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Washington court dismisses personal injury case because plaintiff's attorney did not sign the summons

Posted by Brian C. Zuanich | Sep 25, 2019 | 0 Comments

Losing your personal injury case can be a devastating experience. Losing your personal case because your own attorney made a mistake is even worse. 

Losing your personal injury case because your attorney forgot to sign a document has to be about the worse thing possible.

This is what happened in Walker v. Orkin, LLC, a case decided by the Court of Appeals this past week.

The facts in Walker were pretty irrelevant.

On August 8, 2014, Walker was injured in a car crash. On July 28, 2017, Walker filed a personal injury lawsuit against the Orkin corporation.

In Washington, the filing of a complaint tolls (i.e. pauses or suspends) the 3-year statute of limitations period for filing a personal injury lawsuit. Walker's filing of the complaint gave him an additional 90 days (until October 26, 2017) to serve Orkin with the summons and complaint. If that wasn't accomplished by October 26, 2017, the clock starts up again. 

In this case, Walker filed the complaint 11 days before the 3-year deadline.

On August 1, 2017 Walker's attorney served the Orkin corporation with a copy of the summons and complaint, but (and this is a big BUT) the summons was not signed. Under CR 4, the summons must be signed by either the plaintiff or the plaintiff's attorney.

On September 7, Orkin answered the complaint, denying liability. The company also wrote in its answer that Walker had “failed to serve process” under Washington law—a fancy way of saying that Walker's attorney screwed up service process.

And then … silence. September turned to October, and October turned to October 26. Still nothing. Now, Walker's clock re-started, which meant he only had

 Then … silence.  September turned to October, and October turned to October 26, the 90-day reset period. At this point, the 3-year SOL clock started again, which meant that Walker's attorney had just 11 days to serve signed copies. 

Walker's attorney did nothing.  The day after the statute of limitations ended SOL, Orkin filed a motion to dismiss in Whatcom County Superior Court, alleging insufficient service of process. Walker basically argued that Orkin wasn't prejudiced because he got the complaint. The superior court denied Orkin's motion.

The Court of Appeals overturned the superior court. The court rules and the case law are clear, the Court wrote. First, the plaintiff has the burden of proving service of process, because service of process is a prerequisite for the Court getting jurisdiction over the defendant.

Next, under CR 3, to “commence” a civil state in Washington, the plaintiff has to serve “a copy of a summons together with a copy of the complaint … as provided in CR 4.”

Turn to CR 4, which states that the summons “must be signed and dated by the plaintiff or the plaintiff's attorney.”

That's pretty clear cut, the Court said. Walker did not properly “commence” the civil suit within the statute of limitations period because his attorney did not comply with CR 4.

But wait … Walker's attorney could have remedied his mistake by filing a motion to amend a “defective summons that substantially complies with the purpose of this summons.” Here, but for the lack of signature, this was a proper summons, so Walker's summons clearly met the “substantial compliance” test.

However, Walker neither corrected the error by either (a) serving Orkin wit ha signed summons before the SOL period ended or (2) filing a motion to amend the incorrect, un-signed summons with the correct, signed summons.   

And with that, Walker lost the whole case on a massive legal technicality.

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.


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