El Coba Co. Dormitories, Inc. v. Franklin County Public Utility Dist.
| Decision Date | 06 December 1972 |
| Docket Number | R,Nos. 599--II,No. 77,607--III,77,s. 599--II |
| Citation | 503 P.2d 1082,8 Wn.App. 28 |
| Court | Washington Court of Appeals |
| Parties | , 82 L.R.R.M. (BNA) 2524, 70 Lab.Cas. P 52,976 EL COBA COMPANY DORMITORIES, INC., a Washington corporation, Appellant, v. FRANKLIN COUNTY PUBLIC UTILITY DISTRICT and International Brotherhood of Electric Workers, Localespondents. EL COBA COMPANY DORMITORIES, INC., a Washington corporation, Appellant, v. FRANKLIN COUNTY PUBLIC UTILITY DISTRICT, Respondent and Appellant, International Brotherhood of Electrical Workers, Localespondent. |
D. Wayne Campbell, of Campbell & Johnston, Pasco, for appellant El Coba Dormitories, Inc.
John G. Schultz, of Leavy, Taber, Schultz & Bergdahl, Pasco, for appellant Franklin County PUD.
John G. Schultz of Leavy, Taber, Schultz & Bergdahl, Pasco, for respondent Franklin County PUD.
David E. Williams, of Critchlow, Williams, Ryals & Schuster, Richland, for respondent Local Union 77, IBEW.
Plaintiff appeals from an order granting defendant Franklin County Public Utility District's (PUD) motion for summary judgment and granting defendant International Brotherhood of Electrical Workers, Local No. 77's (IBEW) motion to dismiss.
In the summer of 1968, plaintiff commenced construction of a dormitory in Pasco, Washington. Temporary electrical service for the dormitory was provided by the PUD in late July 1968. On October 29, 1968, plaintiff requested permanent electrical service. The PUD issued a work order to its employees to install this permanent service.
At this time plaintiff was being picketed by organized building trade unions because of their use of nonunion labor on this project. This dispute was known to all the parties herein. Although IBEW was not involved in the dispute, its employees refused to cross the picket line and, as a consequence, refused to install permanent service to the construction project. Whether the business agent of IBEW told its members not to cross the picket line is disputed.
Plaintiff instituted action against the PUD and IBEW, alleging the PUD had breached its contract to provide permanent electrical service within a reasonable time, and alleging IBEW had tortiously interfered with the contract between plaintiff and the PUD. The PUD answered, denying the breach and affirmatively pled plaintiff had not filed a proper claim against it (RCW 54.16.110). The PUD also cross claimed against IBEW seeking indemnity alleging the union was responsible for any damage plaintiff might recover against the PUD.
IBEW did not answer the complaint, but moved to dismiss plaintiff's claim alleging plaintiff's remedy against IBEW was exclusively vested with the National Labor Relations Board. The PUD moved for summary judgment based on its affirmative defense. The trial court granted both motions; plaintiff appeals.
First, we must determine whether plaintiff was required to file a claim with the PUD prior to instituting this action. We conclude no such claim need be filed where the underlying basis is breach of contract.
RCW 54.16.110 provides:
A district may sue in any court of competent jurisdiction, and may be sued in the county in which it is located. No suit for damages shall be maintained against a district except on a claim filed with the commission complying in all respects with the terms and requirements for claims for damages filed against cities of the second class.
(Laws of 1955, ch. 390, § 12.)
In 1957 the legislature passed the following statutes:
53.52.010 'District' defined. As used in RCW 53.52.020 the term 'district' includes all municipal corporations having a governing body, such as port, school, independent highway, water, fire protection, sewer, Public utility, and all other districts of similar organization but does not include any city, town, county, or township.
53.52.020 Claims for damages against districts. All claims for damages against any district as defined in RCW 53.52.010 must be presented to the government body of such district and filed with the clerk or proper officer thereof within one year from the date the damage occurred or the injury was sustained or such claim shall be disallowed.
1 Nothing in the 1957 enactment specifically repealed or amended RCW 54.16.110. That portion of RCW 54.16.110, however, relating to filing of claims against public utility districts must be deemed to have been impliedly repealed by the 1957 enactment. In In re Chi-Dooh Li, 79 Wash.2d 561, 563, 488 P.2d 259, 261 (1971), the court stated:
In a long line of cases we have held that a statute is impliedly repealed by a later legislative enactment if certain conditions are present in the later enactment. The conditions are (1) the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede prior legislation on the subject; or (2) the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot be reconciled and both given effect by a fair and reasonable construction.
Cf. State v. Adams, 76 Wash.2d 650, 675, 458 P.2d 558 (1969); Copeland Lumber Co. v. Wilkins, 75 Wash.2d 940, 454 P.2d 821 (1969); Washington State Bd. Against Discrimination v. Board of Directors, 68 Wash.2d 262, 273, 412 P.2d 769 (1966) and cases cited therein. We find, without considering the first rule above, that the second rule applies; namely, that RCW 54.16.110 and RCW 53.52.010--.020 are clearly inconsistent with, and repugnant to, each other.
RCW 54.16.110 requires the procedure for filing claims against a PUD shall be the same as that specified for second-class cities. That procedure is set forth in RCW 35.23.340 and RCW 35.31.040. Subsequently, RCW 53.52 was enacted, specifically including public utility districts. This legislation further specified the time limit within which a claim may be filed and the person with whom a claim should be filed. The time for such filing was extended from 90 days, established for second-class cities, to a 1-year limitation for those 'districts' which are specifically enumerated in RCW 53.52.010. By so doing, the legislature impliedly repealed that portion of RCW 54.16.110, which provided the procedure for filing claims against the PUD.
The matter did not end there. By Laws of 1967, ch. 164, § 16, the legislature specifically repealed RCW 53.52.010 and .020. Section 1 thereof specifically states the legislative intent to waive governmental immunity for tort claims against any state government agency or its subdivisions. Section 4 thereof sets forth the provision for the presentment and filing of claims against governmental entities. These sections have been codified in RCW 4.96.010 and .020. 2 The legislature is presumed to be cognizant of the judicial interpretation of statutes. Graffell v. Honeysuckle, 30 Wash.2d 390, 191 P.2d 858 (1948). In 1967, when the legislature passed chapter 164, it is presumed to have known that the Supreme Court had interpreted the word 'damages' as used in prior claim statutes to include claims based upon tort and contract. Puget Constr. Co. v. Pierce County, 64 Wash.2d 453, 392 P.2d 227 (1964).
In Graffell v. Honeysuckle, Supra, at 399, 191 P.2d at 863, the court stated:
In construing statutes which re-enact, with certain changes, or repeal other statutes, or which contain revisions or codification of earlier laws, resort to repealed and superseded statutes may be had, and is of great importance, in ascertaining the intention of the legislature, for, where a material change is made in the wording of a statute, a change in legislative purpose must be presumed.
The legislative enactment of 1967, Supra requiring the filing of claims against various political subdivisions, arising from tortious conduct only, constituted a material change from previous claim statutes. This leads us to conclude that the legislature intended to eliminate the necessity for filing claims which have as their basis anything other than tortious conduct. 3 Consequently, plaintiff's claim against the PUD, being based upon a contract, was not required to be filed with the PUD prior to commencement of the action in the Superior Court.
Lastly, plaintiff contends the trial court erred in granting IBEW's motion to dismiss. We agree.
In San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) the court held the National Labor Relations Act preempts the jurisdiction of state and federal courts to regulate conduct 'arguably subject to section 7 or 8 of the Act.' This holding was reaffirmed, with an intent to clarify the preemption principle, in Amalgamated Ass'n of Street Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971). However, both Garmon and Lockridge emphasize that the exercise of judicial power over conduct arguably protected or prohibited by the NLRA is permitted where Congress has affirmatively indicated that such power should exist. 29 U.S.C.A. § 187 at 249 states as follows:
(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b)(4) of this title.
(b) Whoever shall be injured in his business or property by reason or any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit.
This section allows commencement of a suit for damages for alleged violation of section 158(b)(4) prior to a NLRB unfair labor practice ruling on...
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Postema v. Snohomish County
...of legislation by the repeal of repealing legislation. As explained by the Court of Appeals in El Coba Co. Dormitories, Inc. v. Franklin Cy. PUD, 8 Wash.App. 28, 33 n. 3, 503 P.2d 1082 (1972), "in this complicated modern age [revival] would place too great a burden upon the legislature to s......
- El Coba Co. Dormitories, Inc. v. Franklin County Public Utility Dist.