Our law firm was not involved in the personal injury lawsuit discussed in this article.
Typically a few times in any given year the Washington Court of Appeals upholds the dismissal of a handful of personal injury cases because of a failure to bring the case prior to the expiration of the statute of limitations.
The fact pattern is very familiar. The personal injury plaintiff’s attorney has the defendant served just before the running of the statute of limitations. The plaintiff’s attorney realizes only after the statute has run that there is an issue with service. It is too late to do anything to prefect service, so the plaintiff attorney argues in the trial court and on appeal that service was really good and/or or the defendant somehow waived the issue. The personal injury plaintiff usually loses in both forums.
Recently this scenario played out again in the Washington Court of Appeals.[1] The plaintiffs (through their attorney, presumably) filed a personal injury lawsuit exactly one week before the statute of limitations was to run. This tolled the statute for 90 days per statute.
Then about sixty days later the summons and complaint was served. The plaintiff amended the original complaint and served an amended summons and complaint.
The problem is that both sets of documents were served not where the defendant lived, but where the defendant’s brother lived. The defendant did not at the time of attempted service and had never lived in the brother’s home. It is quite clear under Washington law that this is not proper service.
By the time this was discovered by the plaintiffs it was too late to serve the summons and complaint.
This patter is not uncommon, judging by how many statute of limitations cases are appealed by personal injury plaintiffs, usually unsuccessfully. The details vary, but usually involve waiting to the last minute to file and serve the summons and complaint. The obvious risk is just what happened in this case and others like it – by the time the personal injury plaintiff attorney realizes there is a problem with service the statute has run and the case is lost, no matter how meritorious the case may have been.
This type of procrastination will often raise legal malpractice and ethics issues.