the Court never defined the term forthwith, it did highlight that a month delay in service was not appropriate and thus service of process on Mr. Gonzalez was nullified. As the three-year statute of limitations had then since expired, the Plaintiff could no longer refile his lawsuit.