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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kuk v. Nalley (09/07/2007) sp-6160

Kuk v. Nalley (09/07/2007) sp-6160, 166 P3d 47

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

THOMAS KUK and SABINA KUK, )
) Supreme Court No. S- 12024
Appellants,)
) Superior Court No.
v. ) 3AN-04-12890 CI
)
JANET NALLEY, ) O P I N I O N
)
Appellee. ) No. 6160 September 7, 2007
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  William Dennie Cook, Law Office
          of  William  D.  Cook, PC, Eagle  River,  and
          Jahna  Lindemuth,  Dorsey  &  Whitney,   LLP,
          Anchorage,  for  Appellants.   Kimberlee   A.
          Colbo,   Hughes  Bauman  Pfiffner  Gorski   &
          Seedorf, LLC, Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          MATTHEWS, Justice.

          A  statute  provides that when a defendant  leaves  the
state her absence is not part of a limitations period.  Does this
statute  apply  when  she is temporarily out  of  the  state  but
amenable  to service of process?  We answer no because  our  case
law establishes that the absence contemplated by the statute must
obstruct  or  prevent  a  suit.  This interpretation  serves  the
policy  of limitations statutes by providing a definite time  and
avoiding needless uncertainty.
     Facts and Proceedings
          On  November 17, 2002, motor vehicles driven  by  Janet
Nalley  and  Thomas Kuk collided.  Thomas, his wife, Sabina,  and
their  children,  Ryan and Laura, were injured in  the  accident.
More  than  two  years later, on November 30,  2004,  Thomas  and
Sabina  sued  Nalley  for personal injuries and  property  damage
arising out of the accident. In the same suit Thomas also sued on
behalf of the Kuks children.
          Nalley moved for summary judgment, arguing that the two-
year  statute  of  limitations  applicable  to  tort  claims  for
personal  injury  and property damage, AS 09.10.070,  barred  the
claims of the adult Kuks.1  The Kuks opposed the motion and filed
a cross-motion on the same issue, arguing that under AS 09.10.130
the  statute of limitations should be extended for the period  of
time that Nalley was absent from the state during the limitations
period.
          The  superior court granted Nalleys motion for  summary
judgment  and  denied the cross-motion of  the  Kuks.2   A  final
judgment  was then entered in accordance with the courts  summary
judgment  order in favor of Nalley and against Thomas and  Sabina
Kuk.  From this judgment the Kuks have appealed.
     Introductory Discussion
          As  this case is presented, there are no genuine issues
of  material fact.  We therefore review the superior courts grant
of  summary  judgment  nondeferentially  in  order  to  determine
whether Nalley was entitled to judgment as a matter of law.3
          The  Kuks point to the fact that Nalley was outside  of
Alaska for health and surgery reasons from November 2003 to  June
2004.   They argue that this period of absence should be excluded
from  the  two-year statute of limitations under the absent-from-
the  state tolling provision contained in AS 09.10.130.4   Nalley
argues  that our decision in Byrne v. Ogle5 held that the absence
tolling   provision  in  AS  09.10.130  does  not   apply   where
substituted  service is available under AS 09.05.020(a)6  and  AS
09.05.0407  and  that substituted service on  her  was  available
during her absence.
          The  Kuks  seek to distinguish Byrne.  They argue  that
Byrne held that the absence tolling provision does not apply only
when statutory substituted service under AS 09.05.020 and .040 is
available.   They  contend  that  substituted  service  was   not
available  because  even though Nalley had  temporarily  departed
from  the state for purposes of the tolling statute she  had  not
moved  from  the  state within the meaning  of  the  substituted-
service  statute.   Therefore Nalley was not  a  nonresident   as
required  under  section .020  and she was not a person  who  has
moved  to  another  state after the accident  as  required  under
section  .040.  They argue that since Byrne does not  apply,  the
case  is  controlled by the plain language of the second sentence
of  AS  09.10.130: If a person departs from the state . .  .  the
time  of  absence . . . is not part of the time limited  for  the
commencement  of  the  action.  Therefore  the  time  of  Nalleys
absence   should  not  be  counted  in  computing  the   two-year
limitations  period.   The  Kuks also contend  that  the  tolling
provision does not require a showing that a plaintiff is actually
unable to effect service on an absent defendant, but instead that
[t]he  statute  correctly  presumes that  a  seven-month  absence
          seriously decreases the Kuks ability to prove their cause of
action  and  effectuate  commencement of an  action  against  Ms.
Nalley.
          We  do  not  find it necessary to resolve the  question
whether  the  moved to language of AS 09.05.040  applies  to  any
departure  from the state.  Instead, we affirm on the basis  that
the  reasoning in Byrne is not limited to the substituted-service
statute,  but also applies to extraterritorial service under  the
Civil  Rules  authorized by the long-arm statute,  AS  09.05.015.
Our reasons follow.
     Byrne v. Ogle
          Alaska Statute 09.10.130 has not been changed since  it
was  first  adopted by the state legislature  in  1962.   Similar
provisions  existed in the statutes governing  the  Territory  of
Alaska  and  the  pre-territorial District of Alaska.8   Numerous
other states also have statutes with similar tolling provisions.9
          This  court addressed the continuing relevance  of  the
absence tolling statute in Byrne.  The defendant, Ogle, was in an
automobile accident in Alaska.10  The United States Army  rotated
him  out  of the state before the two-year statute of limitations
ran,  but  he  remained amenable to service under  the  statutory
substituted-service provisions of AS 09.05.020 and AS 09.05.040.11
We  held  that  the  tolling statute and the  substituted-service
statute must be examined together in order to determine the  true
meaning of the tolling statute:
               It  is  conceded  that  if  the  tolling
          statute  is  examined  in  isolation,   while
          ignoring  all other considerations, it  might
          be  read as indicating that where a defendant
          departs  from  the  state after  a  cause  of
          action  accrues, the time he is absent should
          not  be  considered as part of the period  of
          limitation.   However, in  order  to  give  a
          statute its true meaning, it must be examined
          in  conjunction  with other statutes  bearing
          upon the problem being considered.[12]
          
          We noted that under the substituted-service statute the
plaintiff  was  able  to serve the defendant notwithstanding  his
absence from the state.13  Because the defendants absence was thus
irrelevant  to  the  ability  of the plaintiff  to  commence  and
maintain  a suit, we concluded that applying the tolling  statute
was neither necessary nor justifiable:
               The  right of the plaintiff to  commence
          his  action  and  obtain  a  judgment,  being
          complete  and  unaffected by  the  defendants
          absence,  it  is not necessary or justifiable
          to   extend   AS  09.10.130  to  cover   this
          situation   in   which   the   appellee   was
          personally  absent, but at all times  subject
          to  substituted service upon the Commissioner
          of  Revenue.  To ignore this fact and give  a
          broader  application to the  tolling  statute
          would    lead    to    undesirable    results
               inconsistent with the purposes of statutes
          dealing with periods of limitation.
          
               . . . .
          
               To  apply  the  tolling  statute  to   a
          situation where the defendant is at all times
          amenable  to  service  is  repugnant  to  the
          general  purposes of statutes of limitations.
          The   policy  of  the  law  is  to  allow   a
          reasonable  but definitely limited  time  for
          the  bringing  of an action after  which  the
          matter is put to rest.[14]
          
          We also emphasized the purpose of the tolling statute:
               It   is  the  apparent  purpose  of  the
          tolling statute to prevent a plaintiffs being
          deprived of an opportunity to prove his cause
          of  action by the defendant absenting himself
          from the jurisdiction for the duration of the
          period  of  limitation.  The tolling  statute
          preserves  the  plaintiffs  cause  of  action
          until  service  has been made  available  and
          practical, by the defendants presence in  the
          state,  for a time equal to the total  period
          of limitation.
          
               The essence of the difficulty sought  to
          be  remedied by the suspensory statute is not
          mere  personal absence of the defendant,  but
          such  unavailability as will defeat the power
          of  a plaintiff to effectuate commencement of
          his action.[15]
          
As  this language suggests, the premise of the tolling statute is
that  a  defendants personal absence from the jurisdiction  makes
service on the defendant either impossible or difficult and  this
makes commencement or maintenance of a suit against the defendant
likewise impossible or difficult.
          This premise was once valid.  But the shift in personal
jurisdiction jurisprudence effectuated by International Shoe  Co.
v.  Washington16  and its progeny have made the  premise  of  the
statute  no  longer  valid  in most  cases.   International  Shoe
signaled the end of the requirement that a person must be  within
the  territorial jurisdiction of a court in order for that  court
to  have  jurisdiction.17  Instead, the International Shoe  Court
held that due process only requires that a defendant have certain
minimum contacts with [a state] such that the maintenance of  the
suit  does  not  offend  traditional notions  of  fair  play  and
substantial justice.18
          International   Shoe  prompted  the   promulgation   of
numerous  statutes  and rules authorizing suits  against  out-of-
state  defendants  and facilitating service of process  on  them.
One  example of such a statute is the substituted-service statute
under which service was made in Byrne.  This was enacted in 1960.19
Another  statute  reflecting the International  Shoe  changes  is
          Alaskas long-arm statute, codified as AS 09.05.015.  This was
enacted in 1968.20  It sets out circumstances, including types of
contacts  with Alaska, under which personal jurisdiction  may  be
exercised over defendants.  The long-arm statute defines personal
jurisdiction  comprehensively,  though  not  exclusively.21    It
includes cases where both resident and nonresident defendants are
alleged to have acted in a manner giving rise to liability in the
state.   Personal service under the statute is to be accomplished
according to the rules of civil procedure.22
          At  the  time of the enactment of the long-arm statute,
Rule  4  of the Alaska Civil Rules provided that a person outside
the  state could be served in the same manner as if service  were
made  within the state, except that service shall be  made  by  a
sheriff,  constable,  bailiff, peace  officer  or  other  officer
having like authority in the jurisdiction where service is made.23
Rule 4 also provided for service by publication upon a showing of
diligent inquiry as to an absent partys whereabouts.24  By 1977 a
person  out  of  the  state  could be  served  by  registered  or
certified mail with return receipt requested.25
          Although   the   service  of  process  in   Byrne   was
accomplished  under  the  substituted-service  provisions  of  AS
09.05.020  and .040, the same analysis employed in Byrne  applies
where  personal  jurisdiction  is available  under  the  long-arm
statute.   Just  as  the substituted-service statute  had  to  be
considered   in  conjunction  with  the  tolling   statute   when
interpreting  the latter so, logically, must other statutes  that
have the effect of authorizing service on absent defendants.   As
we  have seen, AS 09.05.015, by authorizing service according  to
the  Civil  Rules, authorizes service on absent  defendants.   It
applies  to  this  case because AS 09.05.015(a)(3)  provides  for
jurisdiction in an action claiming injury to person and  property
in the state arising out of an act or omission in the state by  a
defendant.26   Based on the long-arm statute  and  the  means  of
service  available  under our Civil Rules,  it  is  evident  that
Nalley  was  at  all times amenable to service  of  process.   We
conclude  therefore  that the reasoning  of  the  Byrne  decision
applies to this case.
     Precedent in Other Jurisdictions
          Our  holding is supported by decisions of courts  of  a
number of other jurisdictions.  A good recent example is Shin  v.
McLaughlin.27  In Shin the Hawaii Supreme Court held that Hawaiis
similar absence-from-the-state tolling provision did not apply to
a  motorist  who  left the state after an automobile  accident.28
Under Hawaiis long-arm statute motor vehicle operators who are no
longer  in  the  state are amenable to extra-territorial  service
either  personally  or  by certified or registered  mail.29   The
Hawaii  court reasoned that the term out of state in the  tolling
statute  should  be  construed to refer only  to  defendants  who
cannot be served with process.30  In reaching this conclusion the
court  reviewed  the decisions of other jurisdictions,  including
Alaska:
               In  Meyer  v.  Paschal, 498  S.E.2d  635
          (S.C. 1998), the South Carolina Supreme Court
          construed a similar tolling statute . . . .
          
               The  Meyer  court explained  that  South
          Carolina  enacted this tolling  provision  in
          1870  in order to protect its residents  from
          defendants who were not amenable to  personal
          service  of  process because  the  defendants
          were  out  of the State. Id. at 637 (footnote
          omitted).  The  court  further  stated   that
          [b]ecause  the  tolling statute  was  enacted
          during  a period of history when the  ability
          to   obtain  personal  jurisdiction  over  an
          out-of-state  defendant was severely  limited
          by  the  due  process  clause,  this  statute
          served  the  important purpose of  preventing
          the  statute of limitations from expiring  on
          valid   claims   when   the   defendant   was
          out-of-state  and  personal jurisdiction  was
          not  possible.  Id. See also Byrne  v.  Ogle,
          488  P.2d  716,  717-18  (Alaska  1971)  (The
          tolling   statute  preserves  the  plaintiffs
          cause  of action until service has been  made
          available  and  practical, by the  defendants
          presence  in the state, for a time  equal  to
          the  total period of limitation.);  Selby  v.
          Karman,  521  P.2d 609 (Ariz. 1974)  (stating
          that   the  clear  purpose  of  the  absentee
          tolling  statutes is to prevent  a  defendant
          from  defeating plaintiffs claim by absenting
          himself from the state); Lipe v. Javelin Tire
          Co.  Inc.,  536  P.2d 291, 294  (Idaho  1975)
          (believing the purpose of the tolling statute
          is  to prevent the running of the statute  of
          limitations during the time that a  defendant
          was   unavailable  for  service  of   process
          because he was absent from the state).
          
               Consistent  with  these purposes,  other
          courts  have interpreted the term  absent  or
          out  of the state to mean a defendant who  is
          beyond  personal jurisdiction and process  of
          the  court and not simply a defendant who  is
          physically absent from the state. Meyer,  498
          S.E.2d  at  639;  Byrne,  488  P.2d  at   718
          (construing  a similar statute  as  not  mere
          personal  absence of the defendant, but  such
          unavailability as will defeat the power of  a
          plaintiff to effectuate commencement  of  his
          action);  Phillips  v. Anchor  Hocking  Glass
          Corp., 413 P.2d 732 (Ariz. 1966) (without the
          state  or absent means that defendant  cannot
          be  served with process), overruled on  other
          grounds by Northern Propane Gas Co. v. Kipps,
          622  P.2d  469 (Ariz. 1981); Peters v.  Tuell
          Dairy Co., 35 So. 2d 344 (Ala. 1948) (absence
          from the state means that the state does  not
          have jurisdiction over the person).[31]
          
          There  is also contrary authority that applies  similar
tolling  provisions to defendants despite the fact that they  may
be   served   extraterritorially.32   We   have   expressed   our
disagreement with this line of cases in Byrne33 and see no reason
to change our view.
     Policy Considerations
           We  believe that the plain language approach advocated
by the appellants would introduce a needless level of uncertainty
into  the application of statutes of limitations.  Before a court
could decide whether a statute has run, there would have to be  a
preliminary  adjudication  as  to  the  number  of  days  that  a
defendant has been outside the state.
          Even this is an oversimplification because under Bendix
Autolite  Corp. v. Midwesco Enterprises, Inc.34 and  its  progeny
absences   for   purposes   of  interstate   commerce   may   not
constitutionally stop the running of a period of limitations.  In
Bendix,  an  out-of-state corporation was subject to jurisdiction
in  Ohio  under  the states long-arm statute.35  If  the  tolling
statute  applied, the corporation would be denied the defense  of
the statute of limitations,36 whereas Ohio companies could rely on
the  defense.  The Court held that this discriminatory  treatment
amounted  to an unreasonable burden on commerce.37  While  Bendix
dealt  specifically  with the case of a non-resident  corporation
doing  business in the state, courts following Bendix  have  held
that    absent-from-the-state   tolling   provisions   may    not
constitutionally be applied to individuals engaged in  interstate
commerce.38  Bendix thus complicates the application  of  absence
tolling statutes to residents such as Nalley who leave the  state
because the reasons for their absence must be inquired into.  The
tolling  statute  may  not exclude days of  absence  for  reasons
related  to  interstate commerce, even if it  does  exclude  days
where  the  defendant is absent for other reasons.39   A  further
complicating factor is that there is considerable uncertainty  as
to  what  constitutes  the  pursuit of  interstate  commerce  for
purposes of the Bendix test.40
          The    uncertainty   engendered   by   the    statutory
construction advocated by appellants would be antithetical to the
purpose of statutes of limitations.  As we stated in Byrne:   The
policy of the law is to allow a reasonable but definitely limited
time for the bringing of an action after which the matter is  put
to rest.41  Here, as in Byrne, to apply the tolling statute to  a
situation where the defendant is at all times amenable to service
is repugnant to the[se] general purposes.42
     Conclusion
          For the above reasons we hold that when a person is out
of  the state and is at all times amenable to service of process,
the  absence  provisions of AS 09.10.130  do  not  apply.43   The
judgment is AFFIRMED.
_______________________________
     1    Nalley did not seek summary judgment against the claims
of  the  children.  Under  the minor  tolling  provisions  of  AS
09.10.140 the childrens claims are not time-barred.

     2     The  childrens claims were dismissed without prejudice
by stipulation.

     3    Zok v. Collins, 18 P.3d 39, 41 (Alaska 2001).

     4    AS 09.10.130 provides:

               When the cause of action accrues against
          a person who is out of the state or concealed
          in  the  state, the action may  be  commenced
          within  the periods provided in this  chapter
          after  that  person returns to the  state  or
          when  the  concealment ceases.  If  a  person
          departs  from  the  state  or  conceals  ones
          person after the cause of action accrues, the
          time of absence or concealment is not part of
          the  time limited for the commencement of the
          action.
          
(Emphasis added.)



     5    488 P.2d 716 (Alaska 1971).

     6    AS 09.05.020 provides:

               (a) The operation of a motor vehicle  by
          a  nonresident, or owned by a nonresident and
          operated by the express or implied consent of
          the   owner,   in  the  state  is  considered
          equivalent   to   an   appointment   of   the
          commissioner   of   administration   by   the
          nonresident  as  the  nonresidents  attorney.
          The summons may be served on the commissioner
          in  an action against the nonresident growing
          out  of an accident or collision in which the
          vehicle  is involved while being so operated.
          This  operation is considered a signification
          of  the nonresidents agreement that a summons
          against  the nonresident which is  so  served
          has  the same legal force as if served on the
          nonresident personally in the state.
          
               (b)  Service of the summons is  made  by
          leaving a copy of it with the commissioner of
          administration   or  the  designee   of   the
          commissioner.  The commissioner or a designee
          shall keep a record of each such process  and
          the day and hour of service.  This service is
          sufficient service on the nonresident.
          
               (c)  The  plaintiff  or  the  plaintiffs
          attorney  shall send a notice of the  service
          and a copy of the summons to the defendant by
          registered mail within 10 days after the date
          of service.
          
               (d)  The  plaintiff  or  the  plaintiffs
          attorney shall make an affidavit showing that
          service  of  the  notice and summons  on  the
          defendant has been made by registered mail as
          provided in (c) of this section.  The affiant
          shall  attach to the affidavit a copy of  the
          summons and notice so served and the registry
          receipt of the defendant.  The affiant  shall
          file  the affidavit and attached papers  with
          the court having jurisdiction of the cause.
          
               (e)  The  court in which the  action  is
          pending  may  order  an  extension  of   time
          necessary  to  give the defendant  reasonable
          opportunity to defend the action.
          
     7    AS 09.05.040 provides:

               A  resident  who  has operated  a  motor
          vehicle,   or  has  owned  a  motor   vehicle
          operated with the express or implied  consent
          of  the  owner that has been involved  in  an
          accident  or  collision on a public  highway,
          and  who has moved to another state after the
          accident or collision shall be treated  as  a
          nonresident   for  service  of   process   as
          provided under AS 09.05.020 and 09.05.030.
          
(Emphasis added.)

     8     Provisions  tolling the statute of limitations  during
the  defendants  absence  from  the  jurisdiction  originated  in
England.   Alaska Credit Bureau of Juneau v. Fenner, 80 F.  Supp.
7,  8 (D. Alaska Terr. 1948) (citing chap. 16,  19 of the Statute
of  Anne).   The United States Congress adopted the  statute  for
Alaska  in  1900.    15,  pt. IV, Carters Annotated  Alaska  Code
(1900).   It  was  based  on a similar Oregon  statute  that  was
enacted   in   1862.   Id.   This  statute  remained  essentially
unchanged  until  statehood.   847 Compiled Laws Annotated  (CLA)
(1913);  3365 CLA (1933);  55-2-14 Alaska Compiled Laws Annotated
(1949).

     9     E.g.,  Cal. Civ. Proc. Code  351; Idaho Code Ann.   5-
229; Me. Rev. Stat. Ann. tit. 14,  866; Miss. Code Ann.  15-1-63;
Mo.  Ann. Stat.  516.200; Neb. Rev. Stat.  25-214; Ohio Rev. Code
Ann.  2305.15(A); Or. Rev. Stat. Ann.  12.150; S.C. Code Ann.  15-
3-30;  S.D.  Codified Laws  15-2-20; Tenn. Code  Ann.   28-1-111;
Tex.  Civ. Prac. & Rem. Code Ann.  16.063; Utah Code Ann.  78-12-
35; Wash. Rev. Code Ann.  4.16.180; Wyo. Stat. Ann.  1-3-116.

     10    488 P.2d at 716.

     11    Id. at 716-17.

     12    Id. at 717.

     13    Id. at 718.

     14    Id.

     15    Id. at 717-18 (citations omitted).

     16    326 U.S. 310 (1945).

     17    Id. at 316.

     18    Id. (quotations omitted).  To quote more fully:

               Historically the jurisdiction of  courts
          to render judgment in personam is grounded on
          their  de  facto  power over  the  defendants
          person.    Hence  his  presence  within   the
          territorial   jurisdiction   of   court   was
          prerequisite to its rendition of  a  judgment
          personally binding him.  Pennoyer v. Neff, 95
          U.S.  714, 733, 24 L. Ed. 565.  But now  that
          the  capias ad respondendum has given way  to
          personal service of summons or other form  of
          notice,  due  process requires only  that  in
          order to subject a defendant to a judgment in
          personam,  if  he be not present  within  the
          territory  of  the  forum,  he  have  certain
          minimum  contacts  with  it  such  that   the
          maintenance  of  the  suit  does  not  offend
          traditional   notions  of   fair   play   and
          substantial justice.
          
Id. (quotations omitted).

     19    Ch. 16,  1, SLA 1960.

     20    Ch. 87,  1, SLA 1968.

     21    The intended reach of the long-arm statute is as broad
as  is  permitted under the due process clause of the  Fourteenth
Amendment.  Alaska Telecom, Inc. v. Schafer, 888 P.2d 1296,  1299
(Alaska 1995).

     22    AS 09.05.015(a).

     23     This  language was originally in Civil Rule  4(e)(2).
Alaska Supreme Court Order No. 49 (January 1, 1963).  In 1979 the
language  was  moved  to  Civil Rule  4(d)(12),  where  it  still
resides.  Alaska Supreme Court Order No. 357 (June 30, 1979).

     24      The   original  provision  discussing   service   by
publication  was  promulgated as Rule 4(e)(3)  in  1963.   Alaska
Supreme  Court Order No. 49 (January 1, 1963).  It was  moved  to
its  current  location, Rule 4(e)(2), in  1979.   Alaska  Supreme
Court  Order  No.  357 (June 30, 1979).  Service  by  publication
requires, in addition to newspaper publication, that the  summons
and  complaint  be sent to the last known address of  the  absent
party  by registered or certified mail unless a showing  is  made
that  the  last known address of the absent party is unknown  and
cannot be ascertained after inquiry.  Alaska R. Civ. P. 4(e)(2).

     25     At  the time of the enactment of the long-arm statute
Rule  4(h)  provided  for  service of process  by  registered  or
certified  mail with return receipt requested, but  this  applied
only to mail within the state.  Alaska Supreme Court Order No. 90
(July  24,  1967).  Rule 4(h) was amended in 1977  to  allow  for
service  by  registered or certified mail anywhere in the  United
States.  Alaska Supreme Court Order No. 266 (March 31, 1977).

     26    AS 09.05.015(a)(3) provides:

               A    court   of   this   state    having
          jurisdiction  over  the  subject  matter  has
          jurisdiction  over  a  person  served  in  an
          action  according  to  the  rules  of   civil
          procedure
          
               . . .
          
               (3)  in  an  action claiming  injury  to
          person  or  property in or out of this  state
          arising  out  of an act or omission  in  this
          state by the defendant[.]
          
     27    967 P.2d 1059 (Haw. 1998).

     28    Id. at 1060, 1061.

     29    Id. at 1064.

     30    Id.

     31    Id. at 1062-63.

     32     E.g.,  Dew  v. Appleberry, 591 P.2d 509 (Cal.  1979);
Couts  v.  Rose, 90 N.E.2d 139 (Ohio 1950); Vaughn v. Deitz,  430
S.W.2d  487  (Texas 1968); Olseth v. Larsen, 158 P.3d  532  (Utah
2007).

     33    488 P.2d at 717:

          Appellant   asserts  that   to   permit   the
          availability of a statutory agent for service
          of  process  to avoid the suspension  of  the
          statute of limitations is to impliedly  amend
          the  tolling  statute by the  addition  of  a
          limitation not expressed. Some of  the  cases
          adopting the minority viewpoint have so held.
          We cannot agree with their analysis.
          
Id. (citations omitted).



     34    486 U.S. 888 (1988).

     35    Id. at 894.

     36    Id. at 891-92.

     37    Id. at 891.

     38     See, e.g., Rademeyer v. Farris, 284 F.3d 833,  838-39
(8th  Cir.  2002)  (holding that a Missouri tolling  statute  was
unconstitutional under the commerce clause in the situation where
a resident defendant moved out of state); Abramson v. Brownstein,
897  F.2d  389,  392  (9th Cir. 1990) (holding  that  Californias
tolling statute could not constitutionally be applied to  a  non-
resident entering into a sales transaction with a resident  since
the  non-resident was engaged in interstate commerce);  Tesar  v.
Hallas,  738 F. Supp. 240, 241-42 (N.D. Ohio 1990) (holding  that
the Ohio tolling statute could not be constitutionally applied to
a  person who had moved out of Ohio to take a job in Pennsylvania
since  interstate commerce is affected when persons move  between
states in the course of or in search for employment); McFadden v.
Battifora,  2004 WL 103353, at *4 (Cal. App. 2004) (holding  that
because  Dr.  Medeiros, a former California  resident,  moved  to
Texas  to  take a new job in 1998, thereby engaging in interstate
commerce the tolling statute could not be applied under Bendix).

     39     An illustrative case is Filet Menu, Inc. v. Cheng, 84
Cal.  Rptr.  2d  384 (Cal. App. 1999).  Cheng  was  a  California
resident sued for breach of contract in California more than five
years  after the date of the apparent breach.  Id. at  385.   The
plaintiff  claimed that Cheng had been out of  the  state  for  a
sufficient time after the breach of contract to prevent the four-
year  statute of limitations from having run.  Id. at  386.   The
court   recognized   that  the  tolling   provision   could   not
constitutionally  be applied to any travel by  Cheng  related  to
interstate commerce and that a remand was necessary to  determine
the specific reasons for Chengs out-of-state travel.  Id. at 388-
89.

     40     This  question was much litigated in the intermediate
courts  of  Ohio.  Compare Permanent Gen. Ins. Cos. v.  Dressler,
720  N.E.2d  959, 961 (Ohio App. 1998) (Dressler, a  resident  of
Ohio,  amenable  to service, left the state to vacation.   Surely
the  act  of  vacationing  out  of  state  implicates  interstate
commerce.  An entire industry has grown around the simple act  of
leaving ones home for a short respite in another state or another
country.)  with Lovejoy v. Macek, 702 N.E.2d 457, 462 (Ohio  App.
1997)  (holding  six-to-nine-day absence from Ohio  for  vacation
purposes  does  not  rise to the level  of  an  act  engaging  in
interstate  commerce,  mooting question  of  whether  absence  to
attend  college is interstate commerce).  The Ohio Supreme  Court
in  Johnson v. Rhodes resolved the question in Ohio as to whether
applying the tolling statute to a resident who takes a short out-
of-state   vacation  constitutes  an  impermissible   burden   on
commerce.  733 N.E.2d 1132, 1134 (Ohio 2000).  The court answered
this  question  in the negative, ruling that the tolling  statute
may  constitutionally  be applied to a resident  who  temporarily
leaves the state of Ohio for non-business reasons.  Id. at  1134.
But many questions remain as to what conduct falls within Bendix,
both in Ohio and elsewhere, in jurisdictions that have adopted  a
plain  language  approach  to their tolling  statutes.    In  the
present  case,  it  is  unclear whether  Nalley  was  engaged  in
interstate commerce when she was outside the State of Alaska  for
health and surgery reasons.

     41    488 P.2d at 718.

     42    Id.

     43     As  this case does not involve the concealment  of  a
defendant, this opinion should not be construed to apply to cases
of concealment under AS 09.10.130.

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