Hoyt v. Paulos , 96 Or. App. 91 ( 1989 )

DEITS, J.

Plaintiff appeals a judgment that dismissed her action for damages for personal injuries because she did not timely mail a copy of the summons and complaint to defendant’s insurer by certified, registered or other kind of “receipted mail.” We reverse.

Plaintiff filed her complaint on November 18, 1986, the final day of the two-year period of limitation. ORS 12.110. She alleged that, on November 18,1984, she suffered personal injuries when her vehicle was involved in an accident on a public street with a vehicle that defendant owned and negligently operated. Pursuant to ORCP 7D(4)(a)(i),¹ plaintiff served defendant by personally serving the Motor Vehicles Division on December 22,1986, and by mailing a copy of the summons and complaint by certified mail to defendant on December 30, 1986. However, she mailed a copy of the summons and complaint to defendant’s insurer on that date by regular mail. It is agreed that the insurer did not receive either the mailed copies or actual notice of the action within 60 days after November 18,1986. See ORS 12.020.²

Defendant moved to dismiss the action as not timely commenced, ORCP 21A(5) and (9), because plaintiff did not mail a copy of summons and complaint to defendant’s insurer by certified or registered mail. The court granted the motion. Plaintiff assigns the ruling as error, arguing that, under ORCP 7D(4) (a) (i), regular mail is sufficient when summons and complaint are mailed to a defendant’s insurer.

However, we conclude that, even if plaintiff was required by ORCP 7D(4)(a)(i) to give notice to defendant’s insurer by certified mail,³ her failure to do so does not mean that she has failed to commence the lawsuit within the applicable time requirements. ORS 12.020 governs when an action is deemed to have been commenced. It provides that,

“for the purpose of determining whether an action has been commenced within the time limited, an action shall be deemed commenced as to each defendant, when the complaint is filed, and the summons served on the defendant, or on a codefendant who is a joint contractor, or otherwise united in interest with the defendant.”

Here, plaintiff mailed a copy of the summons and complaint to defendant within the limit of the applicable statute and, thus, she commenced the lawsuit within the time limit.

Even if ORCP 7D(4)(a)(i) is read to impose a requirement that defendant’s insurer had to be given notice by certified mail, the requirement may not affect when an action is deemed commenced. The Council on Court Procedures, in promulgating the Rules of Civil Procedure, “shall not abridge, enlarge, or modify the substantive rights of any litigant.” ORS 1.735. If ORCP 7D(4)(a)(i) is construed to require that a defendant’s insurer be served by certified mail before an action is deemed to have been commenced, it would abridge plaintiffs substantive rights to maintain the action. Plaintiffs action was timely commenced in accordance with ORS 12.020.

Reversed and remanded.

1 ORCP 7D(4)(a)(i) provides:

“In any action arising out of any accident, collision, or liability in which a motor vehicle may be involved while being operated upon the roads, highways, and streets of this state, any defendant who operated such motor vehicle, or caused such motor vehicle to be operated on the defendant’s behalf, except a defendant which is a foreign corporation maintaining a registered agent within this state, may be served with summons by personal service upon the Motor Vehicles Division and mailing a copy of the summons and complaint to the defendant and the defendant’s insurance carrier if known.”

2 ORS 12.020(2) provides that, if summons is served within 60 days after filing the complaint, the action is “deemed to have been commenced upon the date on which the complaint in the action was filed.”

3 We express no opinion on whether ORCP 7D(4)(a)(i) requires that a defendant’s insurer be served by certified or registered mail.