Lachenmeier, Enloe & Rall - May, 1998 Publication

DMV Service out - Mail Service in
May, 1998

As a result of recent changes in the Oregon Rules of Civil Procedure, service of Summons in Oregon state courts has become substantially easier for plaintiffs, increasing the likelihood that plaintiff attorneys will not run afoul of the statute of limitations and that insureds will be served without knowing it. Opportunities for insurers to know about service, however, before application for default is made, have increased under the new rule. Insurers who are attentive should be able to avoid any default problems.

Beginning January 1, 1998, DMV service no longer exists in Oregon. In its place is a modified form of the former DMV service, which retains most of the mailing aspects of the former DMV service, while eliminating the need to drop copies of the papers off at the DMV office, and all but eliminating the need to first try to serve the defendant in some manner other than mail service.

Under the newly formulated ORCP 7D(4), all a plaintiff's attorney needs to do to avail him or herself of mail service is to make "at least one attempt to serve the defendant...by a method authorized by subsection (3)" of ORCP 7. This means that one trip to the defendant's home, or office if there is one, is all that is required before the mails are resorted to. Anyone who has ever failed to receive a letter that was sent will understand the potential problems with allowing service to be completed by merely mailing the Summons and Complaint. The new mail service procedure does not require that the defendant receive the papers. It only requires that they be sent.

While there are some protections for the defendant built into the new rule, such as requiring the plaintiff who uses mail service to mail to all addresses which are known for the defendant, or that can be obtained from the DMV, it is still possible to catch some defendants unaware. The old requirement that the insurer must be copied with the Summons and Complaint before default is applied for was retained, and was even improved upon. Under the old rule, the plaintiff's attorney could move for default as soon as 14 days after sending the papers to the insurer. This has been changed to 30 days and notice to the insurer must follow very strict requirements.

The cautious insurer will forewarn the insured to watch the mails closely if suit papers are expected and to pick up from the Post Office any mail for which a notice arrives from the mail carrier. As has always been true, the insured should be instructed to let the insurer know immediately when suit papers arrive, and to accurately report the details, of how, when, and by whom, the papers were received.