Kim v. Lakeside Adult Family Home ( 2016 )

·F·I~l:E
/ IN CLERKS OFFICE~
1UPREME COURT, STATE OF WASHINGTON
i DATE MAY 1 2 20'16
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CHIEF USTICE . Supreme court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
ESTHER KIM, as Personal Representative of
the Estate ofHO IM BAE on behalf ofMi-Soon
Kim, J ae C. Kim, Chang Soon Kim, Jae Hong
Kim, and Kyoung Soon Kim, surviving family
members; and the ESTATE OF HO IM BAE,
Petitioners/Cross Respondents,
v. NO. 91536-9
LAKESIDE ADULT FAMILY HOME;
GRETCHEN DHALIWAL INCORPORATION
(G.D., INC.), a Washington corporation d/b/a
LAKESIDE AFH; and GRETCHEN
DHALIWAL, individually; and JANE and
JOHN DOES I-V, individually, ENBANC
Defendants,
ALPHA NURSING AND SERVICES
INCORPORATED, a Washington corporation,
MAY 1 2 2016
Respondent,
and
CHRISTINE THOMAS, individually,
Respondent/Cross Petitioner.
Kim, eta!. v. Lakeside Adult Family Home, eta!., 91536-9
STEPHENS, J.-Ho Im Bae died from acute morphine intoxication at Lakeside
Adult Family Home. Esther Kim, the personal representative ofBae's estate, brought
tort claims against several individuals involved in Bae's care. This appeal concerns
claims against Alpha Nursing & Services Inc. and two of its nurses, who did not provide
nursing services to Bae, but who are alleged to have observed signs of abuse and
physical assault that should have been reported to the Department of Social and Health
Services (DSHS) and law enforcement. The primary issue before us is whether the
abuse of vulnerable adults act (AVAA), chapter 74.34 RCW, 1 creates an implied cause
of action against mandated reporters who fail to report abuse.
The trial court granted the defendants' motion for summary judgment. The Court
.,
of Appeals affirmed, holding that one of the nurses did not have a duty to report and the
other nurse fulfilled her reporting duty by contacting DSHS. Kim v. Lakeside Adult
Family Home, 186 Wash. App. 398,416,345 P.3d 850, review granted, 183 Wash. 2d 1017,
355 P.3d 1152 P.3d 1152 (2015). We reverse the Court of Appeals on this issue. The
AV AA creates a private cause of action against mandated reporters who fail to report
abuse, and genuine issues of material fact preclude summary judgment.
A separate issue is whether the claims against one of the nurses should be
dismissed for insufficient service. The nurse, Christine Thomas, moved to Norway.
The plaintiff personally served her there almost a year after filing the amended
complaint and properly serving Alpha. The plaintiff also delivered a copy of the
1 This statute has been amended multiple times since the commencement of this
action. Except where indicated, these changes do not impact our analysis. For ease of
reference, unless otherwise specified, we cite to the current version of the statute.
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summons and complaint to Norway's designated central authority pursuant to the
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters, Nov. 15, 1965,20 U.S.T. 361 (Hague Convention). The
trial court denied Thomas's motion to dismiss, and the Court of Appeals affirmed. Kim,
186 Wash. App. at 416. We agree with the Court of Appeals that the statute oflimitations
was tolled but disagree that personal service was proper. Consistent with Norway's
ratification of the Hague Convention, however, the plaintiff acted with reasonable
diligence in serving Thomas through Norway's designated central authority. We
therefore affirm the lower courts' denial of the motion to dismiss.
Both parties seek attorney fees, but we deny their requests as premature because
neither party has yet prevailed. We remand this case to the trial court for further
proceedings.
FACTS AND PROCEDURAL HISTORY
This appeal arises out of an order granting summary judgment to defendants
Alpha and Thomas, dismissing claims brought by Esther Kim, the personal
representative of the estate ofHo Im Bae (collectively Kim). Presented below are the
undisputed facts in this case. Additional facts are provided in the analysis section as
necessary.
Ho Im Bae, a resident of Lakeside Adult Family Home, 2 died of acute morphine
intoxication on March 30, 2009. The state medical examiner ruled the death a
2
Neither Lakeside nor its owner, Gretchen Dhaliwal, are parties to this appeal. See
Clerk's Papers (CP) at 22-24.
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homicide. The autopsy report and a photo in the record reveal visible bruising on Bae' s
head and neck. The primary suspect, Fanny IrawatV was one ofBae's caregivers and
is not a party to this lawsuit.
Alpha is a home health agency that provides nursing services to patients living
in adult family homes, assisted living facilities, and private homes. At the time ofBae' s
death, Alpha employed two nurses who visited patients at Lakeside: Thomas, RN, and
Marion Binondo, LPN. 4 Bae was not one of Alpha's patients. Neither Thomas nor
Binondo provided her with nursing services.
On March 28 or 29, 2009, Binondo was visiting her patient Kerri Salzbrun at
Lakeside. Binondo and Salzbrun heard a "thump" or a "thud" from an adjacent room
and went into that room. Binondo saw a woman, now identified as Bae, lying on the
floor. Binondo at least suggested to Bae's caregiver, Irawati, that she may want to call
911. Irawati responded that Bae "falls a lot" and that she would call Dhaliwal,
Lakeside's owner who is also a nurse. Irawati put Bae back in bed, and Binondo saw
that Bae was moving her legs. When Binondo left Lakeside, Irawati was on the phone.
Binondo did not call either DSHS or 911 emergency services at that time.
On March 30, 2009, Thomas visited Salzbrun at Lakeside. During that visit,
Salzbrun told Thomas that Irawati had been giving Bae morphine. Thomas observed
Irawati dragging or pulling Bae into the bathroom. Bae was not moving her feet. Bae
3
This does not appear to be her real name, although it is the name the parties use.
See CP at 851. Her real name is unknown, so to be consistent with the parties' designation,
we refer to her as "Irawati."
4 Binondo is not a named party to this suit. CP at 925-26.
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appeared to Thomas as either "heavily sedated" or at a "decreased level of
consciousness." Clerk's Papers (CP) at 767, 179. Thomas looked at Bae's records and
determined that Bae was not prescribed morphine. Thomas left the home at
approximately 9:55 a.m. and called DSHS at approximately 10:00 a.m. The DSHS
hotline number was busy. Thomas called again at approximately 11:30 a.m. and left a
message describing her observations and Salzbrun's assertion that Bae was being given
morphine.
On April1, 2009, Thomas and Binondo were working at Alpha's office. Thomas
informed Susan Gange, Alpha's director of nursing, that she had called DSHS on March
30 to report her concerns about Bae. At Gange's request, Thomas prepared a written
statement for Alpha's files describing what she had told DSHS. That same day, Thomas
told Binondo about her observations at Lakeside. Based on that conversation, Binondo
believed the woman she heard fall may have been the same woman Thomas observed
being dragged into the bathroom. Binondo spoke with Gange about the fall, and Gange
instructed Binondo to report the incident to DSHS.
Thomas, a Norwegian citizen who had lived in the United States for over 25
years, moved back to Norway in August 2010. Kim filed her first amended complaint,
in which she added Alpha and Thomas as defendants, on March 20,2012. Kim served
Alpha on March 26, 20 12. Service on Thomas is at issue and is discussed in detail
below.
On April 3, 2013, Thomas moved to dismiss under CR 12(b)(4), (5), and (6),
arguing that Kim failed to commence litigation against Thomas within the three-year
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statute of limitations period, and that Kim failed to properly serve Thomas under the
Hague Convention. Judge RichardT. Okrent denied the motion to dismiss on May 1,
20 13. Thomas moved to certify the order denying the motion to dismiss for immediate
appellate review. On June 18, 2013, Judge Janice E. Ellis granted the motion for
certification.
On March 28,2013, Alpha and Thomas moved for summary judgment. Judge
George F.B. Appel granted their motion on July 16, 2013, and denied Kim's motion for
reconsideration on August 2, 2013. Kim appealed the order granting summary
judgment, and it was joined with Thomas's cross appeal of the order denying her motion
to dismiss. Division One of the Court of Appeals affirmed both decisions. J(im, 186
Wash. App. 398. Kim petitioned this court for review, and Thomas cross petitioned for
review. We granted both petitions for review. Kim, 183 Wash. 2d 1017.
ANALYSIS
The primary issue in this case is whether the mandatory reporting provision of
the AVAA, RCW 74.34.035, creates an implied private cause of action for negligent
failure to report abuse. "Statutory interpretation is a question oflaw reviewed do novo."
Beggs v. Dep 't of Soc. & Health Servs., 171 Wash. 2d 69, 75, 247 P.3d 421 (2011).
Applying the test this court developed in Bennett v. Hardy, 113 Wash. 2d 912, 784 P.2d
1258 (1990), we hold that RCW 74.34.035 creates an implied cause of action.
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1 The AVAA Creates an Implied Cause ofAction against Mandated Reporters Who
Fail To Report
To determine if a statute creates an implied cause of action, we employ a three-
part test. Bennett, 113 Wash. 2d 912. We ask, "[F]irst, whether the plaintiff is within the
class for whose 'especial' benefit the statute was enacted; second, whether legislative
intent, explicitly or implicitly, supports creating or denying a remedy; and third,
whether implying a remedy is consistent with the underlying purpose of the legislation."
Id. at 920-21 (quoting In reWash. Pub. Power Supply Sys Sec. Litig., 823 F.2d 1349,
1353 (9th Cir. 1987)).
We have previously applied this test to the abuse of children act (ACA), chapter
26.44 RCW, and our analysis in that context guides our analysis here. In Beggs, this
court held that the mandatory reporting portion of the ACA, RCW 26.44.030, implies
a cause of action against mandatory reporters who fail to report suspected child abuse.
171 Wash. 2d 69. First, the court found "victims of child abuse are certainly within the
class for whose 'special' benefit the legislature enacted the reporting statute." I d. at 77.
Second, the court found "the statute implicitly supports a civil remedy." Id. at 78. The
ACA provides immunity from civil liability for those who cooperated in good faith with
an investigation arising from a report made under the ACA. Id.; RCW 26.44.060(5).
The court reasoned, "'A grant of immunity from liability clearly implies that civil
liability can exist in the first place."' Beggs, 171 Wash. 2d at 78 (quoting Jane Doe v.
Corp. ofPresident of Church ofJesus Christ ofLatter-Day Saints, 141 Wash. App. 407,
422-23, 167 P.3d 1193 (2007)). Because the statute imposed a duty on certain
professionals to report suspected child abuse, we held "[t]he statutory scheme supports
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an implied cause of action for a failure to fulfill that duty." Id. Finally, the court
recognized "an implied cause of action is consistent with the underlying purpose of the
statute." Jd. Looking to the statute's declaration of purpose, we found the purpose
of the statute was to ensure that protective services were available to prevent further
abuses and safeguard abused children's general welfare. Id. Furthermore,
legislative history stated, '"Governmental authorities must give the prevention,
treatment, and punishment of child abuse the highest priority, and all instances of
child abuse must be reported to the proper authorities.'" !d. (quoting LAWS OF 1985,
ch. 259, § 1).
Subsequent legislative action implicitly approved of this court's holding that
the ACA creates an implied cause of action against mandated reporters who fail to
report child abuse. The ACA has been amended multiple times post-Beggs.
Although some of these amendments have limited governmental entities' liability,
see, e.g., LAWS OF 2012, ch. 259, § 14, codified at RCW 26.44.280, none of these
changes have implicated the implied cause of action this court found in Beggs.
The AV AA is similar to the ACA, and thus Beggs is persuasive. Indeed, prior
to 1999, some of the AVAA's protections were incorporated in the ACA. See, e.g.,
former RCW 26.44.010-.020 (1969) (incorporating the protection of mentally
disabled adults into the statute); former RCW 26.44.010 (1977) (incorporating the
protection of adult developmentally disabled persons into the declaration of
purpose). Even after the AVAA was enacted, the ACA continued to provide
protection for vulnerable adults. See, e.g., LAWS OF 1984, ch. 97, §§ 1, 2 (the same
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year that the AV AA was enacted, see id. §§ 7-15, 17-18, the legislature amended the
ACA, changing "adult developmentally disabled persons" to "adult dependent
persons" but maintaining protection for such individuals under chapter 26.44 RCW).
It was not until 1999 that the legislature removed all reference to adults from the
ACA. See LAWS OF 1999, ch. 176, §§ 27-33; see also FINAL B. REP. ON SUBSTITUTE
H.B. 1620, 56th Leg., Reg. Sess. (Wash. 1999) (explaining that this bill consolidated
and made uniform the three statutes that required the reporting and investigation of
abuse of vulnerable adults).
Furthermore, the A V AA is similar to the ACA in both structure and purpose.
First, vulnerable adults who are the victims of abuse or neglect are within the class
of people for whose "special" benefit the legislature enacted the reporting statute.
When the legislature consolidated provisions protecting vulnerable adults into
chapter 74.34 RCW, it declared, "The purpose of chapter 74.34 RCW is to provide
the department [of social and health services] and law enforcement agencies with
the authority to investigate complaints of abandonment, abuse, financial
exploitation, or neglect of vulnerable adults and to provide protective services and
legal remedies to protect these vulnerable adults." LAWS OF 1999, ch. 176, § 1.
Second, legislative intent supports creating a private cause of action against
mandated reporters who fail to report. Like the ACA, the A V AA provides immunity
for those who in good faith make a report or testify about alleged abuse or neglect
under the chapter. See RCW 74.34.050. As this court observed in Beggs, the
provision of immunity from liability implies the possibility of civil liability. See
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Beggs, 171 Wash. 2d at 78. Furthermore, the legislature clearly anticipated the
possibility of liability for failing to report. In the same provision that grants
immunity for those who report in good faith, the legislature limited liability for
permissive reporters, providing, "The making of permissive reports as allowed in
this chapter does not create any duty to report and no civil liability shall attach for
any failure to make a permissive report as allowed under this chapter." RCW
74.34.050(1) (emphasis added). By specifying that permissive reporters are not
liable for failing to report, but remaining silent as to mandated reporters, the
legislature implicitly recognized the existence of a cause of action against mandated
reporters who fail to report. 5
5
The legislative history of RCW 74.34.050(1) supports this conclusion. The
original AVAA addressed reporting by mandated reporters. See former ch. 74.34 RCW
(1984). Two years after its enactment, the legislature expanded the list of mandated
reporters and added permissive reporting. LAws OF 1986, ch. 187, § I. The legislature
also amended the civil liability provision to provide immunity from suit for permissive
reporters who failed to report. !d. § 3(1) ("The maldng of permissive reports ... does not
create any duty to report and no civil liability shall attach for any failure to make a
permissive report . . . ."). Given that the legislature was clearly contemplating both
mandated and permissive reporters, we consider its silence with regard to civil liability
against mandated reporters a deliberate decision to leave the door open for an action against
mandated reporters who fail to report. Similarly, in 1999, the legislature again
contemplated both mandated reporters and a limitation on liability against permissive
reporters. In the original House Bill 1620, the legislature completely struck permissive
reporter's protection from civil liability for failure to report. H.B. 1620, at 6-7, 56th Leg.,
Reg. Sess. (Wash. 1999). However, in Substitute House Bill1620, the bill that ultimately
became law, the legislature retained the protections for permissive reporters but did not
extend such protections to mandated reporters who fail to report. See LAWS OF 1999, ch.
176, § 6. At the time, the legislature was clearly contemplating the roles of both mandated
and permissive reporters in the AVAA. It added new definitions for mandated and
permissive reporters, repealed the AVAA's old reporting provision, and added new
reporting requirements for both mandated and permissive reporters. See id. §§ 3 (adding
definitions), 35 (repealing the AVAA's original reporting provision, RCW 74.34.030), 5
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Finally, recognizing an implied cause of action is consistent with the purpose
of the statute. The purpose of the AV AA is to give DSHS and law enforcement
authority to investigate alleged abuse and neglect of vulnerable adults, and to
provide those adults with protective services and legal remedies. LAWS OF 1999,
ch. 176, § 1. Implying a cause of action for failing to report suspected abuse or
neglect is consistent with the legislature's intent to ensure that DSHS and law
enforcement investigate cases of suspected abuse, and are able to provide protective
services to abused vulnerable adults.
One notable difference between the ACA and the AVAA is that "[i]n addition
to other remedies available under the law," the AVAA explicitly includes a cause of
action for vulnerable adults who have suffered abuse or neglect either while residing
in a facility, or, for those residing at home, "who receive[] care from a home health,
hospice, or home care agency, or an individual provider." RCW 74.34.200(1). The
ACA does not explicitly create any similar cause of action.
This AVAA provision does not preclude also finding an implied cause of
action against mandated reporters for failure to report. The express liability
provision provides redress for actual abuse; it does not provide redress for those
who breach their mandatory reporting duty. "Courts have consistently held that
when a statute gives a new right and no specific remedy, the common law will
(creating the new reporting requirements for mandated and permissive reporters). Again,
the legislature's silence with regard to civil causes of action against mandated reporters
implies legislative acquiescence to a civil action against mandated reporters who fail to
report abuse.
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provide a remedy." State ex rel. Phillips v. Wash. State Liquor Control Bd., 59
Wash. 2d 565, 570, 369 P.2d 844 (1962). The AVAA creates a right to have suspected
abuse reported without providing a remedy for a violation of that right. Implying a
cause of action for a mandated reporter's failure to report suspected abuse or neglect
is thus appropriate. 6
II Summary Judgment Was Improper as to the AVAA Claims
A court may grant summary judgment when, on the basis of the facts before it, a
reasonable fact finder could reach only one conclusion. See SentinelC3, Inc. v. Hunt,
181 Wash. 2d 127, 140, 331 P.3d 40 (2014). This court reviews orders for summary
judgment de novo. Folsom v. Burger King, 135 Wn.2d 658,663,958 P.2d 301 (1998).
An appellate court considers all ofthe evidence presented to the trial court and "engages
in the same inquiry as the trial court." Id. Summary judgment is appropriate only
"when the pleadings, affidavits, depositions, and admissions on file demonstrate there
is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law." I d. The moving party bears the burden of demonstrating there is no
issue of material fact, and all facts and reasonable inferences therefrom must be viewed
6 Nor is it significant that the AV AA provides a mandated reporter "who lmowingly
fails" to report is guilty of a gross misdemeanor. RCW 74.34.053(1). The same criminal
penalty is present in the ACA for failing to report. See RCW 26.44.080. Furthermore, the
imposition of criminal penalties does not preclude finding an implied cause of action. See
Wingert v. Yellow Freight Sys., Inc., 146 Wash. 2d 841, 850, 50 P .3d 256 (2002) (noting "our
courts have implied a private right of action against an employer who violates RCW
49.48.010 (unlawful to withhold or divert an employee's wages) even though violation of
the statute also constitutes a misdemeanor").
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in the light most favorable to the nonmoving party. See Sentine!C3, 181 Wash. 2d at 140;
Folsom, 135 Wash. 2d at 663.
In this case, there are genuine disputes of material fact that preclude granting
summary judgment. As employees of Alpha, Thomas and Binondo are mandated
reporters under the AVAA. See RCW 74.34.020(13) (defining "mandated reporter" to
include "an employee of a ... home health ... agency"); CP at 447. Although the
parties agree on this point, 7 the defendants argue that Binondo had no duty under the
A V AA to report suspected abuse because she did not observe signs of abuse. Suppl.
Br. of Resp't/Cross-Pet'r at 14-15. They further argue that Thomas had no duty to
report to law enforcement, and that reporting to DSHS fulfilled her requirements under
the AV AA. Id. The defendants also contend that Kim failed to present any admissible
evidence to show Binondo or Thomas had reason to believe abuse was occurring. Id.
at 15. 8
Under the A VAA, mandated reporters have a duty to report suspected abuse or
neglect to DSHS and, in appropriate circumstances, directly to law enforcement. The
statute provides:
(1) When there is reasonable cause to believe that abandonment, abuse,
financial exploitation, or neglect of a vulnerable adult has occurred,
7
Although originally Alpha and Thomas argued that neither Thomas nor Binondo
had a duty to report suspected abuse of Bae because Bae was not their patient, CP at 901-
03, they no longer advance this argument. See Suppl. Br. ofResp't/Cross-Pet'r at 14-15.
8 We need not address the issue of harm. It is undisputed that Bae died because of
acute morphine intoxication. We also need not address causation, which was raised in
Alpha and Thomas's motion for summary judgment but was not addressed in the Court of
Appeals opinion and is not asserted by Alpha and Thomas as a basis to affirm the summary
judgment order.
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mandated reporters shall immediately report to the department [of social and
health services].
(3) When there is reason to suspect that physical assault has occurred
or there is reasonable cause to believe that an act has caused fear of imminent
harm:
(a) Mandated reporters shall immediately report to the department;
and
(b) Mandated reporters shall immediately report to the appropriate
law enforcement agency, except as provided in subsection (4) of this
section. [9l
RCW 74.34.035 (emphasis added). Whether an individual has a duty in the first
instance is a question of law. Folsom, 135 Wash. 2d at 671. As discussed above, the
statute creates an implied cause of action, and its plain language requires mandated
reporters to report suspected abuse to either DSHS, or DSHS and law enforcement.
The Court of Appeals did not directly address the duty question, instead holding
Thomas and Binondo acted reasonably. Kim, 186 Wash. App. at 409-15,415 n.lO. Kim
is correct that whether an individual has "reasonable cause" or "reason to suspect"
abuse goes to the question of breach, not duty. The Court of Appeals appears to
have conflated these issues. See Kim, 186 Wash. App. at 409-15. Alpha and Thomas
adopt this faulty reasoning, arguing that Binondo had no duty to report to DSHS and
Thomas had no duty to report to law enforcement because they acted reasonably,
consistent with the statute. Suppl. Br. ofResp't/Cross-Pet'r at 14-15.
We agree with Kim that the court must separate the questions, first identifying
the duty the statute unequivocally places on mandated reporters, and then
9
Subsection (4) addresses the reporting of incidents of physical assault between
vulnerable adults. RCW 74.34.035(4).
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considering if genuine issues of material fact exist as to whether the reports of abuse
Binondo and Thomas received were credible, and whether they acted appropriately.
We have already identified the relevant legal duty under the AV AA. The
issue ofbreach is quintessentially a question for the trier of fact; it cannot be resolved
on summary judgment unless the material facts are undisputed and reasonable minds
could not disagree on the question. See Hertog v. City of Seattle, 138 Wash. 2d 265,
275, 979 P.2d 400 (1999). In this case, there are genuine issues of material fact as
to whether (1) Binondo had "reasonable cause to believe" that abuse was occurring
and (2) Thomas had "reason to suspect that physical assault had occurred" such that
she should have reported directly to law enforcement and DSHS.
The terms "reasonable cause to believe" and "reason to suspect" have not been
defined in the AVAA, and there appears to be no case law interpreting them. 10 In
similar contexts, however, whether an individual has "reasonable cause to believe"
or "reason to suspect" are questions for the jury. Cf State v. Baker, 30 Wash. 2d 601,
606-07, 192 P .2d 839 (1948) ("The question whether the resistance of the
complaining witness was prevented by fear of immediate and great bodily harm
which she had reasonable cause to believe would be inflicted upon her, was a
question of fact to be determined by the jury.").
The A V AA defined "abuse" as "the willful action or inaction that inflicts
injury, unreasonable confinement, intimidation, or punishment on a vulnerable
10 The ACA, which as noted above is similar to the AVAA, defines "reasonable
cause" as "a person witnesses or receives a credible written or oral report alleging abuse,
including ... neglect of a child." RCW 26.44.030(1 )(b)(iii).
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adult. ... Abuse includes ... physical abuse." Former RCW 74.34.020(2) (2008).
"Physical abuse" is "the willful action of inflicting bodily injury or physical
mistreatment. Physical abuse includes, but is not limited to, ... the use of chemical
restraints." Former RCW 74.34.020(2)(b) (2008). Giving a patient morphine
without a prescription would qualify as physical abuse by use of a chemical restraint.
In addition, it may qualify as assault under chapter 9A.36 RCW, which defines
"assault" to include the administration of a "destructive or noxious substance."
RCW 9A.36.0ll(l)(b), 9A.36.021(1)(d).
Alpha and Thomas argue there is no admissible evidence to support a finding
that Binondo had reasonable cause to believe Bae was being abused. Suppl. Br. of
Resp't/Cross-Pet'r at 15. This argument overlooks the following evidence creating
a genuine dispute of material fact: in her call to DSHS, Binondo told DSHS that she
noted Bae "had passed out" after the fall. CP at 309-10. 11 Binondo witnessed Irawati
pick Bae up after the fall (something Binondo cautioned Irawati against), drag her
into bed, and then not examine Bae. I d. Binondo also told DSHS that Salzbrun told
her "she thought [Bae] looked doped as she saw [Irawati] crush pills .... I know
what they look like because I take them also." Id. at 310. Binondo also indicated
that not only did she think Salzbrun was reliable, but that Salzbrun had told her the
same thing multiple times. Id. (when asked if Salzbrun was reliable, Binondo
11
Despite Alpha and Thomas's arguments, see CP at 71-72, the notes from DSHS
on Thomas's and Binondo' s calls may be admissible under the Uniform Business Records
as Evidence Act, chapter 5.45 RCW. See RCW 5.45.020. The record contains the DSHS
custodian's verification. CP at 314.
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responded, "I think so. . .. Now I think she is pretty reliable. She keeps telling me
the same thing over and over. I think she is pretty reliable about it."). Looking at
this evidence, a jury could conclude that on the day she heard Bae fall, Binondo had
"reasonable cause to believe" Bae was being abused, thus triggering Binondo' s duty
as a mandated reporter to immediately report the suspected abuse to DSHS. See
RCW 74.34.035(1).
There is additional evidence that could support a jury's conclusion that
Binondo had reasonable cause to believe Bae was being abused or neglected on the
day of the fall. Salzbrun also stated that she told Binondo Bae was "doped up"
shortly before Binondo left on the day of the fall. CP at 124. In addition, in her
deposition, Binondo stated she "[p]robably" remembered Bae losing consciousness
after the fall, id. at 332, and despite knowing the dangers of head strikes after a fall,
see id. at 331, Binondo did not insist Bae' s caregiver call 911 nor call 911 herself.
Id. at 329. All of this evidence raises questions of material fact that preclude
summary judgment.
Alpha and Thomas also argue that there is no admissible evidence to support
a finding that Thomas had "reason to suspect" that Bae was being abused such that
it would require an immediate call to law enforcement in addition to DSHS. The
Court of Appeals agreed and held that because Thomas did not actually see Bae
being given morphine and because she doubted Salzbrun's credibility, there was
insufficient evidence of physical assault to require Thomas to call law enforcement
in addition to DSHS. See I 186 Wash. App. at 413-15.
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The Court of Appeals erred in making a credibility determination.
"[C]redibility determinations are solely for the trier of fact." Morse v. Antonellis,
149 Wash. 2d 572, 574, 70 P.3d 125 (2003). There is sufficient admissible evidence
to raise a question of material fact as to whether Thomas had "reason to suspect"
that Bae was being abused, such that she was required to report directly to law
enforcement. The day ofBae's death, Thomas reported to DSHS that Salzbrun told
her she had seen morphine next to Bae's bed, and that Bae had been sedated to the
point where she was unable to eat. Thomas told DSHS that Bae did not have an
order for morphine and that Thomas had observed Bae, the patient Salzbrun told her
was being overmedicated, appearing lethargic and being dragged to the bathroom.
Thomas later told DSHS that Salzbrun would recognize morphine, and that although
she was not 100 percent sure if Salzbrun was reliable, "something seemed fishy.
[Salzbrun] would know what she saw." Id. at 307. Based on her reports to DSHS,
a jury could easily conclude that Thomas had "reason to suspect" Bae suffered a
physical assault, thus triggering Thomas's duty to immediately call law enforcement
and DSHS. See RCW 74.34.035(3).
Thomas reiterated much of this information in both her declaration and
deposition testimony. Thomas stated that one of her patients told her Bae was being
given morphine. CP at 767. Salzbrun also testified she told Thomas Bae "had been
given someone else's morphine and was doped up." Id. at 124. While at Lakeside,
Thomas observed "[lrawati] dragging a small Korean woman to the bathroom.
[Thomas] did not see the Korean woman moving her feet. She appeared to [Thomas]
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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9
to be heavily sedated." !d. at 767. Thomas was "a little alarmed" at the situation.
!d. at 173. Thomas agreed that on March 30,2009, when she left Lakeside, she was
leaving Bae "in the hands of the woman who [she was] told was giving her
morphine." !d. at 182. This testimony raises sufficient questions of material fact to
defeat summary judgment.
Kim also raises a genuine question of material fact as to whether either
Binondo or Thomas "immediately" reported to DSHS or law enforcement. !d. at
149-51. Whether an individual acts "immediately" is a question for the jury. See
State v. Sherman, 98 Wash. 2d 53, 57, 653 P.2d 612 (1982) (holding that in the context
of the felony flight statute, '"immediately' means stopping as soon as reasonably
possible once signaled by a police officer to halt," and that given the facts of the
case, "the trier of fact could well have found he did not meet the requirements of
'immediately'").
In this case, it is undisputed that Binondo did not call DSHS until after Bae' s
death, and that neither she nor Thomas ever called law enforcement. Nothing
prevented Thomas from calling law enforcement. CP at 182. Thomas called DSHS
at approximately 10:00 a.m., five minutes after leaving Lakeside. She got a busy
signal and called back approximately an hour and a halflater, at 11 :30 a.m. Whether
this constitutes calling "immediately" is a question for the jury.
Kim has presented sufficient evidence to defeat summary judgment. There
are existing questions of material fact as to whether Binondo and Thomas reasonably
believed or suspected that abuse was occurring, such that they had to report to either
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Kim, eta!. v. Lakeside Adult Family Home, eta!., 91536-9
DSHS or to DSHS and law enforcement, and whether Thomas reported to DSHS
immediately. Summary judgment was improper.
III Service of Process on a Defendant in Norway Must Comply with the Hague
Convention. Personal Service by an Independent Process Server Does Not
Comply with the Convention as Service Must Be Effectuated through Norway's
Designated Central Authority
Service of process on a defendant in Norway falls under the purview of the
Hague Convention. Thomas and Kim appear to agree on this point. Thomas was
personally served with process at her home in Nannestad, Norway. CP at 793-97. This
service was not effectuated through the Norwegian government. Id. at 744-45. Thomas
argues this personal service was improper because it was not completed in accordance
with the Hague Convention. See, e.g., id. 803-04; Br. ofResp'ts/Cross-Appellants at
32-33; Suppl. Br. of Resp'ts/Cross-Pet'r at 4-7. Thomas also argues that serving
documents written only in English violates Norway's translation requirements. See,
e.g., Suppl. Br. ofResp'ts/Cross-Pet'r at 9-10. In the courts below, Kim asserted that
personal service was proper under Hague Convention articles 5 and 19, and under
Norwegian law. See, e.g., Reply/Cross-Resp. Br. of Appellants at 18-19. Kim now
argues "the Hague Convention issue is moot because Kim also served Thomas through
the Norwegian Central Authority." Suppl. Br. ofPet'r at 12.
The Court of Appeals held, "Because Norway has not objected to personal
service and, in fact, such service complied with its laws, there is no reason to invalidate
service in this case." Kim, 186 Wash. App. at 406. The Court of Appeals, like Kim, relied
on articles 5(a) and 19 of the Hague Convention, and on Norwegian law. Id. at 405-06.
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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9
The court also noted that personal service was proper under Washington's rules of civil
procedure, specifically CR 4(i)(l). Id. at 407.
"This court reviews de novo if service of process was proper." Scanlan v.
Townsend, 181 Wash. 2d 838, 847, 336 P.3d 1155 (2014). Although Kim asserts that this
issue is moot, the record before us indicates service is still pending in Norway. See CP
at 558. Moreover, this court may review a moot issue if it is one "of continuing and
substantial public interest." In reMarriage ofHorner, 151 Wash. 2d 884, 891, 93 P.3d
124 (2004). Ensuring proper service of process is such an issue. This case addresses
matters that are public in nature and for which an authoritative determination is
desirable. Furthermore, this is at least the second case this court has seen addressing
service under the Hague Convention. See Broad v. Mannesmann Anlagenbau, A G, 141
Wash. 2d 670, 10 P.3d 371 (2000) (addressing tolling of the statute of limitations for
international service of process in accordance with the Hague Convention). This
indicates that issues of international service of process are likely to recur. We therefore
choose to address this issue and provide guidance, regardless of mootness.
The Hague Convention is a multilateral treaty "intended to provide a simpler
way to serve process abroad, to assure that defendants sued in foreign jurisdictions
would receive actual and timely notice of suit, and to facilitate proof of service abroad."
VolkswagenwerkAktiengesellschaftv. Schlunk, 486 U.S. 694,698, 108 S. Ct. 2104, 100
L. Ed. 2d 722 (1988). It applies in all civil cases "where there is occasion to transmit a
judicial or extrajudicial document for service abroad" where the address of the person
to be served is known. Hague Convention, 20 U.S.T. at 362; see also Broad, 141 Wn.2d
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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9
at 675. "[C]ompliance with the Convention is mandatory in all cases to which it
applies," and the provisions of the Hague Convention preempt inconsistent methods of
service prescribed by state law. Schlunk, 486 U.S. at 705; see Broad, 141 Wash. 2d at
674-75.
The Hague Convention requires each state to designate a central authority, which
receives requests for service, and either serves the documents itself or arranges service.
Hague Convention, 20 U.S.T. at 362-63. The Hague Convention also establishes
alternative methods of service. See id. at 363. 12 Where a state objects to these
alternative methods, plaintiffs must use the designated central authority to execute
service. See Broad, 141 Wash. 2d at 674 ("Germany has objected [to the alternative
methods of service in articles 8 and 10], and requires that plaintiffs who sue defendants
in Germany must request that the designated central authority execute service of
process.").
Both the United States and Norway are signatories to the Hague Convention. See
Status Table, Hague Conference on Private Int'l Law (last visited Apr. 26, 2016),
http://www .hcch.netlindex_en.php?act=conventions.status&cid= 17. Norway has
objected to the alternative methods of service, and thus service on defendants in Norway
must be through the Royal Ministry of Justice and Public Security, Department of Civil
12
Articles 8 and 9 allow service through diplomatic or consular agents or channels.
Article 10 allows service through postal channels, by ''judicial officers, officials or other
competent persons of the State of origin ... directly through the judicial officers, officials or
other competent persons of the State of destination," and by "any person interested in a judicial
proceeding ... directly through the judicial officers, officials or other competent persons of
the State of destination." Hague Convention, 20 U.S.T. at 362. States may object to the
methods in articles 8 and 10.
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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9
Affairs, the designated central authority. See id.; Details, Hague Conference on Private
Int'l Law (last visited Apr. 26, 2016), http://www.hcch.net/en/states/authorities/
details3/&aid=246; cf Broad, 141 Wash. 2d at 674.
Kim and the Court of Appeals erroneously relied on articles 5 and 19 of the
Hague Convention to establish personal service was proper. "When interpreting a
treaty, we 'begin with the text of the treaty and the context in which the written words
are used."' Schlunk, 486 U.S. at 699-700 (internal quotation marks omitted) (quoting
Societe Nationale Industrielle Aerospatiale v. US. Dist. Court, 482 U.S. 522, 534, 107
S. Ct. 2542, 96 L. Ed. 2d 461 (1987)). Article 5 of the Hague Convention provides in
relevant part:
The Central Authority of the State addressed shall itself serve the
document or shall arrange to have it served by an appropriate agency, either
(a) by a method prescribed by its internal law for the service of
documents in domestic actions upon persons who are within its territory, or
(b) by a particular method requested by the applicant, unless such a
method is incompatible with the law of the State addressed.
Subject to sub-paragraph (b) of the first paragraph of this Article, the
document may always be served by delivery to an addressee who accepts it
voluntarily.
If the document is to be served under the first paragraph above, the
Central Authority may require the document to be written in, or translated
into, the official language or one of the official languages of the State
addressed.
Hague Convention, 20 U.S.T. at 362.
This article's structure is clear: the options for service in subsections (a) and
(b) are available only if the central authority either serves the documents itself or
arranges for their service. See Schlunk, 486 U.S. at 699 ("Once a central authority
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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9
receives a request in the proper form, it must serve the documents by a method
prescribed by the internal law of the receiving state or by a method designated by
the requester and compatible with that law." (emphasis added)). The same is true
for direct, voluntarily accepted service, which is permissible only if service has been
accomplished through the central authority. Paragraph two does not create a
separate method of service outside of the central authority. 13
Similarly, the Hague Convention does not convert a country's domestic laws
on service of process into laws governing service of process of documents coming
from abroad. Article 19 states, "To the extent that the internal law of a contracting
State permits methods of transmission, other than those provided for in the preceding
articles, of documents coming from abroad, for service within its territory, the
present Convention shall not affect such provisions." Hague Convention, 20 U.S.T.
at 365 (emphasis added). This provision refers only to a country's laws that
specifically deal with service of process of documents coming from abroad. It does
not pertain to the general service of process laws that apply to wholly domestic
actions. See Shenouda v. Mehanna, 203 F.R.D. 166, 171 (D.N.J. 2001) ("Article 19
provides that the internal law of a signatory with respect to service from abroad
within its territory is not affected by the Convention."). There are apparently no
13
The Hague Convention "provides for one main channel of transmission and
several alternative channels of transmission." HAGUE CONF. ON PRIVATE INT'L LAW,
HAGUE CONVENTION OF 15 NOVEMBER 1965 ON THE SERVICE ABROAD OF JUDICIAL AND
EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS 1, charts 1-2 (2009),
https://assets.hcch.net/upload/outline14e.pdg. The main channel-service by the central
authority-is outlined in article 5. The additional channels, as explained above, are found
in articles 8, 9, and 10. Id.
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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9
Norwegian laws that govern service of process of documents from abroad; thus,
service of such documents must conform with the methods outlined (and not
objected to) in the Hague Convention. Because Norway has objected to alternative
methods of service, service must be accomplished by or through the Royal Ministry.
Kim's attempt to serve Thomas by direct personal service was improper
because it did not comply with the Hague Convention. However, because Kim is
also serving Thomas through the Royal Ministry, see CP at 558,631-33, service will
be proper once the Royal Ministry completes it. As addressed below, the statute of
limitations has tolled. Contrary to Thomas's argument, the fact that the documents
were written only in English is of no consequence. Although Norway generally
requires documents to be written in Norwegian, Danish, or Swedish, "the Ministry
of Justice may ... permit the service of [untranslated] documents if it is convinced
that the addressee understands the language used in the document." Details, supra.
In this case, the documents did not need to be translated from English. Matora Yoga,
executive officer of the Royal Ministry, informed Kim that "[d]ue to that the
addressee understands the language, it is sufficient to enclose the English language
document." CP at 633. 14 Thus, the documents may be served in English.
14
Yoga appeared to believe that Thomas was an American citizen whose primary
language is English. CP at 633. Thomas is not, in fact, an American citizen. Jd. at 169.
However, there is ample evidence that she speaks English fluently: she lived and worked
in the United States for over 25 years, completed high school in the United States, obtained
an associate degree in nursing in the United States, and passed her boards to become a
registered nurse in the United States. Jd. at 168-69.
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We reverse the Court of Appeals' decision insofar as it held that personal
service without going through the central authority is proper in Norway. However,
we affirm the Court of Appeals' conclusion that service on Thomas will be proper
once the central authority completes it.
IV. The Statute ofLimitations Was Tolled as to Thomas
Independent of the insufficient service issue, Thomas argues she was not timely
served. See Br. ofResp'ts/Cross-Appellants at 34; Suppl. Br. ofResp't/Cross-Pet'r at
12-13. Thomas admits that under Sidis v. Brodie/Dohrmann, Inc., 117 Wash. 2d 325, 815
P.2d 781 (1991), proper and timely service on one defendant tolls the statute of
limitations as to any other defendant. Suppl. Br. of Resp't/Cross-Pet'r at 11-13.
However, Thomas argues that the circumstances presented in this case go beyond the
permitted tolling because Kim was not sufficiently diligent in attempting service on
Thomas. See id. Kim argues that she has timely proceeded with her case; that there is
no due diligence requirement under Sidis; and that even if there was, she has met it, and
any delay in service was due to Thomas fleeing toNorway and her attorney's deception
as to Thomas's whereabouts. Suppl. Br. ofPet'r at 14-16.
In Sidis, this court held that under RCW 4.16.170 (the tolling statute), 15 timely
service of one defendant tolls the statute of limitations for serving other defendants in
15
RCW 4.16.170 states in relevant part:
For the purpose of tolling any statute of limitations an action shall be deemed
commenced when the complaint is filed or summons is served whichever
occurs first. If service has not been had on the defendant prior to the filing
ofthe complaint, the plaintiff shall cause one or more of the defendants to be
served personally, or commence service by publication within ninety days
from the date of filing the complaint. . . . If . . . following filing, service is
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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9
multi defendant actions. 117 Wash. 2d 325. The court was careful to note that although
the statute literally "tolls the statute of limitation for an unspecified period, that period
is not infinite." Id. at 329. "Plaintiffs must proceed with their cases in a timely manner
as required by court rules, and must serve each defendant in order to proceed with the
action against that defendant." !d. The court reasoned, "It is arguably unfair to require
a plaintiff to serve all defendants within a set limitation period, when it may be difficult
or impossible to determine the actual location of some defendants before discovery is
underway." !d. at 330.
In Bosteder v. City ofRenton, this court held that serving a defendant 8 months
after filing the complaint (and 11 months after serving a codefendant) did not violate
Sidis because other defendants were timely and properly served, and because the late-
served defendant "failed to demonstrate how she was prejudiced by any delay in
service, or how a court rule was violated." 155 Wash. 2d 18, 49, 117 P.3d 316 (2005). In
that case, the plaintiff did not provide any rationale for his delay. !d. However, while
noting that "there is little guidance for determining whether the eight-month delay was
excessive," the court considered various facts in the record and found evidence of what
could have led to the delayed service. !d.
This court most recently examined Sidis's contours in Powers v. WB. Mobile
Services, Inc., 182 Wash. 2d 159, 339 P.3d 173 (2014). In that case, Powers filed a
personal injury suit in 2009 naming (among other parties) John Doe One as the "'builder
not so made, the action shall be deemed to not have been commenced for
purposes of tolling the statute of limitations.
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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9
of the handicap access ramp where the incident occurred.'" !d. at 162. Powers timely
served the two named defendants but did not serve John Doe One. !d. Over a year and
a half after serving the named defendants, Powers moved to amend his pleading to
replace John Doe One with W.B. Mobile. Id. at 163. W.B. Mobile moved to dismiss
"for failure to bring claims within the statute oflimitations." Id. This court was asked
"whether service of process on one defendant tolls the statute of limitations as to an
unserved and unnamed defendant that the plaintiff identified with a placeholder such as
'John Doe."' Jd. at 161.
Relying on Sidis, the court held, "[S]ervice of process on one defendant tolls the
statute oflimitations as to an unserved and unnamed defendant if the plaintiff identifies
the unnamed defendant with reasonable particularity." I d. "In Sidis, this court observed
'that in some cases, if identified with reasonable particularity, "John Doe" defendants
may be appropriately "named" for purposes ofRCW 4.16.170."' Id. at 164 (quoting
Sidis, 117 Wash. 2d at 331 ). The court explained a defendant is identified with reasonable
particularly if the plaintiff can establish,
from the commencement of the statute of limitations, the plaintiff made a
diligent effort to identify the actual defendant given the information reasonably
available ... and ... the plaintiff provided information about the unnamed
defendant in the complaint to the greatest extent possible ... and ... the
defendant had or should have received such notice of the action that it will not
be prejudiced in maintaining a defense on the merits ....
!d. at 164-65 (emphasis added). The court analyzed the specific facts of the case and
determined that Powers reasonably identified the defendant because he made a diligent
effort to identify and name W.B. Mobile. Id. at 166. Furthermore, W.B. Mobile was
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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9
unable to show prejudice because its owner and sole employee received a copy of the
complaint-actual notice-within 90 days after service. I d. at 167.
Relying on Powers and RCW 4.16.170, the Court of Appeals held that timely
service on Alpha, the codefendant, tolled the statute of limitations for Thomas. Kim,
186 Wash. App. at 405. We agree and find that Kim acted diligently to serve Thomas.
To review the relevant facts: after living in the United States for over 25 years, Thomas
moved back to Norway in August 2010. CP at 168-69. Kim amended her complaint
on March 20, 2012, naming Thomas and Alpha as defendants. !d. at 933. Alpha was
served with the first amended complaint on March 26, 2012. See id. at 799. The parties
do not dispute that Alpha was timely and properly served. The three-year statute of
limitations ran on March 30, 2012. Defense counsel entered a notice of appearance on
behalf of both Alpha and Thomas on April4, 2012. !d. at 1281-82. On April20, 2012,
Alpha and Thomas filed an answer to the amended complaint. !d. at 909-14. In their
answer, Alpha and Thomas asserted that Thomas had not been served, however, they
did not indicate that Thomas was living in Norway. !d. at 913. On September 25,2012,
Kim sent Alpha her first set of interrogatories and requests for production, seeking
among other things contact information for all former and current Alpha employees
who treated Alpha patients at Lakeside. !d. at 487-502 (with answers). On October 25,
2012, Alpha provided Thomas's address as "c/o Cozen O'Connor," with the law firm's
street address. !d. at 490, 502. On November 26, 2012, Alpha's attorneys sent an e-
mail response to Kim's counsel regarding a notice of deposition, indicated that Thomas
lived in Norway (without providing an address), and blind-copied Thomas. !d. at 1184-
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Kim, eta!. v. Lakeside Adult Family Home, eta!., 91536-9
86. On December 3, 2012, Kim's attorney demanded Thomas's address and noted that
it was clear from the blind copy that Alpha could easily obtain Thomas's address. Id.
at 609. On December 11, 2012, Alpha provided Thomas's address in Norway in its
first supplemental response to Kim's first set of interrogatories. Id. at 1192, 1195.
On March 21, 2013, almost a year after Alpha was served, Thomas accepted
personal service ofprocess. I d. at 1203-04. That same day, Curtis Williams (a paralegal
from Graham Lundberg Peschel PS, Kim's attorneys) e-mailed the Royal Ministry to
inquire about forwarding documents to the ministry for service under the Hague
Convention. See id. at 633. The Norwegian official, Matora Yoga, responded on March
26,2013, id. at 633, and onApril3, 2013, Williams sent an e-mail indicatingthatFedEx
International MailService had delivered the documents to the Royal Ministry that day.
Id. at 632. Yoga responded on April 9, 2013, indicating that they had not yet received
the documents but that as soon as they did, they would begin the appropriate process
for service. I d. at 631. Williams followed up with the Royal Ministry on June 3, 2013,
and Yoga responded on June 11, 2013, that the "case is still pending. We will forward
the answer to you as soon as we receive this." Id. at 558.
This record demonstrates that Kim acted diligently to learn Thomas's
whereabouts and to serve her. As this court noted in Bosteder and Sidis, in.
multidefendant litigation it may be difficult for the plaintiff to locate some defendants
before discovery. Bosteder, 155 Wash. 2d at 48; Sidis, 117 Wash. 2d at 330. Here, Kim was
not able to obtain Thomas's address until December 11, 2012, despite the fact that
Kim's attorneys had requested the address multiple times and Thomas's attorneys could
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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9
have easily discovered her address. A three-month delay between obtaining the address
and attempting service (both personal, which Kim thought was proper, and through the
Royal Ministry) is excusable given the delay in obtaining Thomas's address and the
necessity of arranging for service of process in Norway.
This conclusion is supported by the fact that in Broad, this court held "[b]ecause
the plaintifflacks control over the timing of service once the documents are transmitted
to a designated central authority," the 90-day period of RCW 4.16.170 is tolled once
the documents are transmitted to the central authority. 141 Wash. 2d at 683. Although
the Broad court specified that the documents had to be transmitted to the central
authority within the 90-day period, that case dealt with a single defendant. See id. at
673. Here, because tolling was proper under Sidis, there was no need for the defendants
to transmit the documents to the central authority within 90 days. Now that the
documents have been transmitted, the statute of limitations is tolled until the Royal
Ministry completes service.
In addition, Thomas has not shown prejudice. She argues that she was prejudiced
because the statute of limitations had run and she was therefore entitled to dismissal of
the claims against her. See Resp'ts/Cross-Appellants Reply Br. at 16. This argument
incorrectly presupposes the statute oflimitations was not tolled. Furthermore, Thomas
either constructively or actually had notice of the suit when her attorneys-who are also
Alpha's attorneys-received a copy of the complaint on March 26, 2012.
There is no doubt that "each defendant must still be served, and thus given actual
notice, before any action can be taken concerning it." Sidis, 117 Wash. 2d at 331. In this
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Kim, eta!. v. Lakeside Adult Family Home, eta!., 91536-9
case, service on Alpha was timely and properly completed, thus tolling the statute of
limitations as to Thomas. Once effectuated by the Royal Ministry, Thomas will have
been timely and properly served, and the action may proceed against her.
V. Neither Party Is Entitled to Attorney Fees at This Point
Thomas argues she is entitled to attorney fees and costs under RCW 4.28.185(5),
Washington's long arm statute. Br. of Resp'ts/Cross-Appellants at 36. Neither Kim
nor the Court of Appeals addressed Thomas's claim to attorney fees.
Washington's long arm statute provides in relevant part:
In the event the defendant is personally served outside the state on causes of
action enumerated in this section, and prevails in the action, there may be taxed
and allowed to the defendant as part of the costs of defending the action a
reasonable amount to be fixed by the court as attorneys' fees.
RCW 4.28.185(5). While Kim attempted service under RCW 4.28.185, see CP at 1246-
48, Thomas has not yet "prevailed in the action." Thomas is therefore not entitled to
attorney fees at this point. See generally Scott Fetzer Co. v. Weeks, 114 Wash. 2d 109,
786 P.2d 265 (1990) (discussing RCW 4.28.185(5)'s ''prevailing party'').
Separately, Kim argues that assuming she prevails at trial, she is entitled to an
award of attorney fees both at trial and on appeal pursuant to RCW 74.34.200. Br. of
Appellants at 31. Because Kim has not yet prevailed at trial, her claim to fees is also
premature.
CONCLUSION
We reverse in part the Court of Appeals' decision. The A VAA creates an
implied cause of action against mandated reporters who fail to report suspected abuse
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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9
or neglect. There are genuine issues of material fact that must be resolved by a trier of
fact, making summary judgment dismissal of these claims inappropriate.
We affirm the Court of Appeals insofar as it held that Kim's proper and timely
service on Alpha tolled the statute of limitations as to Thomas. While the Court of
Appeals was incorrect in holding that personal service was proper, Kim correctly
served Thomas through Norway's Royal Ministry in accordance with the Hague
Convention. The statute oflimitations was tolled at the time service was made.
Reversing in part and affirming in part, we remand this case to the trial court for
further proceedings.
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Kim, et al. v. Lakeside Adult Family Home, et al., 91536-9
WE CONCUR:
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-34-