IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STEVEN W. HYDE and SANDRA D.

BROOKE, husband and wife,

Appellant,

CITY OF LAKE STEVENS,

Respondent.

No. 69668-8-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: January 21,2014

o fO COO _«.• —<d jc- y>zn

3» o

a= o-n

(V> "V3 ~"" S. -TJ f

3>-T3,—|

3a» ££b

iff- mmm o^° * * -<D O o~

CO z<

Grosse, J. —When a pjaintiff brings suit for injury caused by negligent

use of a weapon and he fails! to show that he could not have immediately

discovered that this was a possible cause of his injury, the statute of limitations

began to run from the date of injury. Because Steven Hyde failed to serve

someone authorized to accept Service for the city of Lake Stevens under RCW

period, the trial court properly granted summary

judgment for the city of Lake SteVens and dismissed the claims. Accordingly, we

affirm.

FACTS

On June 2, 2009, the city of Lake Stevens (City) offered Steven Hyde a

position as a police officer. As part of his training, Hyde participated in taser

training. He completed the written taser training portion on June 10, 2009 and on

the next day, June 11, 2009, H/de participated in the practical taser application

and testing.

4.28.080(2) within that limitation
No. 69668-8-1 / 2

During this part of the trailing, Hyde was subjected to a short burst of the

taser weapon in accordance with the taser training protocol. Before the tasing

took place, Hyde signed a release from Taser International, the manufacturer of

the weapon. Hyde then lied doWn on the floor with clips attached to his right arm

and left ankle and a certified taser instructor applied the taser on him for a few

seconds. Afterward he complained of back pain and on that same day, he filed

an injury report of the incident with the City.

On August 28, 2009, Hyde had surgery on his back because the pain had

not resolved. On September 25, 2009, Hyde contacted Taser International,

inquiring about the recommendep methods of exposure during taser training. On

September 30, 2009, Hyde received an e-mail from the training manager at

Taser International, who responded that the training guidelines state to target the

back or the legs and that shoulder and foot exposures were not recommended.

Hyde filed a negligence lawsuit against the City seeking damages under

the Law Enforcement Officers' and Firefighters' Retirement System Act (LEOFF),

November 3, 2010, served a summons and

complaint on the City's Human Resource (HR) Director, Steve Edin. The

Declaration of Service stated:

chapter 41.26 RCW, and on

[T]he declarant duly served the above described documents upon

NORMA SCOTT as CITY CLERK for CITY OF LAKE STEVENS by

then and there personally delivering 1 true and correct copy(ies)

thereof, by then presenting to and leaving the same with STEVE

EDIN HR DIRECTOR.

On November 9, 2010, the City ^iled a notice of appearance "without waiving any

defects as to lack of jurisdiction over subject matter, lack of jurisdiction over

person, improper venue, insufficiency of process, insufficiency of service of
No. 69668-8-1 / 3

process

On December 21, 2010, Hyde again served the summons and complaint

on Edin. On January 19, 2011i the City filed an answer, asserting insufficient

process. On April 19, 2011, the City again denied proper service in response to

Hyde's request for admissions.

On August 23, 2012, the City filed a motion for summary judgment,

seeking dismissal because Hyde? had failed to properly serve the City within the

statute of limitations, arguing that the HR director was not authorized to accept

service for the City. The City further contended that Hyde was not a

commissioned police officer and therefore not entitled to relief under the LEOFF

statute, Hyde's wife had no cognizable spousal consortium claim under the

LEOFF statute, and Hyde's claims were barred by his signed release and

express assumption of risk.

On September 4, 2012, Hyde served the summons and complaint on

Norma Scott, the city clerk. On September 10, 2012, Hyde filed a response to

the summary judgment motion On September 24, 2012, Hyde served the

summons and complaint on the itnayor.

On October 5, Hyde submitted supplemental briefing and evidence on the

summary judgment motion and the City moved to strike these materials as

untimely submitted. On Octobe-17, 2012, the court granted the motion to strike

the supplemental materials and granted the City's summary judgment motion.

Hyde moved for reconsideration, which was denied. Hyde appeals.
No. 69668-8-1/4

ANALYSIS

Hyde challenges the court's dismissal based on his failure to properly

serve the City within the statute of limitations. In its order granting summary

judgment, the court concluded ^hat "Service of Process is Defective; the statute

of limitations began to accrue on June 11, 2009." We agree.

Service on the HR director was not proper service as required by RCW

4.28.080(2), which provides in part:

Service made in the modes provided in this section shall be taken

and held to be personal service. The summons shall be served by

delivering a copy thereof, as follows:

If against any town or incorporated city in the state, to the mayor,

city manager, or, during normal office hours, to the mayor's or city

manager's designated agent or the city clerk thereof.

Our courts require "strict compliance with the statutory requirements of

service of process as a prerequisite to the court's acquiring jurisdiction over a

city."1 Accordingly, "[wjhen a statute designates a particular person or officer

upon whom service of process is to be made in an action against a municipality,

no other person or officer may be substituted."2 Nor is it reasonable to rely on a

government employee's representation rather than the statutory language.3

Here, the City served the HR director, Steve Edin, on November 3, 2010,

and again on December 21, 2010. Under the plain language of the statute, this

does not constitute proper service. Indeed, the city clerk confirmed that the HR

1Meadowdale Neighborhood C^mm. v. Edmonds, 27 Wn. App. 261, 267, 616

P.2d 1257 (1980).

2Meadowdale, 27 Wn. App. at 264.

3 Davidheiser v. Pierce Cntv.. ^2 Wn. App. 146, 152-55, 960 P.2d 998 (1998),

rev, denied. 137 Wn.2d 1016 (1999) (rejecting plaintiffs' estoppel argument that

they relied on a government employee's direction to serve the wrong person).
No. 69668-8-1 / 5

director was not authorized to accept service for the City. While Hyde did

eventually serve the city clerk on September 4, 2012 and the mayor on

September 24, 2012, this was beyond the statute of limitations period, which, as

the trial court correctly concluded, began to run from the date of injury on June

11, 2009 and expired on August

Hyde contends that the

September 30, 2009, when he

which applies "[i]n certain torts

they have been injured; in these

10, 2012.4

statute of limitations did not begin to run until

first learned that his injury was caused by the

training officer's negligence.5 Thus, he contends, it did not expire until November

29, 2012, after he served the dty clerk.6 Hyde invokes the "discovery rule,"

[when] injured parties do not, or cannot, know

cases, a cause of action accrues at the time the

plaintiff knew or should have known all of the essential elements of the cause of

action."7 The rule has been apblied in products liability cases when a claimant

cannot readily ascertain the factual causal relationship between a defective

product and harm at the time the harm actually occurred.8

Hyde relies on North Coast Air Services v. Grumman Corp., where the

court addressed the applicability of the rule to RCW 7.72.060(3), which provides

4RCW 4.16.080(2) (an action fdr any "injury to the person" shall be commenced

within three years); RCW 4.96.020(4) (providing an additional 60-day claim

period for tort claims against local government entities); Matter of Estates of

Hibbard, 118 Wn.2d 737, 744, 826 P.2d 690 (1992) ("The general rule in ordinary

personal injury actions is that a cause of action accrues at the time the act or

omission occurs.").

5September 30, 2009, was the^ date on which Hyde received the e-mail from

Taser International stating that shoulder and foot exposures were not

recommended during taser training.

6BriefofAppellantat37.

7 White v. Johns-Manville Corp.,

8 North Coast Air Servs.. Ltd. v.

405(1988).

103 Wn.2d 344, 348, 693 P.2d 687 (1985).

Grumman Corp., 111 Wn.2d 315, 319, 759 P.2d
No. 69668-8-1 / 6

that the statute of limitations for products liability claims begins to run "from the

time the claimant discovered oij in the exercise of due diligence should have

discovered the harm and its cause."9 There, a pilot died in a plane crash and the

initial investigation attributed the fcause to pilot error and concluded there were no

mechanical defects in the plane 10 The pilot's father learned 11 years later that

the crash was a result of a defect in the plane only after he heard of later

incidents involving this same

crashes.11

aircraft where the defect resulted in similar

The court interpreted RCyV 7.72.060(3) to require that "the claimant in a

product liability case must have discovered, or in the exercise of due diligence

should have discovered, a factual causal relationship of the product to the harm,"

in order for the statutory limitation period to start running.12 Accordingly, the

court held:

[l]n this case the action did not accrue at the time claimant knew of

the harm (death) and knew that the apparent and immediate cause

[W]e hold that the claimant must know or should

that the cause in fact was an alleged

was the crash. .

with due diligence know

defect.1131

But here, there is no products liability claim. Thus, the rule in North Coast

does not apply. And while the discovery rule has been applied in other contexts,

our courts have been careful to limit its application

to claims in which the plaintiffs could not have immediately known

professional malpractice, occupational

or concealment of information by the

the rule is extended to claims in which

of their injuries due to

diseases, self-reporting

defendant. Application o

9 North Coast, 111 Wn.2d at 317.

10 North Coast, 111 Wn.2d at 317.

11 North Coast, 111 Wn.2d at 317-18.

12 North Coast. 111 Wn.2d at 31 &

13 North Coast, 111 Wn.2d at 319.
No. 69668-8-1 / 7

plaintiffs could not imrrjediately know of the cause of their

injuries.[14]

Hyde alleges no such claims. Rather, Hyde's complaint simply alleges

negligence that caused an injury sustained on June 11, 2009 from the tasing:

6. On or about June 11] 2009 Plaintiff Steven W. Hyde in the

course of his employ by Defendant was tased. As a result of said

tasing Plaintiffs suffered injury.

7. The injury described above was directly and proximately caused

by the negligence of Defendant City of Lake Stevens.

8. The tasing described above was an inherently and abnormally

dangerous activity rendering Defendant liable for any resulting

harm to Plaintiffs.

9. As a direct and proximate result of the negligence and inherently

dangerous activity described above, Plaintiffs have suffered, and

will in the future suffer, medical costs and expenses, financial loss,

physical injury, pain ami suffering, emotional distress, mental

anguish, loss of consortium and other damages to be identified and

proved at the time of trial.

While Hyde did not in fact

cause of the injury was misuse

discover at the time of the injury that a possible

of the taser, he fails to show that he could not

have made that inquiry at the time. Accordingly, as an ordinary personal injury

claim, the general rule is that a

omission occurs.15 In this case

occurred, on June 11, 2009.

Hyde also asserts that he

based on his later discovery that

cause of action accrues at the time the act or

, this was when the tasing and resulting injury

brought a claim of negligent misrepresentation

being tased was not a requirement to become a

police officer. He alleges that this was not what he was told at the time of the

taser training and did not learn tpis until June 20, 2011. Thus, he contends that

the statute of limitations for the claim did not expire before he served the city

14 Hibbard, 118 Wn.2d at 749-50,

15 Hibbard, 118 Wn.2d at 744 (refusing to apply discovery rule in wrongful death,

rape, and negligence case).
No. 69668-8-1 / 8

clerk. But as the City correctly points out, Hyde did not plead any claim of

negligent misrepresentation. As noted above, his complaint simply alleged

negligence resulting in an injury from the tasing on June 11, 2009 and he points

to no amended complaint in the record that reflects the addition of this claim.

The only mention of such a claim was raised in Hyde's motion for

reconsideration, which was rejected by the trial court and to which he has not

assigned error.16 Thus, this argument iswithout basis.

Finally, Hyde contends that even if the statute of limitations had expired

before he made proper service, the trial court should have found that the City

waived the affirmative defensive of defective service because it had

impermissibly "lied in wait," and then asserted insufficient process only after the

limitation period had run, thereby depriving him of the opportunity to cure the

service defect. Hyde relies on Lvbbert v. Grant County, where the court held that

the county waived its right to assert insufficiency of service when it sought

dismissal based on Lybbert's failure to properly serve the county within the

statute of limitations.17 The court explained that such a waiver can occur "if the

defendant's assertion of the defense is inconsistent with the defendant's previous

behavior," or "if the defendant's counsel has been dilatory in asserting the

defense."18 The court held that the county waived the defense because it had

initially represented that it was preparing an answer shortly after the complaint

16 While Hyde included the order on reconsideration in his notice of appeal, he

has waived review of it by failing to assign it as error and argue it in his opening

brief. State v. Sims, 171 Wn.2d 436, 441, 256 P.3d 285 (2011) ("an appellant is

deemed to have waived any issues that are not raised as assignments of error

and argued by brief.").

17 141 Wn.2d 29, 32, 1 P.3d 1124 (2000).

18 Lvbbert, 141 Wn.2dat39.

8
No. 69668-8-1 / 9

was filed, but in fact did not file an answer or assert defective process until after

the statute of limitations expired and up until that point had acted as though it

was preparing to litigate the merits without any mention ofdefective process.19

Hyde argues that similarly here, the City waived its defenses of insufficient

process and statute of limitations by filing a notice of appearance after the initial

service on Edin, continuing to engage in discovery until the statute of limitations

expired, and then moving for summary judgment after it expired based on

insufficient process. But unlike in Lvbbert, Hyde fails to show that the City's

assertion of insufficient service was inconsistent with its previous behavior or that

its counsel was dilatory in asserting the defense.20 Rather, the record shows that

the City asserted insufficient service of process more than once and did so well

before the statute of limitations expired. On January 19, 2011, the City filed an

answer, asserting insufficient process. On April 19, 2011, the City again denied

proper service in response to Hyde's request for admissions. In response to

requests for production, on April 21, 2011, the City submitted a copy of the

process server's declaration showing that the HR director was served. Thus,

Hyde had over a year to cure the defect before the statute of limitations expired,

unlike the plaintiff in Lvbbert who was unfairly surprised with the defense only

after the limitation period expired.

The trial court did not err by concluding that the statute of limitations

began to run from the date of the tasing injury and expired before proper service

19 Lvbbert, 141 Wn.2dat33

20 See Lvbbert. 141 Wn.2d at 41 (recognizing that "the mere act of engaging in

discovery 'is not always tantamount to conduct inconsistent with a later assertion

of the defense of insufficient process'") (quoting Romiue v. Fairchild. 60 Wn. App.

278, 281, 803 P.2d 57 (1991)).

9
No. 69668-8-1/10

was made on the City. Thus, the trial court properly dismissed the lawsuit on this

basis alone. Accordingly, we need not reach the remaining arguments

addressing the substance of the claims.

We affirm.

WE CONCUR:

J

%0i;^<Vv £**,3

10