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 No. 69668-8-1 DIVISION ONE UNPUBLISHED OPINION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

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### Grosse, J. —When a pjaintiff brings suitfor 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 acceptService forthe city ofLake Stevens under RCW period, the trial court properly granted summary 

### judgmentforthecityofLake SteVens anddismissed theclaims. 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 tasertraining 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 limitationNo. 69668-8-1 / 2 During this part ofthe 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 thefloorwith clips attached to hisright arm and left ankle and a certified taser instructor applied the taser on him for a few seconds. Afterward he complained ofback pain and on that same day, he filed
an injuryreport ofthe incidentwiththe 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 aboutthe recommendep methods ofexposure duringtasertraining. On September 30, 2009, Hyde received an e-mail from the training manager at 

### Taser International, who responded that the training guidelines stateto targetthe back or the legs and that shoulderand footexposures were notrecommended. 

### Hydefiled a negligence lawsuitagainst the City seeking damages under the LawEnforcement Officers' and Firefighters' Retirement SystemAct(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 CLERKfor 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. 

### OnNovember9, 2010, the City ^iled a notice of appearance "withoutwaiving any defects as to lack ofjurisdiction over subject matter, lack ofjurisdiction over 

### person, improper venue, insufficiency of process, insufficiency of service ofNo. 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 inresponse to Hyde's requestfor 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 oflimitations, 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 notentitled to reliefunder 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 andcomplainton theitnayor. 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, thecourtgranted the motion tostrike 

### 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, thecourt concluded ^hat "Service of Process isDefective; thestatute oflimitations 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 acquiringjurisdiction over a 

### city."1 Accordingly, "[wjhen a statute designates a particular person or officer uponwhom service of process is to be made in an action against a municipality, 

### no otherperson orofficermay besubstituted."2 Noris it reasonableto rely on a 

## governmentemployee'srepresentation ratherthanthestatutorylanguage.3 Here, the City served the HR director, Steve Edin, on November 3, 2010, 

### and again on December 21, 2010. Underthe plain language of the statute, this does not constitute proper service. Indeed, the city clerkconfirmed 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. 

### 3Davidheiser 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 

### theyrelied on agovernmentemployee'sdirection to serve thewrong 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; inthese 

### 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, hecontends, itdid notexpire 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 

### plaintiffknew 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 

### productand harm atthetimethe harm actuallyoccurred.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 

### 4RCW4.16.080(2) (an action fdr any"injuryto theperson" shall becommenced 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 inordinary 

### 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 tasertraining. 

### 6BriefofAppellantat37. 7White v. Johns-Manville Corp., 8 North CoastAir Servs.. Ltd. v. 405(1988). 103 Wn.2d 344, 348, 693 P.2d 687 (1985). Grumman Corp., 111 Wn.2d 315, 319, 759 P.2dNo. 69668-8-1 / 6 that the statute of limitations for products liabilityclaims begins to run "from the 

## time the claimant discovered oij in the exercise of due diligence should have discovered theharm andits cause."9 There, a pilotdiedin 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 thatthe 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 inother 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 9North 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 at31& 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 injurysustained 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 injurydescribed above was directly and proximately caused bythe negligence ofDefendant 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 adirectand proximate resultofthe negligenceand 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 infact
cause of the injury was misuse discover at the time ofthe 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 laterdiscovery that cause of action accrues at the time the act or , this was when the tasing and resulting injury

brought a claim ofnegligent misrepresentation being tased was not a requirementto become a 

### police officer. He alleges thatthis was not what he wastold at thetime of the tasertraining anddid not learn tpis until June 20, 2011. Thus, hecontends 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, 118Wn.2d at 744 (refusing to apply discovery rule inwrongful 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 argumentiswithoutbasis. Finally, Hyde contends that even ifthe statute oflimitations 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 Lvbbertv. GrantCounty, where the courtheld 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 oflimitations.17 The courtexplained that such a waiver can occur"ifthe defendant's assertion ofthe defense is inconsistentwith 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 ofit byfailing to assign it as error and argue itin 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. 8No. 69668-8-1 / 9

was filed, but infact 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 

### waspreparing tolitigatethemeritswithoutanymention ofdefective process.19 Hyde argues that similarly here, the Citywaived its defenses of insufficient process and statute of limitations by filing a notice ofappearance after the initial service on Edin, continuing to engage in discovery untilthe 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 inconsistentwith its previous behaviororthat 

### its counselwasdilatory in asserting thedefense.20 Rather, therecord showsthat the City asserted insufficient service ofprocess more than once and did so well before the statute of limitations expired. On January 19, 2011, the Cityfiled an 

### answer, asserting insufficient process. OnApril 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 oflimitations expired, unlike the plaintiff in Lvbbert who was unfairly surprised with the defense only afterthe 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 ofengaging in 

### discovery 'is not always tantamount to conductinconsistentwith a later assertion of the defense ofinsufficientprocess'") (quotingRomiuev. Fairchild. 60 Wn. App. 278, 281, 803 P.2d 57 (1991)). 9No. 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 ofthe claims.
We affirm.

WE CONCUR: 

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