Renette v. Coates

1

KIM RENETTE, a single person Respondent, v. BRIANNA COATES, and TYLER COATES and the marital community therein; T&E TRUCKING, LLC; NATIONWIDE AGRIBUSINESS INSURANCE COMPANY; CODY LOPEMAN and KASSIDY LOPEMAN, and the marital community therein; LOPEMAN HAY & CATTLE, LLC; JAMES LYON and JANE DOE LYON and the marital community therein, WESTERN NATIONAL MUTUAL INSURANCE COMPANY; JOHN DOE(S) 1 - 10 and the marital community therein, Appellants.

No. 38804-2-III

Court of Appeals of Washington, Division 3

August 29, 2023

UNPUBLISHED OPINION

SIDDOWAY, J.P.T. ^[*]

We granted discretionary review of the trial court's refusal to dismiss this personal injury action for lack of personal jurisdiction, where it is undisputed that Kim Renette failed to effect timely service of process on any defendant including defendants James Lyon, T&E Trucking, LLC, and its owners Brianna and Tyler Coates (Defendants), who sought review. We reverse and remand with directions to dismiss the complaint with prejudice.

FACTS AND PROCEDURAL BACKGROUND

On June 22, 2018, Kim Renette was involved in an automobile accident. She was driving on State Route 902, near Medical Lake, when a large cab-over engine tractortrailer driven by James Lyon collided into the rear of her car. Mr. Lyon was driving the vehicle in the course of his employment by T&E Trucking LLC. The LLC is owned by Tyler and Brianna Coates.

The collision caused Ms. Renette's head to strike the driver-side window and left her with allegedly serious debilitating injuries, including back pain, limited mobility in her right arm and shoulder due to a rotator cuff separation, short-term memory loss, an acquired stutter, and aggravation of posttraumatic stress disorder.

By January 2019, Ms. Renette had retained Craig Swapp &Associates to represent her in asserting a personal injury claim. The Swapp firm provided notice of a claim to Brianna Coates's insurer, Nationwide Agribusiness Insurance Company (Nationwide), which requested copies of Ms Renette's medical records and bills. The Swapp firm apparently sent some of the requested documents, but little other information was exchanged in furtherance of any settlement.

In December 2020 or January 2021, Ms. Renette retained a new law firm, Robert Cossey &Associates, to take over the claim. Attorney Aaron Jones assumed responsibility for the matter and in February 2021 his paralegal notified Matthew Owen, the Swapp firm's contact at Nationwide, to direct further communications to herself and Mr. Jones.

On June 14, 2021, Mr. Jones sent Mr. Owen a three-page letter in which he described the accident and Ms. Renette's injuries and damages, and asked that Nationwide tender insurance policy information and agree to mediation. He stated that he would be filing suit and submitting a copy of the complaint to Nationwide, but encouraged mediation as "mutually beneficial especially in light of your acceptance of liability on behalf of your insured." Clerk's Papers (CP) at 119.

Paula Jones,^[1] another Nationwide adjuster, sent a response to Mr. Jones three days later, notifying him that she was now handling Ms. Renette's claim. She said that given the limited information provided by Ms. Renette to date, disclosure of the policy information was not warranted, although she did confirm that Ms. Coates had an active business auto policy on the date of loss. She stated that Nationwide had not admitted liability of its insured but "appreciate[d] any opportunity . . . to attempt to reach an early resolution." CP at 125. Given the lack of supporting documentation with which to evaluate the claim, she stated that Nationwide was not ready to agree to "pre-litigation mediation." Id.

She concluded the letter with a warning:

[I]f a Complaint has not been timely filed before the Statute of Limitations deadline of 6/22/2021, the defense counsel will be asked to assert (and to not waive) any and all applicable defenses, to include a Motion to Assert that the filing is barred in violation of the Statute of Limitations. Nationwide has been consistent with the expectation of the 3 year deadline and recommend[s] that you act accordingly. If you determine it is the best course of action to file a Complaint, I would appreciate a complimentary copy of the same.

Id.

Mr. Jones filed a summons and complaint the next day, naming as defendants Mr. Lyon, the Coateses, T&E Trucking, LLC, Nationwide, and several others.^[2] Mr. Jones did not provide Paula with a courtesy copy of the complaint, but the fact that it was filed was brought to her attention by Nationwide's lawyer. Karen Bamberger, outside counsel for Nationwide, filed a notice of appearance on behalf of the Defendants on June 28. It included the usual language that it did not constitute a waiver of objections to service of process, jurisdiction or venue.

The filing of the complaint on June 18 tolled the period within which Mr. Jones was required to serve the Defendants for 90 days, meaning service needed to be accomplished by September 16, 2021. See RCW 4.16.170. Upon receiving Ms. Bamberger's notice of appearance, Mr. Jones forwarded Ms. Bamberger a copy of the letter/mediation request he had sent to Mr. Owen, informed her that he would be on paternity leave for the month of July, and stated that his paralegal "will be available to address any inquiries about records while I am out of the office for July." CP at 127.

In July and August, Ms. Bamberger corresponded with personnel at Mr. Jones's office about providing a stipulation and medical release so that Nationwide could obtain copies of Ms. Renette's medical records from her providers. On August 10, Ms. Renette executed an authorization for release of medical records, and Mr. Jones signed a related stipulation on August 13. On August 17, Ms. Bamberger inquired of Mr. Jones whether a demand letter would be forthcoming. Mr. Jones still had not served any of the Defendants.

Two weeks before the 90-day deadline for service, a paralegal at Mr. Jones's office who had been assigned the responsibility of addressing service of process mailed a letter by certified mail, return receipt requested, to Mr. Lyon at his Ellensburg address. The letter, which was signed by Mr. Jones, requested insurance information from Mr. Lyon, and stated, "We are providing you with a copy of the Complaint and Summons that we have filed in this matter, as well as the Notice of Appearance we received." CP at 151.

The letter did not ask Mr. Lyon to sign an acceptance of service. No copy of the letter was sent to Nationwide or Ms. Bamberger.

On the afternoon of September 14-two days before the expiration of the deadline for service-a judicial assistant in the superior court department to which Ms. Renette's case was assigned e-mailed Mr. Jones and Ms. Bamberger about an upcoming status conference. The e-mail notified them that:

It is this department's policy that if the Summons/Complaint has been served, and answer filed, and a Civil Joint Status Report completed and submitted to this department, a Civil Case Schedule Order can be issued in lieu of the Status Conference.

CP at 155. Mr. Jones responded by e-mail that afternoon, copying Ms. Bamberger. He stated:

The parties have been in mediation status and an answer has not been filed yet. Is it possible to continue the status conference out two months?

CP at 154.

Ms. Bamberger did not respond to the e-mails. She later testified by declaration that she did not respond because she had taken a red-eye flight to Tennessee the morning of the 14th to visit her 85-year old mother, who was hospitalized for an emergency surgery.

The deadline for serving process passed on September 16 without any defendant having been served. On September 17, Ms. Bamberger filed an answer asserting the affirmative defenses of insufficient service, insufficient service of process, and lack of personal jurisdiction. On September 24, she filed a CR 12(b) motion to dismiss based on the affirmative defenses.

Mr. Jones's office caused personal service to be effected on Mr. Lyon on September 27,^[3] and on T&E Trucking, LLC's registered agent on October 5.

The certified letter that Mr. Jones's paralegal had mailed to Mr. Lyon in August was returned to Mr. Jones's office on October 2 as unclaimed.

In opposing the Defendants' motion to dismiss, Ms. Renette argued they had waived their affirmative defenses by engaging in substantive discovery, that the statute of limitations should be equitably tolled, and that because Nationwide was aware of the complaint and service was effected before the motion was heard, the issue of service was essentially nullified.

The trial court denied the motion to dismiss. An order presented by Ms. Renette included 15 "findings of fact," nothing identified as a conclusion of law, and the court's order. The trial court made some handwritten modifications to the "findings."

A motion by the Defendants for reconsideration was denied. The Defendants sought discretionary review, which was granted.

ANALYSIS

Mr Lyon, T&E Trucking, LLC, and the Coateses assign error to the trial court's refusal to dismiss the complaint.

I. STANDARD OF REVIEW

CR 12(b) authorizes a handful of defenses to be presented not only in the responsive pleading, but by motion, including the defenses of lack of jurisdiction over the person (12(b)(2)), insufficiency of process (12(b)(4)), insufficiency of service of process (12(b)(5)), and failure to state a claim on which relief can be granted (12(b)(6)).

Whether service of process was proper is a question of law that we review de novo, as is a ruling on personal jurisdiction when the underlying facts are undisputed. Chengdu Gaishi Elecs., Ltd. v. G.A.E.M.S., Inc., 11 Wn.App. 2d 617 622-23, 454 P.3d 891 (20...