Legal Question in Personal Injury in California
Statute of limitations, motion to quash service or answer?
Auto accident occurred 4/2000, I did not have auto insurance at the time of the accident and was NOT at fault. I filed a small claims suit against the insured driver at fault and won. The other party's insurance filed suit against me to collect property damage paid out to their insured claiming I was negligent. I was not served correctly and did not know about the lawsuit until I received a default judgment stating my loss on 3/2001. The original complaint was filed 12/2000. I hired a lawyer to set aside the default judgment, which was voluntarily set-aside on 9/2002. Now the insurance company's lawyers once again served me with a summons on 5/20/2003. Once again service was defective. Summons was taped to the door of my parent's home, where I do not reside, and after 3.5 weeks, still no summons via mail. My question is, once the original default judgment was set aside, does the insurance co have to re-file their complaint, or does the complaint filed in 12/2000 still hold? Did the statute of limitations run out? Secondly, since the summons was not properly served, should I hire a lawyer to file a motion to quash service of the summons? Or should I just file an answer?
3 Answers from Attorneys
Re: Statute of limitations, motion to quash service or answer?
First, I am curious as to when they filed the second complaint. If it is after 3 years of the accident, then they are out of luck and the statute of limitations will resolve this matter.
Second, tell your lawyer to write them a letter addressing two primary issues: One, there is a prior judgment that resolved this dispute (I am assuming that the small claims court heard and resolved all issues arising out this accident including who was at fault, property damage, etc.) and attach a copy of the judgment. In legalese this is called res judicata. Two, tell them again that their service is defective and will be challenged in case they attempt to take your default again.
Lastly, if they do not drop the lawsuit against you, consider going against them for malicious prosecution and bad faith. I think you have the right facts to hit them with it.
Good luck.
P.S. By the way, let us know which "friendly" insurance company is this?
Re: Statute of limitations, motion to quash service or answer?
Id hit them every which way.
Joel Selik
www.SelikLaw.com
800-894-2889
Re: Statute of limitations, motion to quash service or answer?
The Statute of Limitations on Property Damage in California is three years. Thus, the statute "ran" in 4/2003. If the Summons and Complaint that was left on the door is dated prior to that time or alternatively, if the court hadn't already dismissed the original lawsuit, then they have tolled the statute and you need to file a responsive pleading. I would not dispute service since it costs you more to file a Motion to Quash and appear at the hearing at which time, you can be served anyway. I would just file a responsive pleading. Notice that I said responsive pleading and not an "answer." I would file a "demurrer" to the complaint, attach a copy of the small claims award to the demurrer and allege that the whole lawsuit has already been adjudicated in your favor (res judicata) and therefore, this lawsuit should fail on its face and be dismissed. Philip Sheldon
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