Steven W. Hyde, Et Ux., Appellants V. City Of Lake Stevens, Respondent

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UNPUBLISHED OPINION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
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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
1 Meadowdale Neighborhood C^mm. v. Edmonds, 27 Wn. App. 261, 267, 616
P.2d 1257 (1980).
2 Meadowdale, 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
4 RCW 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.").
5 September 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 is without 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 of defective 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:
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