UNIS, J.
The decision of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.
UNIS, J.
The issue in this case is whether there was adequate service of summons on defendant under Rule 7 of the Oregon Rules of Civil Procedure (ORCP) before the running of the applicable statute of limitations. We hold that there was not adequate service of summons. We reverse the decision of the Court of Appeals, which held that service was adequate, and affirm the judgment of the trial court, which held that service was not adequate.
On March 3, 1988, two days before the applicable statute of limitations was to run, plaintiff filed a complaint based on negligence, seeking money damages from defendant and defendant's mother. Plaintiff, in his complaint, alleged that he suffered personal injuries on March 5, 1986, due to defendant's negligent operation of defendant's mother's vehicle. On the same date the complaint was filed (March 3, 1988), a process server served a copy of the summons and complaint on defendant's mother at her residence and also handed her a copy of the summons and complaint directed to defendant to appear and defend. Defendant, who was 17 years old at that time (March 3, 1988), had not lived at his mother's residence since August 1985, although he told the investigating officers at the scene of the accident that he lived at his mother's residence. On April 5, 1988, plaintiff's attorney sent a true copy of the summons and complaint by certified mail, return receipt requested, to defendant at the address of his mother's residence. Later, defendant learned of plaintiff's claim when he read the complaint that had been left with his mother. At the time the process server left a copy of the summons and complaint for defendant with defendant's mother, defendant continued to receive mail at his mother's address. Motor Vehicles Division records showed defendant and his father as the registered owners of the vehicle involved in the accident and showed defendant's mother's address.
The applicable statute of limitations for plaintiff's claim is two years. ORS 12.110 (1).
At defendant's deposition taken on October 3, 1988, defendant testified that in March 1988 he was probably living at his girlfriend's home.
The record is unclear as to exactly when defendant read the complaint at his mother's home. At his deposition taken on October 3, 1988, defendant testified that to the best of his recollection "it was like in March or April of this year [1988]." Then later in the same deposition he said it could have been "[f]our months or so [earlier]."
Defendant moved for summary judgment, claiming that he was not properly served with the summons and complaint. The trial court relied on Jordan v. Wiser, 302 Or. 50, 726 P.2d 365 (1986), and granted defendant's motion for summary judgment. The trial court found "[t]hat at the time of service upon defendant['s mother], [defendant] was not a resident of the household of [his mother] and did not reside at [that] address."
The trial court also granted summary judgment to defendant's mother because she was not the owner of the automobile. Plaintiff did not appeal that judgment.
The Court of Appeals, relying on our decision in Lake Oswego Review v. Steinkamp, 298 Or. 607, 695 P.2d 565 (1985), held that defendant had been properly served because the service was reasonably calculated to apprise defendant of the pendency of the action. Baker v. Foy, 99 Or. App. 410, 414, 782 P.2d 439 (1989). Presiding Judge Buttler dissented, believing that this case is a clone of Jordan v. Wiser, supra, that there had been no service of summons on defendant and that, therefore, actual notice did not cure defective attempted service. 99 Or App at 414-15.
We granted defendant's petition for review to determine whether valid service had been made and whether the relationship between Jordan v. Wiser, supra, and Lake Oswego Review v. Steinkamp, supra, needs clarification.
Under ORCP 4, an Oregon court does not have jurisdiction over a defendant unless there is service of summons pursuant to ORCP 7. Adequate service of summons is required to prevent the running of the applicable statute of limitations. See ORS 12.020.
The pertinent provisions of ORCP 7 relating to service of summons are set out at length in the Appendix to this opinion and will be referred to as appropriate.
ORCP 7 D(1) sets forth a "reasonable notice" standard for determining adequate service of summons: "Summons shall be served * * * in any manner reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend. * * *" (Emphasis added.) Rather than requiring a particular manner of service to satisfy the standard of adequate service, the rule endorses the process of examining the totality of the circumstances, to determine if the service of summons was reasonably calculated to provide defendant with notice of the action and reasonable opportunity to appear and defend. Lake Oswego Review v. Steinkamp, supra, 298 Or at 611.
The phrase "reasonable notice" is a shorthand description of the requirement of adequate service set forth in ORCP 7 D(1) and used by Professor Merrill in his discussion of the standard of adequate service under ORCP 7. See Merrill, Jurisdiction and Summons in Oregon 141, § 2.02 (1986). See also Annot., Necessity and Sufficiency of Service of Process Under Due Process Clause of Federal Constitution's Fourteenth Amendment — Supreme Court Cases, 100 L Ed 2d 1015, 1027 § 7 (1990). So understood, "reasonable notice" is not a free-standing concept.
In determining whether notice is adequate, most courts, including this one, usually look at the totality of the circumstances retrospectively. A literal reading of the quoted language of ORCP 7 D(1) suggests, however, that the reasonableness of the means chosen to make service by plaintiff or plaintiff's attorney be examined prospectively. Prospectively, the inquiry is: Had plaintiff or plaintiff's attorney given instructions to use the means by which service was actually made, would that comply with the requirements of ORCP 7 D(1)? The inquiry from a prospective examination is much the same as if the attorney, being unable to use any of the methods of service specified in ORCP 7 D(2), filed a motion under ORCP 7 D(6)(a) for an order authorizing service thereunder. The question for the judge in the event of such a motion would be: Is the proposed method of service one that "under the circumstances is most reasonably calculated to apprise the defendant of the existence and pendency of the action?" ORCP 7 D(6)(a).
In short, the issue is the same, whether the facts are viewed retrospectively or prospectively: Was the method of service selected — and the case is treated as if the plaintiff's attorney had selected that method of service — "reasonably calculated to apprise the defendant of the existence and pendency of the action?"
To provide guidance for types of service that may meet the "reasonable notice" standard of adequate service, ORCP 7 D(1) lists specific methods of service of summons. Merrill, Jurisdiction and Summons in Oregon 138, § 2.02 (1986). The particular methods of service described in ORCP 7 D(2) are methods which may be used. ORCP 7 D(1). They are not exclusive. Absolute compliance with one of the methods of service specified in ORCP 7 D(1) is, therefore, not required for adequate service of summons on an individual defendant. See Lake Oswego Review v. Steinkamp, supra, 298 Or at 613 (service by mail upon an individual defendant different than the service by mail illustrated in ORCP 7 D(2)(d) held valid service). What is mandatory is that whatever manner or method of service is employed by a plaintiff, it must satisfy the aforementioned "reasonable notice" standard of adequate service of ORCP 7 D(1).
ORCP 7 D(4) specifies a special method of service "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." Plaintiff does not contend that the service in this case is adequate under ORCP 7 D(4).
Service of summons on an individual defendant in accordance with personal service, see ORCP 7 D(2)(a), substituted service, see ORCP 7 D(2)(b), or office service, see ORCP 7 D(2)(c), is presumptively adequate service, i.e., it is presumed to be service reasonably calculated, under all the circumstances, to apprise defendant of the pendency of the action and to afford defendant a reasonable opportunity to appear and defend.
In Lake Oswego Review v. Steinkamp, 298 Or. 607, 613, 695 P.2d 565 (1985), we said, "[s]ervice by mail on individual defendant is not presumptively adequate notice under ORCP 7."
"Although ORCP 7 D(2)(d) describes service by mail, ORCP 7 does not specify mail as a method of service for all defendants. * * * While other jurisdictions, including the federal courts, allow some type of service of summons by mail for individual defendants, the Council [on Court Procedures] decided that mail was not sufficiently reliable to be specified as a general service method for all circumstances."
See Merrill, supra at 156, § 2.11.
Although publication is a method of service mentioned in ORCP 7 D(1), Professor Merrill suggests that it is not presumptively valid service under ORCP 7. Merrill, supra at 171, § 2.19 ("* * * Publication is not a prima facie valid service method under Rule 7. Though it was at one time the primary alternative to the delivery of summons to the defendant, publication is now merely one of the several suggested alternatives if service cannot be made as specified in Rule 7. Publication is not a particularly desirable alternative method of service under the reasonable notice standard of ORCP 7. Publication by itself is not generally considered an adequate method of providing notice.") We express no opinion on this issue. Whether publication is presumptively adequate service under ORCP 7 is not an issue in this case.
ORCP 7 D(2) describes how each of the specified methods of service listed in ORCP 7 D(1) may be made, and ORCP 7 D(3) prescribes when the particular methods of service may be used for particular defendants. For example, ORCP 7 D(3)(a)(i) sets forth the permissible methods of service upon an individual defendant and the preferences that exist among those different approved methods of service.
Subparagraphs D(3)(a)(ii) and (iii) of ORCP 7 set forth additional requirements when an individual defendant is a minor under the age of 14 years or an incapacitated person. These provisions do not apply to the 17-year-old defendant in the instant case.
ORCP 7 E lists the qualifications a person must possess before that person can be authorized to serve summons.
ORCP 7 F(4) describes the effect of failure to make or file a proper proof of service.
ORCP 7 G provides direction to a court in the event there is a failure to comply with certain provisions of ORCP 7.
This court examined ORCP 7 in Lake Oswego Review v. Steinkamp, supra. In that case, the plaintiff mailed the summons and complaint to an individual defendant at a particular address, certified, return receipt requested (restricted delivery). The letter carrier knew the defendant and delivered the summons and complaint to defendant at a different address and had him sign for it. This court held that service was valid under ORCP 7. The court found that, even though the service upon the defendant was different than the "service by mail" illustrated by ORCP 7 D(2)(d), it was reasonably calculated to give notice to the defendant and therefore adequate. Id. at 614.
The next case to involve the interpretation and application of ORCP 7 by this court was Jordan v. Wiser, supra. In Jordan, a process server attempted to make substituted service upon the defendant by leaving certified copies of the summons and complaint with the defendant's mother at her residence in Oregon. At that time, the defendant resided in the State of Washington. A week or two later, the defendant's mother called the defendant and told him that she had been served with summons. On her own initiative, she then drove to Washington and attempted to hand the summons and complaint to the defendant, who refused to accept them.
The Jordan court first determined that at the time the defendant's mother had attempted to give the defendant the summons and complaint, she had not been authorized by the plaintiff or the plaintiff's attorney to serve the summons. The court concluded that, because the attempted service of summons was by a person who was unauthorized to make service, no service had been accomplished. 302 Or at 58 ("[t]he attempted service of summons by an unauthorized person is not a mere defect in service, it is no service").
The Jordan opinion nonetheless then addressed the effect of the defendant's receipt of actual notice of the action on whether there had been adequate service under the "reasonable notice" standard of ORCP 7 D(1). The court noted that actual notice by itself does not necessarily constitute adequate notice and adequate notice does not require actual notice. The court then concluded that the voluntary delivery of the summons to the defendant by his mother was not service in "a manner reasonably calculated to apprise the defendant of the existence and pendency of the action." Id. at 60.
As we implied in Jordan, service of summons by a person authorized by plaintiff or plaintiff's attorney is contemplated, although not expressly, by ORCP 7. 302 Or at 56-58. But our conclusion in Jordan that service of summons by an unauthorized person is "no service" and inadequate as a matter of law is overstated. Such a conclusion does not sufficiently take into account the "reasonable notice" standard expressly set forth in ORCP 7 D(1), which we recognized and applied in Lake Oswego Review, and which requires a court to examine "all the circumstances" in a given case in deciding whether service is or is not adequate. Service of summons by an unauthorized person is an important factor to be considered along with all the other circumstances in a given case in a court's determination of whether the "reasonable notice" standard of adequate service set forth in ORCP 7 D(1) has been met. That portion of Jordan which can be read as holding that service by an unauthorized person is per se inadequate service is disapproved.
In Jordan v. Wiser, 302 Or. 50, 726 P.2d 365 (1986), the process server who delivered the summons and complaint to the defendant's mother for the defendant to appear and defend was authorized by the plaintiff or the plaintiff's attorney to do so. The defendant's mother, on her own initiative, however, drove 200 miles to the defendant's residence in the State of Washington and tried to give the defendant those documents. She was not authorized to do so. In Lake Oswego v. Steinkamp, supra, the letter carrier who delivered the letter to the defendant at an address different than that to which the summons and complaint were directed was, by virtue of the plaintiff's attempted service by mail as described in ORCP 7 D(2)(d), authorized to deliver the summons and complaint to the defendant in that case.
In light of our discussion concerning ORCP 7 and the holdings in Lake Oswego Review and Jordan, this court will set forth an approach for determining the adequacy of service of summons under ORCP 7. We then will apply that approach in the context of the facts of this case. The approach involves two questions.
Question 1. Was the method in which service of summons was made one of those methods described in ORCP 7 D(2), specifically permitted for use upon the particular defendant by ORCP 7 D(3), and accomplished in accordance with ORCP 7 D(2)?
If the answer to
Question 1 is "yes," then the service is presumed to be service reasonably calculated, under all the circumstances, to apprise the defendant of the pendency of the action and to afford the defendant a reasonable opportunity to appear and defend. If there is nothing in the record that overcomes the presumption, this is the end of the inquiry. There is adequate service of summons. The "reasonable notice" standard for adequate service of summons is satisfied.
If the answer to
Question 1 is "no," or there is something in the record that overcomes the presumption of validity of service of summons, proceed to
Question 2.
Question 2. Does the manner of service employed by plaintiff satisfy the "reasonable notice" standard of adequate service set forth in ORCP 7 D(1)?
If the answer to
Question 2 is "yes," service of summons is adequate.
If the answer to
Question 2 is "no," service of summons is invalid. We will now apply this approach to the facts of this case.
The answer to Question 1 is "no." Under ORCP 7 D(3)(a)(i), personal service, see ORCP 7 D(2)(a), substituted service, see ORCP 7 D(2)(b), and office service, see ORCP 7 D(2)(c), are the three specifically authorized methods of service upon an individual defendant of the age and capacity of the defendant in this case. Plaintiff, in the present case, does not, nor legitimately can he, contend that there was either personal service or office service of summons on defendant. Substituted service was not made in accordance with ORCP 7 D(2)(b), because, as the trial court found, defendant's mother's residence was not defendant's "dwelling house or usual place of abode" on March 3, 1988, the date the process server left with defendant's mother a copy of the summons and complaint for defendant. Defendant, as we previously observed in this opinion, had not lived at his mother's residence since August 1985.
The answer to Question 1, as applied to the facts in Jordan v. Wiser, supra, is "no," for these same reasons. Likewise, the answer to Question 1, as applied to the facts of Lake Oswego Review v. Steinkamp, supra, is "no," because the service by mail upon the defendant in that case was not service by mail as described in ORCP 7 D(2)(d). In Steinkamp, we stated that the type of service by mail accomplished on the individual defendant in that case — certified return receipt requested (restricted delivery) — "is more likely to result in adequate service than is `service by mail' of ORCP 7D.(1)(d)." 298 Or at 614.
Plaintiff's failure to make substituted service, as defined in ORCP 7 D(2)(b), is a defect in service of the type described in the second sentence of ORCP 7 G, see Lake Oswego Review v. Steinkamp, supra, 298 Or at 614-15 n 2. Because the answer to Question 1 is "no," such error, for reasons previously indicated, see supra note 12, is to be considered in determining whether the "reasonable notice" standard of service is satisfied. We, therefore, proceed to Question 2.
The answer to Question 2 is "no." It would be improper to disregard the defect in plaintiff's substituted service of summons, under all the circumstances of this case. As we held in Jordan v. Wiser, supra, 302 Or at 60, actual notice by the defendant of the action does not make service adequate under ORCP 7 if the summons is not served in a manner reasonably calculated to apprise the defendant of the existence and pendency of the action against him. In the instant case, defendant's mother was not authorized by defendant to receive the summons on his behalf. Defendant's happenstance reading of the complaint that had been left with his mother while he was making a fortuitous visit to her home is not service in "a manner reasonably calculated" by plaintiff or plaintiff's attorney to apprise defendant of the existence and pendency of the action against him. We find, therefore, that the method or manner of service employed in this case does not satisfy the standard of adequate service set forth in ORCP 7 D(1).
What we said regarding the "reasonable notice" standard in Jordan v. Wiser, supra, 302 Or at 60, would yield a "no" answer to Question 2 as applied to the facts of Jordan. The effect of our holding in Lake Oswego Review v. Steinkamp, supra, would result in a "yes" answer to Question 2, when applied to the facts of that case.
The decision of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.
APPENDIX