                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            August 29, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 BRIAN RUNDQUIST,                                                     No. 49993-2-II

                                Appellant,

         v.

 MICHAEL E. FOX and JANE DOE FOX,                               UNPUBLISHED OPINION
 husband and wife, and the marital community
 composed thereof,

                                Respondents,

 FISCHER TRUCKING, LLC, a Washington
 State limited liability corporation; FISCHER
 TRUCKING, INC., a State of Georgia
 Corporation,

                                Defendants.

       JOHANSON, J. — Brian Rundquist appeals the summary dismissal on statute of limitations

grounds of his personal injury lawsuit against Michael Fox. Rundquist filed a lawsuit against Fox

and his alleged employer, Fischer Trucking Inc., shortly before expiration of the statute of

limitations. Rundquist served a Washington entity called Fischer Trucking within 90 days after

filing as required, but did not serve Fox within that period. The superior court dismissed

Rundquist’s claims as to Fox, concluding that the Fischer Trucking entity served was not a proper

defendant and therefore that service on that entity did not toll the statute of limitations as to Fox.
No. 49993-2-II


       We reverse the superior court’s order summarily dismissing Rundquist’s claims against

Fox because Fox failed to show the absence of a genuine dispute as to whether the Fischer

Trucking entity served was a proper defendant.

                                            FACTS

       On September 4, 2012, Rundquist and Fox were involved in a motor vehicle collision. Just

under three years later, on September 2, 2015, Rundquist filed a lawsuit seeking damages

stemming from the accident. The lawsuit named as defendants Fox and “Fischer Trucking, Inc., a

Washington State limited liability company,” (Washington Fischer Trucking) that Rundquist

alleged to be Fox’s employer. Clerk’s Papers (CP) at 1. On October 19, Rundquist served

Washington Fischer Trucking at its place of business in Snohomish County.

       On December 3, Rundquist amended his complaint to add Fischer Trucking Inc., a Georgia

corporation, (Georgia Fischer Trucking) as a defendant. The amended complaint alleged that

Georgia Fischer Trucking was Fox’s employer.1

       On February 22, 2016, Rundquist attempted to serve Fox by mail and by serving the

Washington Secretary of State in accordance with the nonresident motorist statute, RCW

46.64.040. On May 10, Fox filed an answer to the amended complaint wherein he denied the

paragraph alleging that the Fischer Trucking named by Rundquist was Fox’s employer.




1
  This amended complaint kept the Washington Fischer Trucking entity in the caption but removed
the reference to it in the “parties” subsection of the complaint and replaced it with the Georgia
Fischer Trucking corporation. However, this was allegedly the result of a mistake, which
Rundquist corrected by filing a second amended complaint on June 10, 2016, clearly naming both
Washington Fischer Trucking and Georgia Fischer Trucking as co-defendants. The superior court
ruled that the second amended complaint related back to the date of the original complaint.

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No. 49993-2-II


       On May 19, Fox filed a motion to dismiss under CR 12(b)(6) arguing, in relevant part, that

Rundquist’s claims were barred by the statute of limitations. Fox alleged that Rundquist had failed

to serve any proper defendant prior to the three-year statute of limitations expiring or within the

90-day tolling period after filing his complaint because Fox’s employer was Fischer Trucking Inc.,

an Indiana corporation, (Indiana Fischer Trucking), which had never been named in the lawsuit or

served. Notably, Fox’s argument that Indiana Fischer Trucking is Fox’s employer is unsupported

by any evidence in the record.

       In response, Rundquist argued that because Washington Fischer Trucking was properly

served within the tolling period, the motion to dismiss should be denied. Rundquist attached a

declaration of Jonathan Lee—Rundquist’s attorney—and four exhibits to his response to the

motion to dismiss. Lee’s declaration explained that after the motor vehicle accident, he learned

that Fox’s employer was “Fischer Trucking Inc.” and assumed that Fischer Trucking must be the

Fischer Trucking LLC doing business in Snohomish County because the accident occurred in

Washington. The attached exhibits included the police traffic collision report, Rundquist’s original

complaint, a copy of the declaration of personal service on Washington Fischer Trucking, and a

copy of the receipt of service with the Secretary of State on Fox. Fox did not file a responding

declaration.

       The superior court granted Fox’s motion to dismiss Rundquist’s claims against Fox, stating

in relevant part that “the Court does not agree that serving the wrong defendant makes the case

viable.” Report of Proceedings (RP) at 18. Rundquist appeals.




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No. 49993-2-II


                                            ANALYSIS

        Rundquist argues that the superior court erred by dismissing his claims against Fox on the

basis that he had failed to serve a proper defendant before the statute of limitations had run. Fox

contends that because Washington Fischer Trucking was not Fox’s employer it was an improper

party, and thus service on it did not toll the statute of limitations. We hold that Fox failed to prove

the absence of a genuine dispute that Washington Fischer Trucking was not Fox’s employer and

therefore was an improper party. Accordingly, we reverse the superior court’s order dismissing

Rundquist’s claims against Fox.

                             I. STATUTE OF LIMITATIONS AND TOLLING

        The three-year statute of limitations for Rundquist’s personal injury claims would have

expired on September 4, 2015. However, under RCW 4.16.170, the statute of limitations was

tolled for 90 days to allow service on one or more of the properly named defendants once

Rundquist filed his complaint. When service of process is achieved against one properly named

defendant, the statute of limitations is tolled as to all unserved defendants.                Sidis v.

Brodie/Dohrmann, Inc., 117 Wn.2d 325, 327, 815 P.2d 781 (1991). Although the tolling statute

provides some protection to plaintiffs in multi-defendant actions from the harsh effects of the

statute of limitations, the tolling statute does not allow plaintiffs to circumvent the statute of

limitations by naming and serving an improper defendant. Teller v. APM Terminals Pacific, Ltd.,

134 Wn. App. 696, 715, 142 P.3d 179 (2006) (holding that APM did not effectively toll the statute

of limitations by serving five defendants who were not Teller’s employer and thus not proper

parties to the lawsuit).




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No. 49993-2-II


       If a proper defendant is not served during the 90-day tolling period, the action shall be

deemed to not have been commenced. RCW 4.16.170; see also O’Neill v. Farmers Ins. Co. of

Wash., 124 Wn. App. 516, 523, 125 P.3d 134 (2004).

                                     II. STANDARD OF REVIEW

       As an initial matter, the parties disagree as to the proper standard of review in this case.

Rundquist contends that we should apply de novo review of the dismissal under CR 12(b)(6) and

must presume that all the allegations in his complaint are true. Fox argues that the motion to

dismiss was actually a converted summary judgment motion and should be disposed of as provided

in CR 56. Because the superior court considered matters outside the pleadings in ruling on the

motion, we agree with Fox and review the superior court’s decision as a decision on a motion for

summary judgment.

       If a party brings a motion to dismiss under CR 12(b)(6), but “matters outside the pleading

are presented to and not excluded by the court, the motion shall be treated as one for summary

judgment and disposed of as provided in [CR] 56.” CR 12(b)(7).               Summary judgment is

appropriate if there are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law. CR 56(c). We review a superior court’s decision on summary

judgment de novo. Didlake v. State, 186 Wn. App. 417, 422, 345 P.3d 43, review denied, 184

Wn.2d 1009 (2015).

       Here, the superior court considered facts beyond those stated in the pleadings. Specifically,

the superior court considered the declaration of Lee that included exhibits of (1) the accident police




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No. 49993-2-II


report, (2) Rundquist’s original complaint, (3) a declaration of service on Fischer Trucking LLC,

and (4) a receipt of service with the Washington Secretary of State. Therefore, because a motion

to dismiss for failure to state a claim is treated as a motion for summary judgment when matters

outside the pleading are presented to and not excluded by the court, we treat the superior court’s

dismissal of Rundquist’s lawsuit against Fox as a decision on a motion for summary judgment.

Sea-Pac Co. v. United Food & Commercial Workers Local Union 44, 103 Wn.2d 800, 802, 699

P.2d 217 (1985).

       When reviewing an order granting summary judgment, we engage in the same inquiry as

the superior court. Teller, 134 Wn. App. at 704. We will affirm an order granting summary

judgment if there are no genuine issues of material fact and the moving party is entitled to judgment

as a matter of law. CR 56(c). On summary judgment, the moving party has the initial burden to

show that there is no genuine issue of material fact. Lee v. Metro Parks Tacoma, 183 Wn. App.

961, 964, 335 P.3d 1014 (2014). A moving defendant can meet this burden by showing that there

is an absence of evidence to support the plaintiff’s case. Lee, 183 Wn. App. at 964. Once the

moving party has made such a showing, the burden shifts to the nonmoving party to set forth

specific facts that rebut the moving party’s contentions and show a genuine issue of material fact

exists. Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 169, 273 P.3d 965 (2012).




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No. 49993-2-II


                                    III. MATERIAL ISSUE OF FACT

          Fox contends that the superior court’s order was appropriate because “there was obviously

no admissible evidence . . . that Fox was employed by the limited liability company Rundquist

mistakenly identified in his complaint.”2 Br. of Resp’t at 12. Fox’s contention fails.

          As the moving defendant, Fox carried the initial burden to prove the absence of a genuine

issue of material fact. Fox claimed that the Indiana Trucking Company was the correct entity to

be served and because there is no evidence that the entity was served, Fox was entitled to judgment

as a matter of law. See CR 56(c); Michael v. Mosquera-Lacy, 165 Wn.2d 595, 601, 200 P.3d 695

(2009).

          The burden of proof then shifted to Rundquist, the nonmoving party.            Rundquist’s

complaint alleged that the Washington entity was Fox’s employer. And Rundquist supported his

claim with Lee’s declaration explaining that after the accident, Lee learned from Fox’s insurer that

Fox’s employer was Fisher Trucking Inc. and that he assumed that Fischer Trucking must be

Fischer Trucking LLC doing business in Snohomish County because the accident occurred in

Washington. This constitutes some evidence to support Rundquist’s claim that he properly served

the Washington entity as Fox’s employer. Thus, Rundquist created a genuine dispute of material

fact.




2
  Fox also contends that Rundquist’s service on Washington Fischer Trucking was invalid because
the original complaint improperly named the entity as “Fischer Trucking, Inc., a Washington State
limited liability company,” in the caption rather than Fischer Trucking LLC. Br. of Resp’t at 13.
However, this issue is moot because Rundquist’s second amended complaint, which related back
to the date of the original complaint, rectified the error and properly noted Washington Fischer
Trucking as “Fischer Trucking LLC.” Fox does not cross appeal the order granting Rundquist’s
motion to file the second amended complaint.

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No. 49993-2-II


       Fox presented no admissible evidence that Washington Fischer Trucking was not his

employer and thus not a proper party to the lawsuit. Fox’s counsel merely argued during the

hearing on his motion to dismiss that both parties knew and agreed that the Washington entity was

not Fox’s employer. But facts presented only in counsel’s statements must be disregarded. See

Bravo v. Dolsen Cos., 71 Wn. App. 769, 777, 862 P.2d 623 (1993), rev’d on other grounds, 125

Wn.2d 745, 888 P.2d 147 (1995).

       Because Fox failed to show an absence of a genuine dispute as to a material fact, Fox was

not entitled to summary judgment. Consequently, we reverse the trial court’s dismissal and

remand for further proceedings.

                                    IV. IMPROPER SERVICE ISSUE

       Rundquist also argues that the superior court erroneously based its decision to dismiss on

a conclusion that Fox was served via mail when Rundquist actually served Fox via the Washington

Secretary of State. However, the record shows that neither Fox’s motion to dismiss nor the

superior court’s decision to dismiss were based on the manner in which Fox was served. Rather,

the focus of both Fox’s motion and the superior court’s decision was the timing of that service and

the allegation that no proper defendant was served within the 90-day tolling period.

       Moreover, the record shows that Rundquist complied with the nonresident motorist statute,

RCW 46.64.040,3 when he served Fox. Thus, the manner of service on Fox would not be an

appropriate ground for dismissal.




3
 RCW 46.64.040 requires service of two copies of the summons on the secretary of state and
mailing of notice of such service, together with other statutorily required documents, to the
defendant’s last known address.
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No. 49993-2-II


        We reverse the superior court’s order summarily dismissing Rundquist’s claims against

Fox.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    JOHANSON, J.
 We concur:



 MAXA, A.C.J.




 LEE, J.




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