Brian Rundquist v. Micheal E. Fox
49993-2
| Wash. Ct. App. | Aug 29, 2017Background
- On Sept. 4, 2012 Rundquist was injured in a vehicle collision involving Michael Fox. The three-year statute of limitations would expire Sept. 4, 2015.
- Rundquist filed suit Sept. 2, 2015 naming Fox and “Fischer Trucking, Inc., a Washington State limited liability company” (Washington Fischer Trucking).
- Washington Fischer Trucking was served Oct. 19, 2015 (within the 90‑day tolling period under RCW 4.16.170). Service on Fox was attempted later via the WA Secretary of State under RCW 46.64.040.
- Rundquist later amended to add Fischer Trucking Inc. (Georgia) and then a second amended complaint clarified both Washington Fischer Trucking (LLC) and Georgia Fischer Trucking were defendants; the second amended complaint related back to the original filing date.
- Fox moved to dismiss arguing no proper defendant (the true employer, he asserted, was an Indiana Fischer Trucking entity) had been named or served within the 90‑day tolling period; Fox provided no evidentiary support for the Indiana‑entity claim.
- The superior court granted dismissal on statute‑of‑limitations grounds. The Court of Appeals reversed, holding Fox failed to show absence of a genuine dispute that the Washington entity served was a proper defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service on the Washington Fischer Trucking entity within the 90‑day tolling period tolled the statute of limitations as to Fox | Service on the Washington entity was proper and tolled the statute for all defendants | The Washington entity was not Fox’s employer (the correct employer was an Indiana corporation) so service did not toll the statute | Reversed: genuine dispute exists whether the Washington entity was Fox’s employer; Fox failed to prove otherwise on summary judgment |
| Appropriate procedural standard (CR 12(b)(6) vs CR 56) | Rule 12(b)(6) review should apply; pleadings’ allegations presumed true | Court treated matters outside the pleadings as submitted; summary judgment standard applies | Summary judgment standard applies because court considered extrinsic evidence |
| Whether defendant met initial summary‑judgment burden to show absence of material factual dispute | N/A (plaintiff’s burden only after defendant shows absence) | Fox argued absence of evidence that the Indiana entity was served, so dismissal warranted | Fox did not produce admissible evidence that Washington entity was not employer; he failed to meet initial burden |
| Validity of service method on Fox (Secretary of State / mailing) | Service on Secretary of State complied with RCW 46.64.040 | Fox argued service was by mail or otherwise defective | Court found service method complied with statute and was not the basis for dismissal; dismissal turned on timing/proper‑party issue |
Key Cases Cited
- Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325 (1991) (service on one proper defendant tolls limitations for all co‑defendants)
- Teller v. APM Terminals Pacific, Ltd., 134 Wn. App. 696 (2006) (tolling does not apply if named/served defendants are not proper parties)
- O’Neill v. Farmers Ins. Co. of Wash., 124 Wn. App. 516 (2004) (if no proper defendant served within tolling period the action is not commenced)
- Sea‑Pac Co. v. United Food & Commercial Workers Local Union 44, 103 Wn.2d 800 (1985) (treatment of motions that rely on matters outside the pleadings)
- Michael v. Mosquera‑Lacy, 165 Wn.2d 595 (2009) (summary‑judgment burden shifting when moving party shows absence of evidence)
- Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157 (2012) (nonmoving party must present specific facts showing genuine dispute)
- Bravo v. Dolsen Cos., 71 Wn. App. 769 (1993) (court must disregard facts stated only in counsel’s argument)