By Joseph F. Verser and Jordan C. Heath, Heath, Old & Verser, P.L.C.
Everyone has seen legal dramas where a mysterious person discreetly walks up to someone, asks his or her name, hands the person some documents, and says, “You have been served.” In the law, this is known as “personal service.” Television has conditioned the public so much that most people assume personal service is the only way to be served with a lawsuit.
Our firm has seen people go to great lengths to dodge process servers, such as hiding out in the woods or giving fake names to process servers. In an extreme case, we had an individual temporarily living abroad who was actively planning a self-imposed exile because, by chance, he found out that a significant lawsuit was filed against him, and a process server was asking around. The individual was hoping he could wait out the statute of limitations. He was wrong. Contrary to popular belief, there are several forms of “substituted service” which are equally effective to set the train in motion to commence a lawsuit. Below are several alternatives to personal service.
If you are a “nonresident” and someone wants to serve you for an action growing out of an automobile accident in which you, your agent or your employee was involved, while driving in Virginia, then the plaintiff can serve the commissioner of the Department of Motor Vehicles as your designated agent. If you are a nonresident and have certain minimum contacts with Virginia, the Secretary of the Commonwealth of Virginia can be served as your agent. Curiously, service is “effective” when the secretary or commissioner is served. They will then sign a certificate of compliance confirming that they, as your statutory agent, mailed the document to you as required by Virginia Code § 8.01-312. Believe it or not, you don’t technically have to EVER receive the documents.
For automobile accident cases, you can be a “nonresident” for the purpose of DMV service or Secretary of the Commonwealth service even though you are a “resident” at the time of the accident but have been continuously outside of Virginia for at least 60 days at which point you are fair game for substituted service. You could be a resident for all other practical purposes, but still be served through the DMV.
For those people thinking of hiding in the woods or giving a fake name, you can also be served through the Secretary of the Commonwealth. The person seeking service fills out the service form for the Secretary of the Commonwealth, fills in your “last known address,” signs the part of that affidavit that states he or she has exercised “due diligence” in looking for you but can’t find you, and service is effective when the secretary is served. The Secretary of the Commonwealth then mails the documents to the address presumed to be your last known address. On the first return for the case, the plaintiff will explain “due diligence” to the court.
Other means of serving papers include, but are not limited to, leaving the documents at your house with a family member who is 16 or older, posting the lawsuit to the front door of your home or even serving by publication by which an attorney takes out an ad in a local newspaper.
You can be “served” and not even know it. Twenty-one days after service, if you have not answered the lawsuit, the person suing you can go in front of a judge and request a default judgment against you.
Here are some helpful tips to avoid that:
- Keep your information current with the DMV.
- If you plan to spend an extended time out of Virginia, make sure someone is receiving or forwarding your mail.
- Regularly check the exterior doors to your residence as process servers can post to them (you would be surprised how many people do not regularly use their front door).
- If you think someone is trying to serve you, pick up the phone and call a lawyer.
Joe Verser and Jordan Heath are both attorneys with the law firm Heath, Old & Verser, P.L.C. They handle a broad range of civil lawsuits. They can be reached at 757-599-0734 or on their firm’s website at www.hovplc.com.