### No. 80-35 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

EDMUND 

### W. BEEDIE and TRUCK INSURANCE EXCHANGE,Plaintiffs and Appellants,-vsJOHN SHELLEY and MARTHA SHELLEY, Defendants and Respondents.

Appeal from: The District Court 

### of the Thirteenth Judicial District, 

### In Yellowstone County, The Honorable Robert H. Wilson, Judge presiding. Counsel of Record: For Appellants: Lewis E. Brueggemann, Billings, Montana

For Respondents: Hibbs, Sweeney, Colberg, Jensen and Koessler, Billings, Montana

Submitted on Briefs: March 21, 1980 

## MdY

## 6

# - 7984 Decided: --

1:

# -

# 1J83 Filed: &-Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. Plaintiffs Edmund Beedie and Truck Insurance Exchange brought this action in the DistrictCourt of Yellowstone County torecover damages for injuries sustained as a result of defendants' alleged negligence. The complaint 

### was filed

on October 15, 1979, and both parties filedmotions for summary judgment with accompanying briefs and affidavits. The DistrictCourt held 

### a hearing on the motions, granted summary judgment for the defendants and dismissed the plaintiffs' action. Plaintiffs appeal from this dismissal. Plaintiff Edmund Beedie 

### is an employee of Goodan Conoco Service Station located inLewistown, Montana. Beedie was injured on September 6, 1976, when he 

### was hit by defendant Martha Shelley's motor vehicle, driven by defendant John Shelley, as he 

### was walking from the shop area to the gas pump island of the service station. Beedie received head and leg injuries and 

### was unable to return to work for over 12weeks. Beedie's employer filed 

### a workers' compensation claim which was settled on July 14, 1978. Plaintiff Truck Insurance Exchange made finalpayments toBeedie on July 17, 1978, and has asserted a subrogation claim in the amount of $7,728.06. John Shelleymoved toMedford, Oregon, inJune 1978 and Martha Shelley joined him there inAugust 1978. There 

### was some question raised in the DistrictCourt concerning the reasons for thismove and whether or not plaintiffs were aware of defendants' location. plaintiffs contend that defendants fled the 

### state to avoid service of process for this suitand that they 

### were unaware of defendants' whereabouts until September 28, 1979. They argue that this disappearance from the state tolled the statute of limitations.

### Defendants, however, presented evidence in the District 

### Court showing bona fide reasons for leaving the 

### state and also that an agent of plaintiff-insurer was aware of their

new addresses. Defendants argue that they 

### were 

### atall

### times available to service and therefore the statuteof limitations had run by the 

### time the action

### was filed. Although appellants raise four issues on appeal, this

case can be decided on the single issue of whether the District

### Court erred ingranting summary judgment based on the running of the statuteof limitations. Appellants initially contend that the statuteof 

### limitations

### was tolled because respondents 

### were outside the State of Montana during periods of 

### timeafter the date of the accident. This contention 

### isbased on section 27-2-402, MCA. 

### Respondents, on the other hand, argue that although they have been nonresidents and outside Montana atcertain 

### times subsequent to the date of the accident, they have always been available for service of process under Rule 4D(3), M.R.Civ.P. (Montana's long-arm statute). InMontana a tort action must be commenced within three years of the commission of the tort. Section 27-2-204, MCA. 

### Section 27-2-402, MCA, 

### provides: "If when the cause of action accrues against a person he isoutof the 

### state, the actionmay be commenced within the term herein limited after his return to the state; and if after the cause of action accrues he departs from the state, the 

### timeof his absence 

### is not part of the 

### time

### limited for the commencment of the action." Rule 4D(3), M.R.Civ.P., provides: "Personal service outside the state. Where 

### service upon any person cannot, with due diligence, be made personally within this state, service of summons and complaint may be made by service outside this 

### state inthe manner provided for servicewithin this 

### state, with the 

### same force and effect as though service had been made within

### this state. Where serviceby publication 

### is permitted ashereinafter provided, personal service of a summons and complaint upon the defendant out of the 

### state shallbe equivalent to and shall dispense with the procedures and the publication and mailing provided for hereafter in 4(5)(c), 4

### (5)(d) and 

### 4(5)

### (e)of thisrule. " 

### Rule 4B(1) 

## ,M.R..Civ.P., provides inpertinent part: 

# ".



# . . any person 

### is subject to the jurisdiction of the courts of this state

### as to any claim for relief arising from the doing personally, through an employee, or through an agent, of any 

### of the following acts:



### "(b) the commission of any 

### act which results in accrual within this stateof a tortaction;

### " When Rules 4B(1)

### and 4D

### (3) 

### are read together, it becomes readily apparent that respondents here 

### were atall

### times subject to the jurisdiction of Montana courts and 

### were therefore amenable to service of process. This Court faced 

### a similar situation in State ex 

### rel. McGhee 

### v. DistrictCt. 

### of Sixteenth J.D. 

### (1973), 162Mont. 31, 508 P.2d 130. InMcGhee the petitioner requested a 

### writ of supervisory control seeking to compel the 

### trial court to grant summary judgment based on the running of the statute of limitations. The 

### case involved 

### a wrongful death action against a ranching pz.rtnership collectively and the partners individually. The accident occurred on December 20, 1968, while R. W. 

### McGhee 

### was present inthe state. He 

### continued toreside inthe StateuntilMay 1971and after that datehe resided inUtah. The complaint was filed on January 4, 

### 1972, and R. W. 

### McGhee 

### was served on May 30, 1972, inUtah, pursuant to the long-arm statute. InMcGhee 

### we granted petitioner's request for supervisory control and held thatwhere plaintiff could effectively serve defendant outside the 

### state, absence from thestatewould not toll the statute of limitations. We stated: "The purpose of section 93-2702, R.C.M. 1947 [now section 27-2-402, MCA], 

### is toprevent a defendant from defeating a plaintiff's claim for relief by leaving the stateorby establishing residence inanother state. But, there 

### is an exception to this rule. In cases where the plaintiff may effect service of process 

### by some method, even though the defendantmay be 

### a nonresident or absent from the 

### state, the statute continues torun during the absence or nonresidency 

# . 

# ..

"The alieged tortwas committed by R. W. McGhee while he resided inMontana and under Rule 4B(1), M.R.Civ.P., this subjectshim to the jurisdiction of theMontana courts. By being subject to the jurisdiction of respondent court and capable of being served during the entire 

### time, the statuteof limitations

### was not tolled

# . . 

# ." 508 P.2d 

### at 131-32. See also, State

### v. District Court of Fourth Judicial District (1966), 148 Mont. 22, 417 P.2d 109; Baker v. Ferguson Research, Inc. (D. Mont. 1974), 61F.R.D. 637. In the instant case, the accident occurred on September 8, 1976. Defendant John Shelley resided in this stateuntil June 1978 when he moved toMedford, Oregon, followed shortlyby hiswife inAugust 1978. The defendants

### were uninsured atthe 

### timeof the accident; however, shortly after the accident, Martha was insured by Mid-Century Insurance Exchange and John by Farmers Insurance Exchange, both affiliated companies of appellant Truck Insurance Exchange. Exhibits produced inthe District Court indicated that

### as of earlyAugust 1979 Truck Insurance Exchange had knowledge of the Shelleys' Oregon address. This address was 

### later utilized in serving respondents with the summons and complaint. The complaint here was filed October 15, 1979. The delay infiling the complaint 

### was apparently caused by' appellants' desire to ascertain whether the Shelleys hadsufficient assets to answer for any judgment before going ahead with a lawsuit. This reason 

### is not sufficient to toll the statute of limitations, asappellants could have filed the complaintbefore the statuteof limitations ran and served 

### itwithin a reasonable 

### time thereafter. Rule 3, M.R.Civ.P. The Shelleys

### were residents of Montana 

### atthe 

### timeof the accident. Under Rule 4B(1)this subjected them to thejurisdiction of the Montana courts. Because they



### were subject toour jurisdiction and capable of being served during the entire 

### time, the statute of limitations was not tolled. State ex 

### rel. McGhee v. DistrictCt. of Sixteenth J.D., supra. Appellants next contend that the defense of statute of limitations 

### is not available against 

### its subrogation claim. We disagree. Appellants' claim 

### is one of subrogation. It 

### is derived from that of the insured and 

### is subject to the

same defenses, including the statuteof limitations as though the action

### were sued upon by the insured. SunsetSternau Food Co. v. Bonzi (1964), 60 Cal.2d 834, 36 Cal.Rptr. 741, 389 P.2d 133; May Trucking Co. v. International Harvester Co. (1975), 97 Idaho 319, 543 P.2d i159. Therefore, the statuteof limitations began running atthe 

### timeof the accident, September 8, 1976. The DistrictCourt acted correctly ingranting respondents' motion for summary judgment. Affirmed.V7e 

### concur: 

# %-444%pt,&

Chief 

### Justice