Diversified Industries Development Corp. v. Ripley

Citation514 P.2d 137,82 Wn.2d 811
Decision Date27 September 1973
Docket NumberNo. 42498,42498
CourtUnited States State Supreme Court of Washington

Davies, Pearson, Anderson, & Gadbow, Wayne J. Davies, Seattle, for appellants.

Horswill, Keller, Rohrback, Waldo & Moren, Burt Waldo, Seattle, for respondent.

HAMILTON, Associate Justice.

This is a declaratory judgment proceeding. Respondent, Diversified Industries Development Corporation, the owner and lessor of the residential property here involved, initiated the action against appellants, Bruce and Doris Ripley, month-to-month tenants in the residential unit, and their liability insurer, Ohio Casualty Insurance Company. Respondent prayed for an adjudication of potential financial responsibility as between respondent and its insurer, and appellants, in connection with an accident and injuries occurring on the residential premises to a social guest of the Ripleys. Appellants appeal from an adverse judgment.

The facts are stipulated. Briefly, and so far as relevant to our disposition of the cause, they are as follows:

On June 1, 1969, Mr. and Mrs. Ripley rented a residence from respondent under a written month-to-month rental agreement. Employees of respondent, in preparing the premises for the Ripleys' occupancy, discovered that a wagon wheel mounted upon and cemented to a stone fence had fallen from its mounting. They replaced the wheel in its mounting but did not otherwise secure it to the fence. The Ripleys were not advised of this condition by respondent and did not otherwise know of it.

On July 19, 1969, Mr. and Mrs. Bradley Martin and their 4-year-old daughter were social guests of the Ripleys. During this visit, the wagon wheel became dislodged and fell upon the minor child thereby injuring her. The insurers of the respective parties, I.e., the Ripleys and respondent, under medical coverage provisions of each policy, made payments to the Martins, and their respective adjusters maintained contacts with the Martins until March, 1970, when the Martins moved to the state of Michigan. No further written claim, or demand, for or on behalf of the minor has been made; however, due to the age of the child, the statute of limitations will be tolled for an extended period of time. RCW 4.16.190.

The month-to-month rental agreement contained, among other provisions, the following 4. Tenant agrees . . . that Owner shall not be held liable for any damage to person or property of Tenant, his guests, or any member of his family, by reason of any condition of the premises, and agrees to hold Owner harmless from any claims for damage to persons or property asserted by any person whomsoever, arising out of condition of said premises or Tenant's occupancy.

Respondent alleged and contended that the foregoing provision of the rental agreement imposed responsibility for any claim of damages by or on behalf of the injured minor upon appellants, and that the continuing risk or hazard of such a claim, coupled with appellants' refusal to accept responsibility therefor, generated a justiciable controversy between the parties. Appellants, in response, maintained that, because no claim or suit for damages had been forthcoming on behalf of the injured minor, the action was devoid of a justiciable dispute, thus precluding declaratory relief, and alternatively asserted the cited provision of the rental agreement was exculpatory in nature, contrary to public policy, and void.

The trial court held a justiciable controversy existed between the parties, and so construed the cited provision of the rental agreement as to place upon appellants the ultimate financial responsibility for any claim of damages which might arise on behalf of the injured minor.

On appeal, appellants, in essence, contend the trial court erred in concluding that a justiciable controversy presently existed and/or in refusing to void the contractual provision in issue.

We agree with appellants' assertion that no justiciable controversy currently exists between the parties and that declaratory relief is presently premature.

The trial court predicated its conclusion that there existed a justiciable controversy upon the following finding:


That the parties hereto and their insurers face the possibility of demand or claim from the minor, Sherry Anne Martin, on which the Statute of Limitations will not run for approximately twenty years. That the parties' rights under the Month to Month Rental Agreement should be construed at this time so that the parties will know the risks that they face and prepare accordingly. That the proceedings herein are adversary in character and the controversy is one upon which a judgment of this court will control.

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    ...UDJA, and the State cross-appealed the superior court's decision, we must consider this issue first. Diversified Indus. Dev. Corp. v. Ripley , 82 Wash.2d 811, 814-15, 514 P.2d 137 (1973) ; Burman v. State , 50 Wash. App. 433, 439, 749 P.2d 708 (1988). ¶10 In this case, Stevens County has fi......
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