Bennett v. Dalton

• Decision Date: 09 February 2004
• Docket Number: No. 50864-4-I.,50864-4-I.
• Citation: 120 Wash.App. 74,84 P.3d 265
• Parties: Robert BENNETT and Jane Doe Bennett, husband and wife; and Roy Y Auto Wrecking, Inc., a Washington corporation, Appellants, v. Robin DALTON and John Doe Dalton, husband and wife and the marital community composed thereof, Respondents.
• Court: Washington Court of Appeals

84 P.3d 265

120 Wash.App. 74

Robert BENNETT and Jane Doe Bennett, husband and wife; and Roy Y Auto Wrecking, Inc., a Washington corporation, Appellants, v. Robin DALTON and John Doe Dalton, husband and wife and the marital community composed thereof, Respondents.

No. 50864-4-I.

Court of Appeals of Washington, Division 1.

February 9, 2004.

David Michael Jacobi, Wilson Smith Cochran Dickerson, Seattle, WA, for Appellants.

Frederick P. Langer, Nelson Tyler Langer, Iro Richard Lassman, Seattle, WA, Charles Kenneth Wiggins, Kenneth Wendell Masters, Shelby R. Frost, Bainbridge Island, WA, for Respondents.

SCHINDLER, J.

In this appeal we consider whether a plaintiff's lawsuit against multiple defendants tolls the statute of limitations for an independent cross claim by one defendant against another defendant for personal injuries. Sherril Rieger sued Robert Bennett and Robin Dalton for negligence and injuries caused in a car accident. After the three-year statute of limitations had run, Dalton filed a cross claim against Bennett alleging that Bennett was negligent and liable for Dalton's personal injuries. The trial court ruled that Dalton's cross claim was barred by the statute of limitations and granted Bennett's motion to dismiss. On reconsideration, the trial court reinstated Dalton's cross claim against Bennett, and we granted discretionary review. We conclude Rieger's lawsuit did not toll the statute of limitations on Dalton's independent and separate cause of action against Bennett for her own personal injuries. A defendant must file a cross claim that seeks to recover damages for her own injuries from another defendant within the statute of limitations. We reverse the trial court's order reinstating Dalton's cross claim and on remand direct entry of summary judgment in favor of Bennett.

FACTS

On September 18, 1998, Rieger, Bennett and Dalton, were involved in a three-car accident on Interstate 405. Bennett rear-ended the car Dalton was driving and Dalton, who was stopped behind Rieger, rear-ended Rieger's car. Under the applicable statute of limitations, personal injury claims had to be commenced within three years.

In July 2000 Dalton's lawyer informed Bennett's insurance company that Dalton intended to file a lawsuit against Bennett for her own personal injuries from the September 18 car accident.

On April 16, 2001 Rieger filed a complaint for personal injuries against Bennett, Roy Y Auto Wrecking and Dalton. Rieger's lawsuit also included allegations and a claim for personal injuries related to a separate car accident involving her husband and others that occurred fifteen days earlier on September 3, 1998. As to the September 18, 1998 accident, Rieger alleged that Bennett was negligent and caused the collision with Dalton. Rieger sought judgment against both Dalton and Bennett for her damages.

In May 2001, Dalton filed a notice of appearance. Bennett also appeared and filed an answer. In his answer to Rieger's complaint Bennett admitted that he negligently failed to stop and caused the collision with Dalton's car, which in turn collided with Rieger's car, but he claimed that Rieger's injuries were caused by the September 3 accident, not the September 18 car accident.

On October 8, 2001, more than three years after the car accident, Dalton filed an answer to Rieger's complaint and a cross claim against Bennett. Dalton alleged in the cross claim that she was severely injured and that Bennett was liable for her damages. In answer to Dalton's cross claim, Bennett denied the allegations and asserted that Dalton's cross claim was barred by the statute of limitations.

Bennett filed a motion for summary judgment to dismiss Dalton's cross claim on the grounds that it was barred by the statute of limitations.¹ The trial court granted Bennett summary judgment and dismissed Dalton's cross claim.² On Dalton's motion for reconsideration the trial court vacated its order of dismissal and reinstated Dalton's cross claim against Bennett. We granted Bennett's motion for discretionary review.

Discussion

Bennett contends the trial court erred when it concluded that Rieger's timely commencement of her personal injury lawsuit against Dalton and Bennett tolled the statute of limitations on Dalton's separate claim for personal injuries against Bennett. Bennett argues that no Washington court rule, case or statute permits a defendant to rely on a plaintiff to toll the statute of limitations on a defendant's independent claim for relief against a codefendant. He contends the majority of cases from other jurisdictions that have considered this question support his position. He further contends the few jurisdictions that toll an independent cross claim upon commencement of the original action do so on the basis of a statute.

Dalton admits she did not file her personal injury claim against Bennett until after the three-year statute of limitations had run,³ but argues that under CR 13(g) and the Supreme Court's decision in the J.R. Simplot Co. v. Vogt, 93 Wash.2d 122, 605 P.2d 1267 (1980), when a plaintiff files a complaint, the statute of limitations is tolled with respect to all counterclaims and cross claims. Alternatively, Dalton argues that even if Simplot applies only to counterclaims, as a matter of policy the same result should be reached for cross claims. Dalton also argues that under the language of RCW 4.16.170 her claim was tolled.

This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court. Ellis v. City of Seattle, 142 Wash.2d 450, 458, 13 P.3d 1065 (2000). Summary judgment is proper if the court, viewing all facts and reasonable inferences in the light most favorable to the non-moving party, finds no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56; Ellis, 142 Wash.2d at 458, 13 P.3d 1065. This court reviews the trial court's interpretation of a statute and a court rule de novo. Rettkowski v. Dep't. of Ecology, 128 Wash.2d 508, 519, 910 P.2d 462 (1996); Case v. Dundom, 115 Wash.App. 199, 201, 58 P.3d 919 (2002).

Dalton filed her claim for personal injuries against Bennett under CR 13(g). CR 13(g) permits the assertion of cross claims against a coparty and is liberally construed in order to resolve as many related claims as possible in a single action. Schoeman v. New York Life Ins. Co., 106 Wash.2d 855, 726 P.2d 1 (1986).

CR 13(g) provides:

Cross Claim Against Coparty. A pleading may state as a cross claim any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross claim may include a claim that the party against whom it is asserted is or may be liable to the cross claimant for all or part of a claim asserted in the action against the cross claimant.

Under CR 13(g), the assertion of a cross claim is permissive. Krikava v. Webber, 43 Wash.App. 217, 220, 716 P.2d 916 (1986); see also cases cited therein. CR 13(g) authorizes certain claims to be made as cross claims against a coparty. But it does not prescribe a time within which a party must file a cross claim. CR 13 is a pleading rule; it does not address the statute of limitations for filing a counterclaim or a cross claim.

Relying on Simplot, Dalton argues that once Rieger timely filed her complaint for negligence and personal injury, the statute of limitations with respect to all counterclaims and cross claims was tolled. The issue in Simplot was whether the codefendant asserting a lien had to commence his lien foreclosure by filling an answer, counterclaim or cross claim within the statutory period or whether his rights were preserved by the plaintiff joining him as a party. In Simplot, the plaintiff Simplot sold goods to defendant Vogt. Vogt gave Simplot a security interest in his potato crop. Meanwhile, Bates sold seed to Vogt and obtained a lien against the same potato crop. When Vogt defaulted on its payments to Simplot, Simplot commenced an action against Vogt to foreclose his security interest in the potato crop. Simplot named Bates as a defendant in that lawsuit. Bates filed an "answer, cross claim and counterclaim," seeking to foreclose his seed lien in the same potato crop.⁴ Under the lien statute, Bates was required to enforce the seed lien within six months of the crop harvest. Simplot moved for summary judgment, arguing that Bates failed to timely enforce his lien because he did not file his answer, cross claim and counterclaim within the statutory six months. The Supreme Court disagreed:

What is material is that plaintiff in its actions to foreclose its security interest ... did join Bates and thus of its own volition commenced the action which gave rise to the question regarding the lien rights of Bates....

Even though Bates did not file his answer, cross claim or counterclaim until well after the 6-month period, the rule in this state and in the majority of jurisdictions is that, if a counterclaim is not barred by the statute of limitations at the commencement of the action in which it was pleaded (the situation here), it does not become barred even though the full statutory period expires during the pendency of the action. The rights of Bates were preserved by the action of plaintiff in joining him as a party; his seed lien is not expired.

Simplot, 93 Wash.2d at 125-26, 605 P.2d 1267.

Two subsequent lien cases, Pearl v. Greenlee, 76 Wash.App. 338, 887 P.2d 405 (1994), and Michel v. Melgren, 70 Wash.App. 373, 853 P.2d 940 (1993), relied on Simplot. In Pearl, the plaintiff filed an action to recover settlement funds in his attorney's trust account, naming as defendants the attorney and a physician who had asserted a lien against the settlement funds. At the plaintiff's request, the attorney placed the settlement fund proceeds...