Case of the Day: Kim v. Lakeside Adult Family Home
Posted on May 19, 2016
Ho Im Bae was an inpatient resident of the Lakeside Adult Family Home, a nursing home. She died of a morphine overdose, and her death was ruled a homicide. The personal representative of her estate, Esther Kim, sued several defendants, including a nurse, Christine Thomas. The claim against Thomas was that she was allegedly negligent for failing to report that Bae was being abused, as required under Washington’s mandated reporter law. Thomas, a Norwegian national living in Norway at the time of the lawsuit, moved to dismiss for insufficient service of process. The trial court ruled that the service was proper, but it dismissed the claim on the merits on summary judgment. …
The decision is short on details of Kim’s attempt to effect service. Kim hired a process server, who personally served the documents on Thomas at her residence. It’s unclear whether the process server was a private person or a person with some particular competence under Norwegian law. It’s also unclear what methods of service Norwegian law permits, although the court noted without explanation that the service was “considered due and proper service under the laws of Norway.” Norway is a party to the Hague Service Convention, and it has objected to service under Article 10.
Thomas appealed on the service issue, and the court of appeals affirmed—I opined in the prior post that this was a mistake. Now the case was on appeal to the Washington Supreme Court.
The court correctly held that the service was ineffective because Norway had objected to service under Article 10. The court went on, however, to suggest that since (apparently at the time of the appeal) Kim had taken steps to serve Thomas via the Norwegian central authority, and since the statute of limitations had been tolled, the service defect would be cured once service via the central authority was complete. I don’t understand this at all. There was no question about actual notice. So what’s the point of saying, “you failed to serve process before the case went to judgment, but you can cure the problem by serving process on appeal?” You might as well say that you don’t need to serve process at all as long as you could serve process, since in this case the service is not necessary in order to provide actual notice to Thomas. Surely the right answer in a case like this is to reverse the judgment, else what’s the point?