Opinion
No. 60551-8-I.
September 2, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 03-2-13022-1, Larry E. McKeeman, J., entered August 22, 2007.
In this personal injury lawsuit arising from a motor vehicle accident, Patrick Gearin's summons and complaint against Ralph and Catherine McMillan was timely filed and served on Catherine McMillan. At that time, Gearin did not know that Ralph McMillan had died. Ralph McMillan's insurer State Farm argued that the claim was time barred because Gearin failed to timely serve Ralph McMillan's estate.
Throughout the proceedings, State Farm's attorneys represented Ralph and Catherine McMillan and later the estate of Ralph McMillan. We also note that Gearin stipulated to limit his recovery against the estate of Ralph McMillan based on the State Farm policy limits. Accordingly, this opinion refers to the appellant as "State Farm."
Because the trial court properly allowed Gearin to amend his complaint under CR 15(c) to substitute Ralph McMillan's estate and to serve the personal representative, we affirm.
FACTS
The facts are undisputed. On November 28, 2000, Patrick Gearin was injured when Ralph McMillan's van collided with the truck Gearin was driving. McMillan was insured for liability by State Farm. Shortly after the accident, Gearin notified both his insurer and State Farm about the accident. He negotiated with State Farm for several years, but was unable to resolve his claim.
Consequently, on November 24, 2003, Gearin filed a personal injury complaint naming Ralph McMillan and Jane Doe, husband and wife. On December 3, 2003, Gearin served Catherine McMillan with two copies of the summons and complaint one for her and one for her husband. But unbeknownst to Gearin, Ralph McMillan had died of unrelated causes on September 11, 2001.
On December 12, 2003, State Farm filed a notice of appearance stating that Ralph McMillan was deceased. This was the first time that State Farm notified Gearin about McMillan's death. On March 15, 2004, in its answer to Gearin's complaint, State Farm stated that Ralph McMillan was not a proper party to the lawsuit. No probate action had been opened for Ralph McMillan at that time.
Catherine McMillan died on May 6, 2004, and Joyce Louise Kathol was appointed personal representative of her estate. State Farm notified Gearin about Catherine McMillan's death in interrogatory answers on August 2, 2004. On November 29, 2004, Gearin wrote a letter to Kathol seeking to pursue a claim against the estate of Catherine McMillan. On January 5, 2005, Kathol notified Gearin that his claim was rejected.
Gearin, who had been proceeding pro se, subsequently retained counsel.
On May 30, 2006, State Farm filed its first motion for summary judgment, arguing that Gearin's lawsuit should be dismissed because no proper party had been named and the three-year statute of limitations barred Gearin's lawsuit. In response, Gearin moved to substitute the personal representative of the estate of Ralph McMillan as the proper party defendant.
Gearin's motion initially requested substitution of the estate of Catherine McMillan, but Gearin's response to State Farm's motion for summary judgment requested substitution of the estate of Ralph McMillan, and the trial court's order accurately reflected substitution of the estate of Ralph McMillan.
The trial court heard both motions on June 27, 2006. In its September 6, 2006 order, the trial court denied State Farm's motion for summary judgment dismissal as to Ralph McMillan, granted State Farm's summary judgment dismissal with prejudice as to Catherine McMillan, and granted Gearin's motion to amend his complaint to substitute the estate of Ralph McMillan and serve the estate's personal representative. The court's civil minute entry shows that Gearin's motion to amend his complaint was "granted on the condition the sole exposure is limited to policy limits." Accordingly, the order specified, "that the estate of Ralph McMillan shall not be liable for any amounts above the limits of the subject State Farm Insurance Policy limits."
Gearin stipulated to limit his recovery to the State Farm liability policy limits.
On February 22, 2007, State Farm filed a second motion for summary judgment, contending that Gearin's lawsuit should be dismissed because he failed to amend his complaint to name the estate of Ralph McMillan or to serve the personal representative, even after the court granted his motion to do so. On March 8, 2007, Gearin filed a probate action for Ralph McMillan's estate, and the court appointed Geoffrey Jones as personal representative. On March 9, 2007, Gearin filed an amended complaint naming "Jeff Jones, as Personal Representative of the Estate of Ralph McMillan" as defendant. After completing these actions, Gearin responded to State's Farm's motion for summary judgment. He argued that the trial court's order placed no time limits on the process of initiating a probate and serving a copy of the amended complaint on the court-appointed personal representative and that State Farm suffered no prejudice.
In its order appointing the personal representative, the court concluded, "At the time of filing the petition herein it was not known whether the decedent died intestate or had a valid will. Petitioner is the attorney for an injured party who is covered by the automobile liability insurance policy owned by decedent at the time of an accident on November 28, 2000.
"Petitioner seeks the appointment of a Personal Representative and knows of no other potential claimants as creditors. The estate is presumably solvent, but its solvency is irrelevant to the purpose of this probate so long as its only purpose is to access the insurance coverage of the automobile liability insurance policy insuring the decedent at the time of the November 28, 200 accident.
"This probate was filed for the sole purpose of serving a pending lawsuit on the Personal Representative, once appointed," the only entity authorized by statute to so serve. The appointed Personal Representative should be allowed to serve without bond with authority to do nothing but notify the deceased's automobile liability carrier when the personal representative is served, until further order of this court."
Jones accepted service of the amended complaint on March 16, 2007. He subsequently signed the oath of personal representative on March 19, 2007, and filed it with the court on March 22, 2007. No bond was required.
On April 3, 2007, the trial court denied State Farm's second motion for summary judgment. The trial began on April 30, 2007. State Farm moved to dismiss the lawsuit for lack of jurisdiction, arguing that Jones had no authority to act as personal representative when he accepted service of process. The trial court deferred ruling on the motion. The following day, May 1, 2007, Jones executed a new acceptance of service.
On May 7, 2007, the jury returned a verdict in favor of Gearin in the amount of $298,059.10, and the trial court denied State Farm's motion to dismiss the lawsuit for lack of jurisdiction. The court entered judgment on the verdict in the amount of $100,000, based on the State Farm policy liability limits.
State Farm appealed.
ANALYSIS
State Farm challenges both of the trial court's orders denying summary judgment dismissal of Ralph McMillan. The facts are undisputed, and the only issues are questions of law. Our review is de novo. Williams-Moore v. Estate of Shaw, 122 Wn. App. 871, 876, 96 P.3d 433 (2004).
State Farm also challenges the trial court's order granting Gearin's motion to amend his complaint to substitute the estate of Ralph McMillan. A trial court's rulings under CR 15(c) are not disturbed on appeal absent a manifest abuse of discretion. Nepstad v. Beasley, 77 Wn. App. 459, 468, 892 P.2d 110 (1995). A trial court abuses its discretion when discretion is exercised on untenable grounds or for untenable reasons. Coggle v. Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990).
Statute of Limitations
State Farm argues that the judgment should be vacated and Gearin's lawsuit should be dismissed because he failed to serve the estate of Ralph McMillan prior to the expiration of the statute of limitations.
The statute of limitations for personal injury actions is three years. RCW 4.16.080(2); Fisher v. City of Tacoma, 70 Wn. App. 635, 636, 855 P.2d 299 (1993). If a plaintiff files a summons and complaint within the three-year period, the statute is tolled 90 days to allow the plaintiff to serve at least one defendant. RCW 4.16.170; Caouette v. Martinez, 71 Wn. App. 69, 73, 856 P.2d 725 (1993). The effect of serving one defendant in a multi-defendant case is to stop the statute of limitations from running for unserved defendants. Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 329, 815 P.2d 781 (1991). But "[a] plaintiff who fails to serve each defendant risks losing the right to proceed against unserved defendants if the served defendant is dismissed. . . ." Id. at 329-30 (citing Fittro v. Alcombrack, 23 Wn. App. 178, 180, 596 P.2d 665 (1979)).
State Farm argues that leaving two copies of the summons and complaint with Catherine McMillan was insufficient to obtain service on Ralph McMillan or his estate because RCW 4.20.046 specifies that all claims against a decedent must be made against the personal representative of the estate. Although Catherine McMillan was served within the 90-day tolling period, she was dismissed from the lawsuit with prejudice on September 6, 2006. On that date, Catherine McMillan was the only defendant who had been validly served. Therefore, according to State Farm, the lawsuit should have been dismissed as to all parties because no properly served defendants remained and the statute of limitations had expired.
State Farm relies primarily on Alcombrack. In that case, Fittro was injured in an accident with Alcombrack, who subsequently died. Fittro timely served the estate's personal representative with a complaint naming the estate as well as Alcombrack's employer, State Farm. She did not, however, serve State Farm until more than three years after the accident and after her suit against the estate of Alcombrack had been dismissed. The court granted summary judgment to State Farm, finding that the action was barred by the statute of limitations. Id. at 179. Fittro argued on appeal that by timely filing the complaint and serving one named defendant, the statute of limitations was tolled indefinitely as to the unserved defendant. The appellate court rejected this argument.
When an action is dismissed, the statute of limitations continues to run as though the action had never been brought. Because the action against Alcombrack was dismissed before State Farm was served, the action against Alcombrack no longer tolled the statute of limitations either as to Alcombrack or as to State Farm. Fittro's failure to serve State Farm within the 3-year statutory period bars her claim.
Id. at 180 (internal citations omitted).
Alcombrack is distinguishable. That case did not involve amendment and relation back under CR 15(c). Here, Gearin timely filed the summons and complaint prior to the expiration of the statute of limitations and then timely served two copies on Catherine McMillan within the 90-day statutory period, not knowing that Ralph McMillan had died. Gearin later moved to substitute the estate of Ralph McMillan as the proper defendant. State Farm sought summary judgment dismissal against both Ralph and Catherine McMillan, asserting that no proper party had been served and the statute of limitations had run. In a single order, the trial court denied summary judgment as to Ralph McMillan, granted Gearin's motion for leave to amend his complaint to substitute the estate of Ralph McMillan as the proper party defendant and to serve the personal representative, and dismissed Catherine McMillan.
State Farm contends that dismissal of Catherine McMillan mandates dismissal of the entire lawsuit because no properly served parties remained. But applying the rule of Alcombrack here would render meaningless the trial court's order granting leave to amend the complaint and serve the personal representative. We reject this contention.
As Gearin correctly points out, the principal issue in this case is whether the trial court properly granted Gearin's motion for leave to amend the complaint to substitute the estate of Ralph McMillan as the proper party defendant under CR 15(c) and whether the amended complaint related back to the date the original complaint was filed. We hold that it did.
Gearin argued that the trial court's ruling was proper under both CR 15(c) and CR 17(a). But the latter rule relates to the identification of plaintiffs, not defendants. K. Tegland, 14 Washington Practice, Civil Procedure § 11.3 (1st ed. 2003). Therefore, it does not apply.
CR 15(c), "Relation Back of Amendments," provides,
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
CR 15(c) "`is to be liberally construed on the side of allowance of relation back of the amendment where the opposing party will be put to no disadvantage. Modern rules of procedure are intended to allow the court to reach the merits, as opposed to disposition on technical niceties.'" Craig v. Ludy, 95 Wn. App. 715, 718-19, 976 P.2d 1248 (1999) (quoting Lind v. Frick, 15 Wn. App. 614, 617, 550 P.2d 709 (1976)). "An amendment merely changing the capacity in which a party appears will relate back to the date of the original complaint." Id. at 719. But any delay in substituting a party that is the result of inexcusable neglect or is a conscious decision or tactic will not support an amendment under CR 15(c). Id. at 719.
Particularly instructive is Schwartz v. Douglas, 98 Wn. App. 836, 991 P.2d 665 (2000). Schwartz was injured in an automobile accident with Mr. Douglas. Not realizing that Mr. Douglas had died, the Schwartzes filed a complaint and served two copies on Mrs. Douglas shortly before the statute of limitations ran. Id. at 837. When Mr. Douglas's insurer eventually disclosed that he had died, the Schwartzes moved to appoint a special administrator and then served an amended complaint on the estate of Mr. Douglas. Id. at 838. Mrs. Douglas moved for summary judgment, arguing that the Schwartzes failed to file their complaint against the estate within the three-year statute of limitations. The trial court dismissed the Schwartzes' claim, and they appealed. The Court of Appeals reversed, holding that the amended complaint related back to the date the original complaint was filed. Id. at 839. The court noted that the amended complaint arose out of the same occurrence as the original complaint, the estate had imputed notice of the claim, and there was no prejudice to the estate or the insurer. Id. at 840-41.
Similarly, in Craig v. Ludy, 95 Wn. App. 715, Craig was involved in an accident with Ludy. Not knowing that Ludy had died, Craig filed a complaint within the three-year period and served Ludy through the nonresident motorist statute. Id. at 717. Ludy's insurer moved to dismiss on the ground that Ludy was not a proper party, and Craig moved to amend the complaint to add Ludy's estate as a defendant. The trial court denied Craig's motion and dismissed the case, ruling that service of process on Ludy via the nonresident motorist statute was invalid and that the amendment would not relate back to the date the complaint was filed. Id. The appellate court reversed, holding that all of the requirements of CR 15(c) were satisfied where the amended complaint arose out of the same occurrence as the original complaint and notice to the insurer could be imputed to the estate. Id. at 719-20.
And in LaRue v. Harris, 128 Wn. App. 460, 115 P.3d 1077 (2005), LaRue timely filed a complaint naming Harris as defendant, but subsequently discovered that Harris had died. Within the three-years-plus-ninety-day period, LaRue filed and served an amended complaint naming the estate of Harris. The trial court ruled that the amended complaint related back to the date of the original complaint. Id. at 463. The estate appealed, arguing that the amended complaint cannot relate back unless the original complaint was "perfected," meaning that it was filed and served within three years plus 90 days. Id. at 464. The appellate court affirmed, noting that CR 15(c) requires that the amended complaint arise out of the same occurrence but says nothing about "perfecting" the original complaint. Id. at 465.
Here, Gearin has satisfied the basic requirements of CR 15(c). First, the amended complaint arose out of the same occurrence and the only change was to substitute the estate as the proper party. Second, State Farm had actual notice of Gearin's personal injury since shortly after the accident. There was no prejudice to State Farm because it would have had to defend against the claim whether or not Ralph McMillan had died. See Craig, 95 Wn. App. at 720. Nor was there prejudice to the estate of Ralph McMillan because Gearin stipulated and the trial court's order expressly provided that the estate would not be liable for any amount above the limits of the State Farm insurance policy. Notice of the action may be imputed to the estate through its community of interest with its insurer State Farm. Craig, 95 Wn. App. at 720. Third, at the time the summons and complaint were filed and served, State Farm knew or should have known that Gearin did not originally bring his claim against the proper party because he was unaware of Ralph McMillan's death.
Moreover, prior to taking Gearin's deposition, State Farm's attorney stated, "I represent the estate of Ralph McMillan and the estate of his wife as well." Gearin stated that this led him to believe that the estate was a defendant.
State Farm argues that Young v. Estate of Snell, 134 Wn.2d 267, 948 P.2d 1291 (1997) and Banzeruk v. Estate of Howitz, 132 Wn. App. 942, 135 P.3d 512 (2006) mandate dismissal of Gearin's action. But neither of these cases involved substitution of party and relation back under CR 15(c). In Young, the plaintiff made no attempt to serve the defendant or his estate within the three-year-plus-ninety-day statutory period. And in Banzeruk, the court held that filing an amended complaint did not extend the time for service. Here, in contrast, Gearin tolled the statute of limitations by filing his summons and complaint within the three-year period as required by RCW 4.16.080(2). He served two copies of the summons and complaint on Catherine McMillan within the 90-day grace period provided by RCW 4.16.170, not knowing that Ralph McMillan had died. Gearin is not arguing that the amended complaint extended the limitations period, but rather that substitution and relation back were justified where he timely filed and served the original complaint on the McMillans.
State Farm further argues that relation back was improper because Gearin's delay in moving to amend the complaint and serve the personal representative constituted inexcusable neglect. But State Farm advanced this argument for the first time in its reply brief. "An issue raised and argued for the first time in a reply brief is too late to warrant consideration." Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). We decline to address it.
Service of Process
State Farm argues that Geoffrey Jones, the personal representative of the estate of Ralph McMillan, lacked authority to accept service of process on March 16, 2007. RCW 11.28.170 provides, "Before letters testamentary or of administration are issued, each personal representative . . . must take and subscribe an oath, . . . . which oath must be filed in the cause." Jones did not sign the oath of personal representative until March 19, 2007, and did not file it until March 22, 2007. As a result, he was not authorized to act as the personal representative when he accepted service. On the day that trial commenced, April 30, 2007, Gearin had not legally served the estate. Therefore, according to State Farm, the trial court lacked personal jurisdiction and should have dismissed the case.
Gearin does not dispute State Farm's assertion that Jones lacked authority to accept service of process on March 16, 2007. But Gearin contends that any alleged jurisdictional defect was cured when Jones executed a new acceptance of service on May 1, 2007 "the second day of trial. When the underlying facts are not disputed, a trial court's ruling on personal jurisdiction is a question of law reviewed de novo. Precision ab. Plastics, Inc. v. Micro Test, Inc., 96 Wn. App. 721, 725, 981 P.2d 454 (1999).
State Farm argues that Williams-Moore v. Estate of Shaw, 122 Wn. App. 871, 96 P.3d 433 (2004) mandates dismissal of Gearin's lawsuit. Williams-Moore filed a lawsuit against Shaw and later learned that he had died. The court granted Williams-Moore's petition to open a probate and appointed her as personal representative of Shaw's estate. Id. at 873. Williams-Moore then filed an amended complaint and accepted service of process for the estate prior to filing her court-ordered bond and her oath of personal representative. Id. at 874. Williams-Moore subsequently filed her oath and bond. The estate filed a petition to remove Williams-Moore as personal representative and declare her appointment void. Williams-Moore stipulated to the appointment of another personal representative, but argued that she had no conflict of interest and that she had been properly appointed. Id. at 874-75. The trial court denied the motion, finding that the court's approval of Williams-Moore's bond related back to the date of her initial appointment. Id. at 875.
The dispositive question on appeal was whether Williams-Moore was qualified to act as the personal representative of Shaw's estate when she accepted service of process even though she had not yet filed her bond or oath. If so, her personal injury lawsuit would be timely under the three-year statute of limitations. But according to the estate of Shaw, if Williams-Moore's acceptance of service was invalid, her lawsuit would be barred by the statute of limitations. Id. at 876. This court held that CR 15(c), CR 17(a), and the principle of equitable tolling did not excuse Williams-Moore's failure to file her bond and oath prior to accepting service. Id. at 878-79. Because her delayed filings did not relate back to the date of her initial appointment, Williams-Moore was not qualified to act as personal representative when she accepted service of process. Accordingly, the court reversed and remanded for further proceedings. Id. Williams-Moore does not mandate dismissal of Gearin's lawsuit. That case turned on whether the delayed filings related back to the initial date of appointment, which was crucial to the estate's contention that the lawsuit was barred by the statute of limitations. Personal jurisdiction was not at issue. Here, in contrast, State Farm's argument does not turn on whether the date of filing the oath related back to the date of appointment. Rather, State Farm argues that the lawsuit should be dismissed because the trial court lacked personal jurisdiction on the day the trial commenced.
Moreover, the plaintiff in Williams-Moore was required to post a bond, whereas Gearin was not.
We disagree. Proper service of process "is essential to invoke personal jurisdiction over a party. . . ." In re Marriage of Markowski, 50 Wn. App. 633, 635-36, 749 P.2d 754 (1988). When a court lacks personal jurisdiction against a party, any judgment entered against that party is void. Dobbins v. Mendoza, 88 Wn. App. 862, 870, 947 P.2d 1229 (1997). Here, there is no doubt that Jones was qualified to act as personal representative when he executed a new acceptance of service on the second day of trial. Therefore, the defect was cured, and the court had jurisdiction at the time the judgment was entered.
In sum, we hold that the trial court did not abuse its discretion in granting Gearin's motion to amend his complaint to substitute the estate of Ralph McMillan and that the amendment related back to the date of service on Ralph and Catherine McMillan. The trial court had jurisdiction when the verdict was entered. We affirm.
WE CONCUR: