Plaintiff appeals from a summary judgment granted in favor of defendant on the ground that plaintiff failed to adequately serve defendant with a summons and complaint. ORCP 7. We affirm.
The facts are undisputed. On December 8, 1990, defendant’s car collided with a vehicle in which plaintiff was a passenger. Defendant exchanged information, including his mailing address, with the driver of the other vehicle. Defendant and his landlord share the same mailbox and have authorized each other to pick up the other’s mail. Defendant did not tell plaintiff, however, about the shared mailbox and the understanding with his landlord.
On November 19, 1992, plaintiff filed this personal injury action. On that day, plaintiff mailed to the address given by defendant, a true copy of the summons and complaint by certified mail, return receipt requested, unrestricted delivery. 1 Before mailing the summons and complaint, plaintiff had confirmed defendant’s current address with the Motor Vehicles Department (MVD).
On November 20,1992, defendant’s landlord signed the receipt for the summons and complaint and gave it to defendant the following day. Plaintiff never tried to serve defendant by personal service, substituted service or office service. On February 5,1993, defendant filed his answer and affirmative defense, alleging improper service and the expiration of the statute of limitations. Both parties moved for summary judgment on the affirmative defense. The trial court denied plaintiffs motion, granted defendant’s motion and entered judgment for defendant. Plaintiff appeals, assigning error to the trial court’s order granting defendant’s summary judgment motion and denying plaintiffs motion.
Summary judgment is appropriate when there is no issue of material fact and the moving party is entitled to judgment as a matter of law.
Gaston v. Parsons,
*696 Plaintiff contends that service by mail in this case was reasonably calculated to apprise defendant of the pen-dency of the action and to afford defendant a reasonable opportunity to appear and defend. Plaintiff also argues that, because defendant received actual notice and was not prejudiced by the manner of service, the alleged error must be disregarded pursuant to ORCP 7G and ORCP 12B. Defendant asserts that service by mail, under the circumstances of this case, failed to provide adequate notice. We agree with defendant.
In
Baker v. Foy,
Plaintiff concedes that service in this case does not meet the requirements of ORCP 7D(2) and (3). Accordingly, we must decide whether defendant received reasonable notice as required by ORCP 7D(1).
ORCP 7D(1) provides, in part:
“Summons shall he served * * * in any manner reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend.”
Service by mail may, under appropriate circumstances, be reasonably calculated to apprise a defendant of the existence and pendency of an action. Plaintiff, however, has the burden of establishing the adequacy of service by mail; such service is not presumed to be adequate.
Edwards v. Edwards,
In this case, the only facts known to plaintiff were that defendant gave the eventual location of service as his address and that MVD confirmed that defendant listed that location as his address. Plaintiff did not know if other persons resided at that address. Likewise, plaintiff did not know that defendant’s landlord was authorized to pick up mail for defendant. Plaintiff mailed the summons and complaint to defendant by certified mail, return receipt requested, but by unrestricted delivery. Accordingly, anyone at that address — a roommate, a neighbor, defendant’s landlord — could have signed for the receipt of the summons and complaint, with no assurances that defendant would ever see the papers. In other words, plaintiff did not know who would actually receive the summons and complaint once they were delivered to the location that defendant listed as his address. Under the circumstances, the attempted service did not comport with the reasonable notice requirement of ORCP 7D(1). 2
Citing
Lake Oswego Review v. Steinkamp,
In Lake Oswego Review v. Steinkamp, supra, the plaintiff mailed the summons and complaint, using restricted delivery, to the defendant at a particular address. The letter carrier, who knew the defendant, delivered the mail to the defendant at a different address and had him sign for it. The Oregon Supreme Court held that service in that case was adequate, because the plaintiff had sent the summons and complaint by certified mail, return receipt requested, restricted delivery. The court drew a distinction between restricted and unrestricted delivery. In the case of unrestricted delivery, the court noted, the letter may be signed for by someone other than the addressee. Only where restricted *698 delivery is used, the court said, must the letter be signed for by the addressee. Therefore, the court concluded,
“[u]nless the summons and complaint are returned by the post office as undeliverable, restricted delivery mail addressed to an individual defendant is more likely to result in adequate notice”
than is service by unrestricted delivery.
Plaintiff acknowledges that important distinction, but argues that it makes no difference in this case, because defendant had authorized his landlord to sign for his mail. Plaintiff, however, ignores the fact that, at the time of service, she did not know of that authorization. Because the adequacy of service is determined by examining the circumstances known to the plaintiff at the time of service,
Beckett v. Martinez, supra,
Luyet v. Ehrnfelt, supra,
is similarly unavailing. In that case, the plaintiff had attempted service under ORCP 7D(4)(a)(i), which, under limited circumstances, permits service by serving the Administrator of the Motor Vehicles Division, as the defendant’s statutorily appointed agent for service, followed by mailing a copy of the summons and complaint to the defendant at his or her last known address. The defendant argued that, because the plaintiff had mailed the summons and complaint to him before serving the MVD Administrator, service was defective. We held that, even assuming the service did not technically comport with the requirements of ORCP 7D(4)(a)(i), it nevertheless was adequate under the reasonable notice requirements of ORCP 7D(1).
In this case, plaintiff did not serve the MVD Administrator. She simply mailed a copy of the summons and complaint to defendant. Luyet v. Ehrnfelt, supra, is inapposite.
Alternatively, plaintiff argues that because defendant received actual notice, any defect in service must be disregarded. Defendant responds that actual notice does not *699 make service adequate if the summons and complaint were not served in a manner reasonably calculated to apprise defendant of the action. Again, we agree with defendant.
ORCP 7G directs the court to “disregard any error in the * * * service of the summons that does not materially prejudice the substantive rights of the party against whom summons was issued.” Adequate service, however, “is, itself, a prerequisite to disregarding errors in the content or service of a summons under the authority of the second sentence of ORCP 7G.”
Edwards v. Edwards, supra,
ORCP 12B provides that “[t]he court shall * * * disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.” There is
dictum
in
Duber v. Zeitler,
Affirmed.