Brown v. Spokane County Fire Protection Dist. No. 1
| Decision Date | 16 November 1978 |
| Docket Number | No. 2761-III,2761-III |
| Citation | 586 P.2d 1207,21 Wn.App. 886 |
| Parties | Thomas H. BROWN, as Personal Representative of the Estate of Susan Marie Holmes, Respondent, v. SPOKANE COUNTY FIRE PROTECTION DISTRICT NO. 1, Appellant, and Victor Holmes, a single man, Respondent. |
| Court | Washington Court of Appeals |
Hemovich, Smith & Nappi, Joseph P. Nappi, Jr., Michael J. Hemovich, Spokane, for appellant.
Powell & Harnetiaux, Bryan P. Harnetiaux, Malott, Southwell & O'Rourke, Dan O'Rourke, Spokane, for respondents.
This suit began as a wrongful death action. The Spokane County Fire Protection District No. 1 (Fire District) appeals from a summary judgment dismissal of its third party complaint against Victor Holmes, husband of the deceased, Susan Marie Holmes, in which it sought to apportion any damages to be recovered in connection with the wrongful death action brought by her estate.
In April, 1976, while responding to an emergency call, a fire truck collided with a Model A Ford at an intersection in Spokane. Susan Marie Holmes, a passenger in the Model A driven by her husband, Victor, suffered fatal injuries. Considerable damage to the fire truck resulted as well.
Respondent, Thomas Brown, as personal representative of the estate, commenced a wrongful death action against the Fire District approximately 1 year following the accident. As an affirmative defense, the Fire District responded that the negligence of Mr. and Mrs. Holmes was the proximate cause of the accident. The Fire District, by third party complaint, also sought to implead Mr. Holmes in an effort to establish a right of contribution. In addition, the Fire District sought $28,421 in property damage to the fire truck for which Victor Holmes was alleged to be responsible. The Fire District did not file a claim in the estate of Mrs. Holmes.
Following a dismissal of the third party complaint, the Fire District appeals. The trial court held that the defendant was precluded from bringing an action against Mr. Holmes because of its failure to file a claim in the estate of his deceased wife. The court reasoned that the primary fund community assets must be exhausted before proceeding to a secondary fund separate assets of Victor Holmes.
Initially, we must answer the following question: If an accident may result in both community and separate liability for the surviving spouse, does the failure to filed a claim in the estate of a deceased spouse bar a subsequent action against the surviving spouse based on his separate liability?
It follows without citation that a spouse is always separately liable for his own tort, just as a contracting spouse incurs separate liability by entering into a contract. Usually, however, the important question is whether the acts of one spouse result in the creation of community liability as well. Cross, Community Property, 49 Wash.L.Rev. 729, 820, 834 (1974). A spouse can bind the community and create community liability under the doctrine of respondeat superior. Aichlmayr v. Lynch, 6 Wash.App. 434, 435, 493 P.2d 1026 (1972). In order to establish community liability, the tortious act of a spouse must have been committed for the benefit of the marital community, or in the course of managing community property. Benson v. Bush,3 Wash.App. 777, 778, 477 P.2d 929 (1970).
Prof. Harry M. Cross summarizes the effect of death on tort liability as follows:
If the decedent is separately liable on a claim, such a claim may be barred, as may a community liability, by failure to timely file within the probate nonclaim statute.
If the surviving spouse is separately liable on a claim, the creditor does not have a claim recognizable in the administration of the community estate, and therefore need not file any probate claim. The creditor subsequently may reach any assets formerly community property which become the separate property of the debtor-survivor. This last proposition has also been applied even though the creditor's claim was one which could have been enforced against either the survivor's separate property or the community property, but was not asserted in the administration of the community estate occasioned by the death of the other spouse.
(Italics ours.) Cross, Community Property, 49 Wash.L.Rev. 729, 842 (1974). 1
Graham v. Radford, 71 Wash.2d 752, 431 P.2d 193 (1967), and Ruth v. Dight, 75 Wash.2d 660, 453 P.2d 631 (1969), relied upon by the respondents, are distinguishable. Those cases involved unsuccessful attempts to hold a surviving spouse liable when a community creditor had failed to establish his claim against the community by filing under the nonclaim statute in the deceased spouse's estate. If a community creditor fails to perfect his rights against the community assets the primary fund those rights are lost and the court will not allow him to achieve the same result indirectly by going against the surviving spouse's assets the secondary fund When there is no separate liability on the part of that spouse. The instant case is the reverse, factually, of Graham and Ruth. Here, the surviving spouse is separately and primarily liable as the tort-feasor. See Rolph v. McGowan, 20 Wash.App. 251, 255, 579 P.2d 1011 (1978). The liability of the community is derivative under the theory of respondeat superior. Aichlmayr v. Lynch, supra, 6 Wash.App. at 435, 493 P.2d 1026. Thus, while the Fire District could have filed a claim in the estate of Mrs. Holmes, failure to do so did not bar its claim against Mr. Holmes based on his separate liability. 2
The purpose of the probate nonclaim statute, RCW 11.40.010, 3 is to facilitate the timely probate of estates. Its purpose is not to absolve a surviving spouse from tort liability. Finally, it would be a denial of equal protection to apply a 4-month statute of limitations with respect to Mr. Holmes as the surviving spouse-tort-feasor and a 3-year limitation period with respect to all other tort-feasors. See Hunter v. North Mason School Dist., 85 Wash.2d 810, 813, 539 P.2d 845 (1975).
The Fire District invites this court to abandon the common law rule against contribution between joint tort-feasors, and argues that liability between concurrent joint tort- feasors should be apportioned according to their respective degrees of negligence. Here, the Fire District seeks to obtain contribution from Mr. Holmes based on his alleged negligence in connection with the collision. Recently Wenatchee Wenoka v. Krack Corp., 89 Wash.2d 847, 576 P.2d 388 (1978), upheld the common law rule against contribution. The court did indicate its willingness to reconsider this question in the future; however, in this instance we feel that any modification of this rule must come from the Supreme Court.
The Fire District also argues that Civil Rule 14 gives it the right to insist that Mr. Holmes be brought in as a third party defendant. There are two reasons why this argument must fail. First, there is the policy of CR 14. Secondly, the requirements of the rule have not been satisfied.
CR 14 provides in pertinent part:
(a) At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him (defendant-third party plaintiff) for all or part of the plaintiff's claim against him.
The policy behind CR 14(a) has been described as follows:
(It) is an important procedural reform the purpose of which is to avoid delay and needless multiplicity of actions. The rule should be liberally construed . . . but not where its effect is to change the cause of action as asserted, or to substitute another cause of action for it, so as to require plaintiff, against his will, to litigate against third party defendants an alleged tort liability which plaintiff has not asserted in his complaint. While there is conflict in the decisions, the weight of authority is to the effect that a defendant cannot compel the plaintiff, who has sued him, to sue also a third party whom he does not wish to sue.
(Italics ours.) Baltimore & Ohio R.R. v. Saunders, 159 F.2d 481, 484 (4th Cir. 1947). 4
The principle behind CR 14 was also persuasively explained in Spring Hill Dairy Co. v. Elswick, 20 F.R.D. 397, 399 (E.D.Ky.1957):
According to the weight of authority a defendant cannot compel the plaintiff, who has sued him, to sue a third party. The plaintiff has selected his forum and proceeded against the defendant and is entitled to prosecute his cause unhampered by collateral matters or controversies which the defendant may have with another who may have been liable to the plaintiff but whom the plaintiff, in his discretion, decided not to sue.
The policy of CR 14(a) is consistent with the concepts of concurrent tort-feasors and joint and several liability. In this action, which involves a two-party collision, Mr. Holmes and the Fire District may be concurrent tort-feasors in relation to the estate. Concurrent tort-feasors may be defined as two or more defendants whose independent acts of negligence have concurred to produce the proximate cause of an injury to a third person. Litts v. Pierce County, 5 Wash.App. 531, 537, 488 P.2d 785 (1971). When there is a single indivisible harm sustained as a result of an independent, separate, but concurring tortious act of two or more persons, the courts impose joint and several liability for the damage caused by such wrong. Rauscher v. Halstead, 16 Wash.App. 599, 601, 557 P.2d 1324 (1976). With joint and several liability, each concurrent tort-feasor is liable as if solely responsible for the injury caused by the concurrent acts of negligence. Litts v. Pierce County, supra 5 Wash.App. at 537, 488 P.2d 785. When each concurrent tort-feasor is treated as if solely responsible for the injury, joinder is permitted but not compelled; and the concurrent tort- feasor who is sued for the joint tort has no right to compel the...
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