ESTHER KIM, as Personal Representative of the Estate of HO IM BAE on behalf of Mi-Soon Kim, Jae C. Kim, Chang Soon Kim, Jae Hong Kim, and Kyoung Soon Kim, surviving family members; and the ESTATE OF HO IM BAE, Petitioners/Cross Respondents, v. LAKESIDE ADULT FAMILY HOME; GRETCHEN DHALIWAL INCORPORATION (G.D., INC.), a Washington corporation d/b/a LAKESIDE AFH; and GRETCHEN DHALIWAL, individually; and JANE and JOHN DOES I-V, individually, Defendants, ALPHA NURSING AND SERVICES INCORPORATED, a Washington corporation, Respondent, and CHRISTINE THOMAS, individually, Respondent/Cross Petitioner.
NO. 91536-9
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MAY 12 2016
EN BANC
The trial court granted the defendants’ motion for summary judgment. The Court of Appeals affirmed, holding that one of the nurses did not have a duty to report and the other nurse fulfilled her reporting duty by contacting DSHS. Kim v. Lakeside Adult Family Home, 186 Wn. App. 398, 416, 345 P.3d 850, review granted, 183 Wn.2d 1017, 355 P.3d 1152 (2015). We reverse the Court of Appeals on this issue. The AVAA creates a private cause of action against mandated reporters who fail to report abuse, and genuine issues of material fact preclude summary judgment.
A separate issue is whether the claims against one of the nurses should be dismissed for insufficient service. The nurse, Christine Thomas, moved to Norway. The plaintiff personally served her there almost a year after filing the amended complaint and properly serving Alpha. The plaintiff also delivered a copy of the
Both parties seek attorney fees, but we deny their requests as premature because neither party has yet prevailed. We remand this case to the trial court for further proceedings.
FACTS AND PROCEDURAL HISTORY
This appeal arises out of an order granting summary judgment to defendants Alpha and Thomas, dismissing claims brought by Esther Kim, the personal representative of the estate of Ho Im Bae (collectively Kim). Presented below are the undisputed facts in this case. Additional facts are provided in the analysis section as necessary.
Ho Im Bae, a resident of Lakeside Adult Family Home,2 died of acute morphine intoxication on March 30, 2009. The state medical examiner ruled the death a
Alpha is a home health agency that provides nursing services to patients living in adult family homes, assisted living facilities, and private homes. At the time of Bae‘s death, Alpha employed two nurses who visited patients at Lakeside: Thomas, RN, and Marion Binondo, LPN.4 Bae was not one of Alpha‘s patients. Neither Thomas nor Binondo provided her with nursing services.
On March 28 or 29, 2009, Binondo was visiting her patient Kerri Salzbrun at Lakeside. Binondo and Salzbrun heard a “thump” or a “thud” from an adjacent room and went into that room. Binondo saw a woman, now identified as Bae, lying on the floor. Binondo at least suggested to Bae‘s caregiver, Irawati, that she may want to call 911. Irawati responded that Bae “falls a lot” and that she would call Dhaliwal, Lakeside‘s owner who is also a nurse. Irawati put Bae back in bed, and Binondo saw that Bae was moving her legs. When Binondo left Lakeside, Irawati was on the phone. Binondo did not call either DSHS or 911 emergency services at that time.
On March 30, 2009, Thomas visited Salzbrun at Lakeside. During that visit, Salzbrun told Thomas that Irawati had been giving Bae morphine. Thomas observed Irawati dragging or pulling Bae into the bathroom. Bae was not moving her feet. Bae
On April 1, 2009, Thomas and Binondo were working at Alpha‘s office. Thomas informed Susan Gange, Alpha‘s director of nursing, that she had called DSHS on March 30 to report her concerns about Bae. At Gange‘s request, Thomas prepared a written statement for Alpha‘s files describing what she had told DSHS. That same day, Thomas told Binondo about her observations at Lakeside. Based on that conversation, Binondo believed the woman she heard fall may have been the same woman Thomas observed being dragged into the bathroom. Binondo spoke with Gange about the fall, and Gange instructed Binondo to report the incident to DSHS.
Thomas, a Norwegian citizen who had lived in the United States for over 25 years, moved back to Norway in August 2010. Kim filed her first amended complaint, in which she added Alpha and Thomas as defendants, on March 20, 2012. Kim served Alpha on March 26, 2012. Service on Thomas is at issue and is discussed in detail below.
On April 3, 2013, Thomas moved to dismiss under
On March 28, 2013, Alpha and Thomas moved for summary judgment. Judge George F.B. Appel granted their motion on July 16, 2013, and denied Kim‘s motion for reconsideration on August 2, 2013. Kim appealed the order granting summary judgment, and it was joined with Thomas‘s cross appeal of the order denying her motion to dismiss. Division One of the Court of Appeals affirmed both decisions. Kim, 186 Wn. App. 398. Kim petitioned this court for review, and Thomas cross petitioned for review. We granted both petitions for review. Kim, 183 Wn.2d 1017.
ANALYSIS
The primary issue in this case is whether the mandatory reporting provision of the AVAA,
To determine if a statute creates an implied cause of action, we employ a three-part test. Bennett, 113 Wn.2d 912. We ask, “[F]irst, whether the plaintiff is within the class for whose ‘especial’ benefit the statute was enacted; second, whether legislative intent, explicitly or implicitly, supports creating or denying a remedy; and third, whether implying a remedy is consistent with the underlying purpose of the legislation.” Id. at 920-21 (quoting In re Wash. Pub. Power Supply Sys. Sec. Litig., 823 F.2d 1349, 1353 (9th Cir. 1987)).
We have previously applied this test to the abuse of children act (ACA),
Subsequent legislative action implicitly approved of this court‘s holding that the ACA creates an implied cause of action against mandated reporters who fail to report child abuse. The ACA has been amended multiple times post-Beggs. Although some of these amendments have limited governmental entities’ liability, see, e.g., LAWS OF 2012, ch. 259, § 14, codified at
The AVAA is similar to the ACA, and thus Beggs is persuasive. Indeed, prior to 1999, some of the AVAA‘s protections were incorporated in the ACA. See, e.g., former
Furthermore, the AVAA is similar to the ACA in both structure and purpose. First, vulnerable adults who are the victims of abuse or neglect are within the class of people for whose “special” benefit the legislature enacted the reporting statute. When the legislature consolidated provisions protecting vulnerable adults into
Second, legislative intent supports creating a private cause of action against mandated reporters who fail to report. Like the ACA, the AVAA provides immunity for those who in good faith make a report or testify about alleged abuse or neglect under the chapter. See
One notable difference between the ACA and the AVAA is that “[i]n addition to other remedies available under the law,” the AVAA explicitly includes a cause of action for vulnerable adults who have suffered abuse or neglect either while residing in a facility, or, for those residing at home, “who receive[] care from a home health, hospice, or home care agency, or an individual provider.”
This AVAA provision does not preclude also finding an implied cause of action against mandated reporters for failure to report. The express liability provision provides redress for actual abuse; it does not provide redress for those who breach their mandatory reporting duty. “Courts have consistently held that when a statute gives a new right and no specific remedy, the common law will
II. Summary Judgment Was Improper as to the AVAA Claims
A court may grant summary judgment when, on the basis of the facts before it, a reasonable fact finder could reach only one conclusion. See SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d 40 (2014). This court reviews orders for summary judgment de novo. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). An appellate court considers all of the evidence presented to the trial court and “engages in the same inquiry as the trial court.” Id. Summary judgment is appropriate only “when the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. The moving party bears the burden of demonstrating there is no issue of material fact, and all facts and reasonable inferences therefrom must be viewed
In this case, there are genuine disputes of material fact that preclude granting summary judgment. As employees of Alpha, Thomas and Binondo are mandated reporters under the AVAA. See
Under the AVAA, mandated reporters have a duty to report suspected abuse or neglect to DSHS and, in appropriate circumstances, directly to law enforcement. The statute provides:
(1) When there is reasonable cause to believe that abandonment, abuse, financial exploitation, or neglect of a vulnerable adult has occurred,
mandated reporters shall immediately report to the department [of social and health services]. . . . .
(3) When there is reason to suspect that physical assault has occurred or there is reasonable cause to believe that an act has caused fear of imminent harm:
(a) Mandated reporters shall immediately report to the department; and
(b) Mandated reporters shall immediately report to the appropriate law enforcement agency, except as provided in subsection (4) of this section.9
The Court of Appeals did not directly address the duty question, instead holding Thomas and Binondo acted reasonably. Kim, 186 Wn. App. at 409-15, 415 n.10. Kim is correct that whether an individual has “reasonable cause” or “reason to suspect” abuse goes to the question of breach, not duty. The Court of Appeals appears to have conflated these issues. See Kim, 186 Wn. App. at 409-15. Alpha and Thomas adopt this faulty reasoning, arguing that Binondo had no duty to report to DSHS and Thomas had no duty to report to law enforcement because they acted reasonably, consistent with the statute. Suppl. Br. of Resp‘t/Cross-Pet‘r at 14-15.
We agree with Kim that the court must separate the questions, first identifying the duty the statute unequivocally places on mandated reporters, and then
We have already identified the relevant legal duty under the AVAA. The issue of breach is quintessentially a question for the trier of fact; it cannot be resolved on summary judgment unless the material facts are undisputed and reasonable minds could not disagree on the question. See Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). In this case, there are genuine issues of material fact as to whether (1) Binondo had “reasonable cause to believe” that abuse was occurring and (2) Thomas had “reason to suspect that physical assault had occurred” such that she should have reported directly to law enforcement and DSHS.
The terms “reasonable cause to believe” and “reason to suspect” have not been defined in the AVAA, and there appears to be no case law interpreting them.10 In similar contexts, however, whether an individual has “reasonable cause to believe” or “reason to suspect” are questions for the jury. Cf. State v. Baker, 30 Wn.2d 601, 606-07, 192 P.2d 839 (1948) (“The question whether the resistance of the complaining witness was prevented by fear of immediate and great bodily harm which she had reasonable cause to believe would be inflicted upon her, was a question of fact to be determined by the jury.“).
The AVAA defined “abuse” as “the willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment on a vulnerable
Alpha and Thomas argue there is no admissible evidence to support a finding that Binondo had reasonable cause to believe Bae was being abused. Suppl. Br. of Resp‘t/Cross-Pet‘r at 15. This argument overlooks the following evidence creating a genuine dispute of material fact: in her call to DSHS, Binondo told DSHS that she noted Bae “had passed out” after the fall. CP at 309-10.11 Binondo witnessed Irawati pick Bae up after the fall (something Binondo cautioned Irawati against), drag her into bed, and then not examine Bae. Id. Binondo also told DSHS that Salzbrun told her “she thought [Bae] looked doped as she saw [Irawati] crush pills .... I know what they look like because I take them also.” Id. at 310. Binondo also indicated that not only did she think Salzbrun was reliable, but that Salzbrun had told her the same thing multiple times. Id. (when asked if Salzbrun was reliable, Binondo
There is additional evidence that could support a jury‘s conclusion that Binondo had reasonable cause to believe Bae was being abused or neglected on the day of the fall. Salzbrun also stated that she told Binondo Bae was “doped up” shortly before Binondo left on the day of the fall. CP at 124. In addition, in her deposition, Binondo stated she “[p]robably” remembered Bae losing consciousness after the fall, id. at 332, and despite knowing the dangers of head strikes after a fall, see id. at 331, Binondo did not insist Bae‘s caregiver call 911 nor call 911 herself. Id. at 329. All of this evidence raises questions of material fact that preclude summary judgment.
Alpha and Thomas also argue that there is no admissible evidence to support a finding that Thomas had “reason to suspect” that Bae was being abused such that it would require an immediate call to law enforcement in addition to DSHS. The Court of Appeals agreed and held that because Thomas did not actually see Bae being given morphine and because she doubted Salzbrun‘s credibility, there was insufficient evidence of physical assault to require Thomas to call law enforcement in addition to DSHS. See Kim, 186 Wn. App. at 413-15.
Thomas reiterated much of this information in both her declaration and deposition testimony. Thomas stated that one of her patients told her Bae was being given morphine. CP at 767. Salzbrun also testified she told Thomas Bae “had been given someone else‘s morphine and was doped up.” Id. at 124. While at Lakeside, Thomas observed “[Irawati] dragging a small Korean woman to the bathroom. [Thomas] did not see the Korean woman moving her feet. She appeared to [Thomas]
Kim also raises a genuine question of material fact as to whether either Binondo or Thomas “immediately” reported to DSHS or law enforcement. Id. at 149-51. Whether an individual acts “immediately” is a question for the jury. See State v. Sherman, 98 Wn.2d 53, 57, 653 P.2d 612 (1982) (holding that in the context of the felony flight statute, “‘immediately’ means stopping as soon as reasonably possible once signaled by a police officer to halt,” and that given the facts of the case, “the trier of fact could well have found he did not meet the requirements of ‘immediately‘“).
In this case, it is undisputed that Binondo did not call DSHS until after Bae‘s death, and that neither she nor Thomas ever called law enforcement. Nothing prevented Thomas from calling law enforcement. CP at 182. Thomas called DSHS at approximately 10:00 a.m., five minutes after leaving Lakeside. She got a busy signal and called back approximately an hour and a half later, at 11:30 a.m. Whether this constitutes calling “immediately” is a question for the jury.
Kim has presented sufficient evidence to defeat summary judgment. There are existing questions of material fact as to whether Binondo and Thomas reasonably believed or suspected that abuse was occurring, such that they had to report to either
III. Service of Process on a Defendant in Norway Must Comply with the Hague Convention. Personal Service by an Independent Process Server Does Not Comply with the Convention as Service Must Be Effectuated through Norway‘s Designated Central Authority
Service of process on a defendant in Norway falls under the purview of the Hague Convention. Thomas and Kim appear to agree on this point. Thomas was personally served with process at her home in Nannestad, Norway. CP at 793-97. This service was not effectuated through the Norwegian government. Id. at 744-45. Thomas argues this personal service was improper because it was not completed in accordance with the Hague Convention. See, e.g., id. 803-04; Br. of Resp‘ts/Cross-Appellants at 32-33; Suppl. Br. of Resp‘ts/Cross-Pet‘r at 4-7. Thomas also argues that serving documents written only in English violates Norway‘s translation requirements. See, e.g., Suppl. Br. of Resp‘ts/Cross-Pet‘r at 9-10. In the courts below, Kim asserted that personal service was proper under Hague Convention articles 5 and 19, and under Norwegian law. See, e.g., Reply/Cross-Resp. Br. of Appellants at 18-19. Kim now argues “the Hague Convention issue is moot because Kim also served Thomas through the Norwegian Central Authority.” Suppl. Br. of Pet‘r at 12.
The Court of Appeals held, “Because Norway has not objected to personal service and, in fact, such service complied with its laws, there is no reason to invalidate service in this case.” Kim, 186 Wn. App. at 406. The Court of Appeals, like Kim, relied on articles 5(a) and 19 of the Hague Convention, and on Norwegian law. Id. at 405-06.
“This court reviews de novo if service of process was proper.” Scanlan v. Townsend, 181 Wn.2d 838, 847, 336 P.3d 1155 (2014). Although Kim asserts that this issue is moot, the record before us indicates service is still pending in Norway. See CP at 558. Moreover, this court may review a moot issue if it is one “of continuing and substantial public interest.” In re Marriage of Horner, 151 Wn.2d 884, 891, 93 P.3d 124 (2004). Ensuring proper service of process is such an issue. This case addresses matters that are public in nature and for which an authoritative determination is desirable. Furthermore, this is at least the second case this court has seen addressing service under the Hague Convention. See Broad v. Mannesmann Anlagenbau, AG, 141 Wn.2d 670, 10 P.3d 371 (2000) (addressing tolling of the statute of limitations for international service of process in accordance with the Hague Convention). This indicates that issues of international service of process are likely to recur. We therefore choose to address this issue and provide guidance, regardless of mootness.
The Hague Convention is a multilateral treaty “intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698, 108 S. Ct. 2104, 100 L. Ed. 2d 722 (1988). It applies in all civil cases “where there is occasion to transmit a judicial or extrajudicial document for service abroad” where the address of the person to be served is known. Hague Convention, 20 U.S.T. at 362; see also Broad, 141 Wn.2d at 675. “[C]ompliance with the Convention is mandatory in all cases to which it applies,” and the provisions of the Hague Convention preempt inconsistent methods of service prescribed by state law. Schlunk, 486 U.S. at 705; see Broad, 141 Wn.2d at 674-75.
The Hague Convention requires each state to designate a central authority, which receives requests for service, and either serves the documents itself or arranges service. Hague Convention, 20 U.S.T. at 362-63. The Hague Convention also establishes alternative methods of service. See id. at 363.12 Where a state objects to these alternative methods, plaintiffs must use the designated central authority to execute service. See Broad, 141 Wn.2d at 674 (“Germany has objected [to the alternative methods of service in articles 8 and 10], and requires that plaintiffs who sue defendants in Germany must request that the designated central authority execute service of process.“).
Both the United States and Norway are signatories to the Hague Convention. See Status Table, Hague Conference on Private Int‘l Law (last visited Apr. 26, 2016), http://www.hcch.net/index_en.php?act=conventions.status&cid=17. Norway has objected to the alternative methods of service, and thus service on defendants in Norway must be through the Royal Ministry of Justice and Public Security, Department of Civil
Kim and the Court of Appeals erroneously relied on articles 5 and 19 of the Hague Convention to establish personal service was proper. “When interpreting a treaty, we ‘begin with the text of the treaty and the context in which the written words are used.‘” Schlunk, 486 U.S. at 699-700 (internal quotation marks omitted) (quoting Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court, 482 U.S. 522, 534, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987)). Article 5 of the Hague Convention provides in relevant part:
The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either
(a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
(b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.
Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.
If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.
Hague Convention, 20 U.S.T. at 362.
This article‘s structure is clear: the options for service in subsections (a) and (b) are available only if the central authority either serves the documents itself or arranges for their service. See Schlunk, 486 U.S. at 699 (“Once a central authority
Similarly, the Hague Convention does not convert a country‘s domestic laws on service of process into laws governing service of process of documents coming from abroad. Article 19 states, “To the extent that the internal law of a contracting State permits methods of transmission, other than those provided for in the preceding articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions.” Hague Convention, 20 U.S.T. at 365 (emphasis added). This provision refers only to a country‘s laws that specifically deal with service of process of documents coming from abroad. It does not pertain to the general service of process laws that apply to wholly domestic actions. See Shenouda v. Mehanna, 203 F.R.D. 166, 171 (D.N.J. 2001) (“Article 19 provides that the internal law of a signatory with respect to service from abroad within its territory is not affected by the Convention.“). There are apparently no
Kim‘s attempt to serve Thomas by direct personal service was improper because it did not comply with the Hague Convention. However, because Kim is also serving Thomas through the Royal Ministry, see CP at 558, 631-33, service will be proper once the Royal Ministry completes it. As addressed below, the statute of limitations has tolled. Contrary to Thomas‘s argument, the fact that the documents were written only in English is of no consequence. Although Norway generally requires documents to be written in Norwegian, Danish, or Swedish, “the Ministry of Justice may . . . permit the service of [untranslated] documents if it is convinced that the addressee understands the language used in the document.” Details, supra. In this case, the documents did not need to be translated from English. Matora Yoga, executive officer of the Royal Ministry, informed Kim that “[d]ue to that the addressee understands the language, it is sufficient to enclose the English language document.” CP at 633.14 Thus, the documents may be served in English.
IV. The Statute of Limitations Was Tolled as to Thomas
Independent of the insufficient service issue, Thomas argues she was not timely served. See Br. of Resp‘ts/Cross-Appellants at 34; Suppl. Br. of Resp‘t/Cross-Pet‘r at 12-13. Thomas admits that under Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 815 P.2d 781 (1991), proper and timely service on one defendant tolls the statute of limitations as to any other defendant. Suppl. Br. of Resp‘t/Cross-Pet‘r at 11-13. However, Thomas argues that the circumstances presented in this case go beyond the permitted tolling because Kim was not sufficiently diligent in attempting service on Thomas. See id. Kim argues that she has timely proceeded with her case; that there is no due diligence requirement under Sidis; and that even if there was, she has met it, and any delay in service was due to Thomas fleeing to Norway and her attorney‘s deception as to Thomas‘s whereabouts. Suppl. Br. of Pet‘r at 14-16.
In Sidis, this court held that under
In Bosteder v. City of Renton, 155 Wn.2d 18, 49, 117 P.3d 316 (2005), this court held that serving a defendant 8 months after filing the complaint (and 11 months after serving a codefendant) did not violate Sidis because other defendants were timely and properly served, and because the late-served defendant “failed to demonstrate how she was prejudiced by any delay in service, or how a court rule was violated.” In that case, the plaintiff did not provide any rationale for his delay. Id. However, while noting that “there is little guidance for determining whether the eight-month delay was excessive,” the court considered various facts in the record and found evidence of what could have led to the delayed service. Id.
This court most recently examined Sidis‘s contours in Powers v. W.B. Mobile Services, Inc., 182 Wn.2d 159, 339 P.3d 173 (2014). In that case, Powers filed a personal injury suit in 2009 naming (among other parties) John Doe One as the “‘builder
Relying on Sidis, the court held, “[S]ervice of process on one defendant tolls the statute of limitations as to an unserved and unnamed defendant if the plaintiff identifies the unnamed defendant with reasonable particularity.” Id. “In Sidis, this court observed ‘that in some cases, if identified with reasonable particularity, “John Doe” defendants may be appropriately “named” for purposes of
from the commencement of the statute of limitations, the plaintiff made a diligent effort to identify the actual defendant given the information reasonably available . . . and . . . the plaintiff provided information about the unnamed defendant in the complaint to the greatest extent possible . . . and . . . the defendant had or should have received such notice of the action that it will not be prejudiced in maintaining a defense on the merits . . . .
Id. at 164-65 (emphasis added). The court analyzed the specific facts of the case and determined that Powers reasonably identified the defendant because he made a diligent effort to identify and name W.B. Mobile. Id. at 166. Furthermore, W.B. Mobile was
Relying on Powers and
On March 21, 2013, almost a year after Alpha was served, Thomas accepted personal service of process. Id. at 1203-04. That same day, Curtis Williams (a paralegal from Graham Lundberg Peschel PS, Kim‘s attorneys) e-mailed the Royal Ministry to inquire about forwarding documents to the ministry for service under the Hague Convention. See id. at 633. The Norwegian official, Matora Yoga, responded on March 26, 2013, id. at 633, and on April 3, 2013, Williams sent an e-mail indicating that FedEx International MailService had delivered the documents to the Royal Ministry that day. Id. at 632. Yoga responded on April 9, 2013, indicating that they had not yet received the documents but that as soon as they did, they would begin the appropriate process for service. Id. at 631. Williams followed up with the Royal Ministry on June 3, 2013, and Yoga responded on June 11, 2013, that the “case is still pending. We will forward the answer to you as soon as we receive this.” Id. at 558.
This record demonstrates that Kim acted diligently to learn Thomas‘s whereabouts and to serve her. As this court noted in Bosteder and Sidis, in multidefendant litigation it may be difficult for the plaintiff to locate some defendants before discovery. Bosteder, 155 Wn.2d at 48; Sidis, 117 Wn.2d at 330. Here, Kim was not able to obtain Thomas‘s address until December 11, 2012, despite the fact that Kim‘s attorneys had requested the address multiple times and Thomas‘s attorneys could
This conclusion is supported by the fact that in Broad, this court held “[b]ecause the plaintiff lacks control over the timing of service once the documents are transmitted to a designated central authority,” the 90-day period of
In addition, Thomas has not shown prejudice. She argues that she was prejudiced because the statute of limitations had run and she was therefore entitled to dismissal of the claims against her. See Resp‘ts/Cross-Appellants Reply Br. at 16. This argument incorrectly presupposes the statute of limitations was not tolled. Furthermore, Thomas either constructively or actually had notice of the suit when her attorneys—who are also Alpha‘s attorneys—received a copy of the complaint on March 26, 2012.
There is no doubt that “each defendant must still be served, and thus given actual notice, before any action can be taken concerning it.” Sidis, 117 Wn.2d at 331. In this
V. Neither Party Is Entitled to Attorney Fees at This Point
Thomas argues she is entitled to attorney fees and costs under
Washington‘s long arm statute provides in relevant part:
In the event the defendant is personally served outside the state on causes of action enumerated in this section, and prevails in the action, there may be taxed and allowed to the defendant as part of the costs of defending the action a reasonable amount to be fixed by the court as attorneys’ fees.
Separately, Kim argues that assuming she prevails at trial, she is entitled to an award of attorney fees both at trial and on appeal pursuant to
CONCLUSION
We reverse in part the Court of Appeals’ decision. The AVAA creates an implied cause of action against mandated reporters who fail to report suspected abuse
We affirm the Court of Appeals insofar as it held that Kim‘s proper and timely service on Alpha tolled the statute of limitations as to Thomas. While the Court of Appeals was incorrect in holding that personal service was proper, Kim correctly served Thomas through Norway‘s Royal Ministry in accordance with the Hague Convention. The statute of limitations was tolled at the time service was made.
Reversing in part and affirming in part, we remand this case to the trial court for further proceedings.
Stephens, J.
WE CONCUR:
Madsen, C.J.
Wiggins, J.
Johnson, J.
González, J.
Owens, J.
Gordon McCloud, J.
Fairhurst, J.
Yu, J.
Notes
For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint. . . . If . . . following filing, service is