Geschwind v. Flanagan
| Decision Date | 20 April 1992 |
| Docket Number | No. 26377-3-I,26377-3-I |
| Citation | 828 P.2d 603,65 Wn.App. 207 |
| Court | Washington Court of Appeals |
| Parties | Timothy J. GESCHWIND, SR., Appellant, v. Michael FLANAGAN and Jane Doe Flanagan, husband and wife, and the marital community composed thereof, and Richard Roe Flanagan and Jane Doe Flanagan, husband and wife, and the marital community composed thereof, and Michael J. Flanagan as personal representative of the Estate of Timothy J. Flanagan, Jr., deceased, d/b/a Flanagan Woodworks, Defendants, Jane SEYMOUR, as Personal Representative of the Estate of Timothy J. Flanagan, Jr., deceased, Respondent. |
K.R. St. Clair; William H. Nielsen, McIntosh, Lewis, Evans & Nielsen, Mount Vernon, for appellant.
Hal Thurston and Simonarson, Visser, Zender & Thurston, Bellingham; Lawrence L. Shafer and Shafer, Moen & Bryan, Langley, for respondent.
Timothy J. Geschwind, Sr. appeals from a judgment on a verdict denying him recovery for injuries sustained in an automobile accident. He contends the tort reform act should not have applied to this case, and that the trial court erred in: (1) submitting the issue of his contributory negligence to the jury; (2) refusing to rule as a matter of law that he could not be found more than 50 percent at fault; and (3) refusing to instruct the jury that certain material exhibited during respondent's closing argument was not in evidence.
Respondent Jane Seymour, as personal representative of the estate of Timothy J. Flanagan, Jr., deceased, cross-appeals, alleging the trial court erred in refusing to dismiss the action for failure of Geschwind to serve a creditor's claim against her predecessor within the statute of limitations.
In October 1984 appellant and Timothy Flanagan went drinking at a number of establishments, after which Flanagan drove his vehicle into a one-car accident. Flanagan was killed and appellant suffered serious injuries. Appellant, the passenger, was asleep at the time of the crash. Decedent's blood alcohol level was .38 and appellant's was .17.
Appellant filed suit 2 days before the effective date of the tort reform act, Chapter 305, Laws of 1986. Decedent's brother, Michael Flanagan, was named a defendant in his individual capacity, but not as personal representative of the estate. The unknown personal representative of the estate was also named. In fact, no personal representative had been appointed.
A year later appellant's new counsel discovered that no personal representative had been appointed. He obtained defense counsel's agreement to the appointment of Michael Flanagan and to his addition as a party defendant in a representative capacity. A first amended complaint was then filed naming Michael Flanagan as personal representative of the estate; however, Michael Flanagan did not immediately post a bond and did not receive his letters of administration until March 30, 1989. Appellant filed a creditor's claim against the estate the next day. In February 1990 attorney Jane Seymour, respondent herein, was substituted as personal representative of the estate.
The trial court made several pretrial rulings at issue in this appeal. First, the court refused to dismiss the action for failure to serve a creditor's claim on the personal representative within the 3-year statute of limitations. Second, the court ruled that the amended complaint adding Michael Flanagan in a representative capacity did not relate back to the date the original complaint was filed; thus, the tort reform act applied to the case. Finally, the court refused to rule as a matter of law that appellant could not be found more than 50 percent at fault in causing his damages.
Over appellant's objections, the court submitted the issue of contributory negligence to the jury. The jury found appellant 70 percent contributorily negligent. He was denied recovery under a provision of the tort reform act that bars recovery to an intoxicated party who is more than 50 percent at fault. RCW 5.40.060. The court denied appellant's motion for a JNOV or new trial, and this appeal followed. Respondent cross-appealed on the issue of whether a creditor's claim had been timely filed.
Appellant argued below that his amended complaint related back to the original complaint by virtue of CR 15, so that the tort reform act did not apply to the case. The trial court ruled against appellant on this point and appellant has expressly abandoned the CR 15 argument in his brief on appeal. Instead, he relies on CR 9(a) and 17(a) to establish relation back.
As a general rule, an appellate court will not consider arguments raised for the first time on appeal. See Smith v. Shannon, 100 Wash.2d 26, 37, 666 P.2d 351 (1983); RAP 2.5(a). However, because a new trial is required for other reasons, we address the merits of appellant's argument to provide guidance to the trial court on remand.
CR 9(a) 1 provides that a party desiring to raise an issue as to the authority of a party to be sued in a representative capacity shall do so by specific negative averment with supporting particulars. Appellant claims this rule applies, and since no specific negative averment was made, any challenge to Michael Flanagan's capacity to be sued has been waived.
Appellant is mistaken in his premise that CR 9(a) applies to the facts of this case. Neither respondent nor her predecessor ever challenged the capacity of Michael Flanagan to be sued as personal representative of the estate. In fact, Flanagan stipulated to his own appointment as personal representative and to the amendment of the complaint adding him as a party defendant in that capacity. Respondent's argument that the amendment does not relate back to the original filing date does not "raise an issue as to ... the authority of a party to ... be sued in a representative capacity", and therefore CR 9(a) does not apply.
Likewise, CR 17(a), concerning identification of real parties in interest, is inapplicable. 2 That rule relates to the identification of plaintiffs, not defendants. 3A Orland, Wash.Prac., Real Party in Interest § 5201, at 323. The text of the rule refers to the prosecution, commencement and bringing of actions, making it clear that it applies only to plaintiffs. The purpose of the rule is " 'simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata.' " (Emphasis added.) Rinke v. Johns-Manville Corp., 47 Wash.App. 222, 227, 734 P.2d 533, review denied, 108 Wash.2d 1026 (1987) ().
Since neither of the rules cited by appellant would allow the relation back of the amended complaint to the filing date of the original complaint, we conclude, as did the trial court, that the tort reform act applies to this case.
Appellant next contends there was insufficient evidence to submit the issue of his contributory negligence to the jury. This contention is completely without merit. Appellant testified that he watched Flanagan consume alcoholic beverages at each of five locations over the course of 6 hours. The drinks included several very strong mixed drinks. Appellant testified that upon leaving the last of the locations, Flanagan bumped the cars in front and behind him, causing appellant to ask if he (appellant) could take over driving. Appellant admitted on cross examination that he knew it was unsafe to ride with Flanagan.
A toxicologist testified that at Flanagan's blood alcohol level of .38, most people would be unconscious and the remainder would be obviously drunk, regardless of individual tolerance levels.
We find there was sufficient evidence to submit the issue of appellant's contributory negligence to the jury, and the trial court did not err in doing so. The numerous cases cited by appellant are factually distinguishable.
RCW 5.40.060, 3 part of the tort reform act, bars a litigant from recovering damages for an injury if: (1) he or she was under the influence of alcohol or any drug at the time of the occurrence causing the injury; (2) such condition was a proximate cause of the injury; and (3) the trier of fact finds that he or she was more than 50 percent at fault.
Appellant argues that it is logically and legally impossible for a passenger who does not interfere with the driving of a vehicle to be more than 50 percent at fault in causing an accident. He argues that RCW 5.40.060 was intended to bar recovery by a driver or pedestrian whose intoxication was the main cause of an accident or injury, and was not intended to bar recovery by a passive passenger. Respondent counters that the issue is not whether the passenger was liable for causing the accident, but whether he was liable for causing his own injuries. This question presents an issue of first impression.
Under the facts of this case we find appellant's argument persuasive. Respondent's attempted distinction between causation of the "injuries" and causation of the "accident" fails here, because all of appellant's injuries resulted from a single accident. 4
Respondent's attempted distinction appears to be a statement of "but for" causation in another guise: but for appellant's negligence in riding with an intoxicated driver he would have suffered no injuries, so that in one sense he is 100 percent responsible for his injuries. However, "but for" causation merely establishes that appellant's negligence was a cause in fact of his damages; it does not establish the percentage of fault attributable to it, as compared with other causes.
We must not lose sight of the fact that the negligence of the parties here must be compared, and that the resulting allocation of fault cannot exceed 100 percent. While the jury apparently found appellant highly...
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Waddoups v. Nationwide Life Insurance Co.
... ... for other reasons and addressing the merits of the argument ... will provide guidance to the trial court on remand ... Geschwind v. Flanagan, 65 Wn.App. 207, 211, 828 P.2d ... 603 (1992) aff'd in part, rev'd in part, 121 ... Wn.2d 833, 854 P.2d 1061 (1993). We ... ...
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Waddoups v. Nationwide Life Ins. Co.
...for other reasons and addressing the merits of the argument will provide guidance to the trial court on remand. Geschwind v. Flanagan, 65 Wn. App. 207, 211, 828 P.2d 603 (1992) aff'd in part, rev'd in part, 121 Wn.2d 833, 854 P.2d 1061 (1993). We may and should similarly address an issue fu......
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Geschwind v. Flanagan
...than the intoxicated driver who had the primary responsibility for reasonably safe operation of the vehicle." Geschwind v. Flanagan, 65 Wash.App. 207, 214, 828 P.2d 603 (1992). This court accepted the petition for review. Generally, the issue of contributory negligence is one for the jury. ......
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Young v. Estate of Snell By and Through Platis
...the statute...."6 Three years prior to its decision in Augustson, Division One of the Court of Appeals decided Geschwind v. Flanagan, 65 Wash.App. 207, 828 P.2d 603 (1992), aff'd in part, rev'd in part, 121 Wash.2d 833, 854 P.2d 1061 (1993). It held there that "[t]he time period for filing ......
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Interpretation of the Statutory Modification of Joint and Several Liability: Resisting the Deconstruction of Tort Reform
...Partial Rejection, supra note 2, at 248. 237. Wash. Rev. Code § 4.22.070(1) (1991). 238. E.g., Geschwind v. Flanagan, 65 Wash. App. 207, 828 P.2d 603 (1992) (passenger who watched driver consume numerous alcoholic drinks and bump cars in front and behind as they left the last location was c......
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§9.6 Analysis
...to include "such supporting particulars as are peculiarly within the pleaders [sic] knowledge." CR 9(a); see Geschwind v. Flanagan, 65 Wn.App. 207, 211, 828 P.2d 603 (1992), aff'd in part, rev'd in part, 121 Wn.2d 833 (1993) ("CR 9(a) provides that a party desiring to raise an issue as to t......
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§17.6 Analysis
...not defendants, the relation-back provision does not apply when a complaint is amended to add a proper defendant. Geschwind v. Flanagan, 65 Wn.App. 207, 210, 828 P.2d 603 (1992), aff'd in rev'd in part on other grounds, 121 Wn.2d 833,854 P.2d 1061 (1993). Although Ninth Circuit courts still......
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§17.7 Significant Authorities
...CR 17(a) is not available when the complaint is amended to add a proper defendant rather than a proper plaintiff. Geschwind v. Flanagan, 65 Wn.App. 207, 210, 828 P.2d 603 (1992), aff'd in part, rev'd in part on other grounds, 121 Wn.2d 833, 854 P.2d 1061 The addition of a real party in inte......