Hall by Hall v. Niemer

• Decision Date: 01 July 1982
• Docket Number: 48181-4 and 48279-9,Nos. 47251-3,s. 47251-3
• Citation: 649 P.2d 98,97 Wn.2d 574
• Parties: Shawn HALL, by his Guardian ad Litem, Jo Anne HALL, and Jo Anne Hall, in her own right, Petitioner, v. Philip NIEMER and Jane Doe Niemer, and the marital community composed thereof, Defendants, Whatcom County, a subdivision of the State of Washington, Respondent. Ronald GATES, Respondent, v. Robert ROSEN, Jack Davis, and Johan F. DeLeeuw and Virginia DeLeeuw, individually and as husband and wife, Defendants, The City of Seattle, Petitioner. Dorton C. CAMPBELL and Evelyn M. Campbell, husband and wife, Petitioners, v. THUNDERBIRD TRUCKING AND CONSTRUCTION, INC., a Washington corporation, Defendant, Yakima County, Washington, Respondent.
• Court: Washington Supreme Court

Page 574

97 Wn.2d 574

649 P.2d 98

Shawn HALL, by his Guardian ad Litem, Jo Anne HALL, and Jo

Anne Hall, in her own right, Petitioner, v. Philip NIEMER and Jane Doe Niemer, and the marital community

composed thereof, Defendants,

Whatcom County, a subdivision of the State of Washington,

Respondent.

Ronald GATES, Respondent, v. Robert ROSEN, Jack Davis, and Johan F. DeLeeuw and Virginia

DeLeeuw, individually and as husband and wife, Defendants,

The City of Seattle, Petitioner.

Dorton C. CAMPBELL and Evelyn M. Campbell, husband and wife, Petitioners, v. THUNDERBIRD TRUCKING AND CONSTRUCTION, INC., a Washington

corporation, Defendant,

Yakima County, Washington, Respondent.

Nos. 47251-3, 48181-4 and 48279-9.

Supreme Court of Washington, En Banc.

July 1, 1982.

Philip Mortensen, Seattle, David K. Crossland, Yakima, for petitioners.

William Johnston, Gene R. Moses, John C. Belcher, James P. Thompson, Bellingham, Rick L. Hoffman, Yakima, Robert M. Keefe, Seattle, Patrick Andreotti, Yakima UTTER, Judge.

for respondents.

These three consolidated cases present the same issue: the severability of valid from invalid sections of tort claim filing requirements in laws relating to various political subdivisions of the State. Hall and Campbell involve the tort claim filing provisions of RCW 36.45 and Gates involves the tort claim filing provisions of Seattle City Charter article 4, section 24 (based on RCW 35.31). ¹ We hold the valid aspects of these laws are inseparable from the sections we have already held unconstitutional. For this reason, we need not reach the secondary issues raised by the various litigants.

FACTS

Hall : On January 11, 1977, a car driven by Philip Niemer crossed the center line and collided head on with a car driven by petitioner Jo Anne Hall and in which petitioner Shawn Hall (11 years old) was a passenger. It had snowed On April 13, 1977, Jo Anne and Shawn (by Jo Anne as guardian ad litem) brought suit against Niemer, who is not a party to this appeal. They joined respondent Whatcom County as a defendant, alleging that the accident was caused in part by improper road design and poor maintenance. They filed no claim with the County. The County answered the complaint, denying the basic allegations, pleading contributory negligence, and cross-claiming for indemnity from Niemer. The Halls and Whatcom County engaged in discovery into April of 1978. Thereafter nothing happened until June 9, 1980, when the Clerk of the Superior Court moved to dismiss for want of prosecution. The Halls responded by noting the case for trial.

the previous day, and there was ice on the road. As a result of the accident, Jo Anne lost the sight in her right eye and suffered serious facial injuries. Shawn suffered a broken cheekbone.

Whatcom County then moved for the first time for summary judgment based on the Halls' failure to file a claim with the County as required by RCW 36.45.030. The court granted the summary judgment motion and dismissed the complaint as against Whatcom County "without prejudice".

The Halls sought discretionary review in this court. The parties agreed that even though the dismissal was "without prejudice", a new action would be barred by the statute of limitations. ² The Commissioner therefore ruled that the Superior Court order was appealable as a matter of right.

Gates : On April 24, 1977, respondent Ronald Gates suffered severe burns in a fire in the DeLuxe Apartments in Seattle. A fire department investigation determined that the fire was caused by faulty wiring and that the sprinkler and fire alarm systems had failed to operate. The owners of the apartment building had previously been cited by the City of Seattle for not having a sprinkler and alarm system but had not corrected the problem.

Gates filed suit against Robert Rosen, Jack Davis, and Johan and Virginia DeLeeuw, the owners of the building, who are not parties to this appeal. On September 26, 1978, Gates amended his complaint to add petitioner City of Seattle as a defendant, charging negligent failure to enforce building ordinances. The City filed an answer on October 6, denying the essential allegations of the complaint and asserting as an affirmative defense Gates' failure to comply with the City's claim filing requirements. Seattle City Charter, art. 4, § 24. Gates finally filed a claim with the City on May 18, 1979, after the statute of limitations on his claim had run.

The trial court granted the City summary judgment dismissing the complaint on January 23, 1980. It found that under CR 54(b) there was no just reason for delay in entry of final judgment. The Court of Appeals reversed, holding that Seattle City Charter, article 4, section 24 is unconstitutional in its entirety. Gates v. Rosen, 29 Wash.App. 936, 631 P.2d 993 (1981). We granted the City of Seattle's petition for review.

Campbell : On February 20, 1977, Evelyn Campbell was involved in an automobile accident on Cottonwood Canyon Road, 8 miles west of Yakima. On February 20, 1980, Evelyn and her husband, Dorton Campbell, filed suit against respondent Yakima County and against Thunderbird Trucking and Construction, Inc. Thunderbird constructed the road but is not a party to this appeal. The complaint alleged negligent design and construction of the road. The Campbells filed a claim for damages on May 8, 1980 with the County and thereafter served a summons in this action.

Summary judgment in favor of the County was granted by the court on the ground that the claim was not timely filed since the statute of limitations for bringing a tort action had already run. The Court of Appeals upheld the trial court, Campbell v. Thunderbird Trucking & Constr., Inc., 30 Wash.App. 496, 636 P.2d 494 (1981), and motion for reconsideration was denied on November 10, 1981. We

granted the Campbells' petition for review in consolidation with Hall and Gates.

CONSTITUTIONALITY

In Hunter v. North Mason High School & School Dist. 403, 85 Wash.2d 810, 539 P.2d 845 (1975), we held unconstitutional RCW 4.96.020's requirement that formal notice of a claim for damages must be given to a school district within 120 days of the injury. Hunter failed to give the district notice of the tort claim within the 120-day period pursuant to RCW 4.96.020. Hunter, at 812, 539 P.2d 845. Hunter did file a claim 11 months after the injury and before commencing his suit. Hunter v. North Mason High School, 12 Wash.App. 304, 305, 529 P.2d 898 (1974), aff'd, Hunter v. North Mason High School & School Dist. 403, supra. We held the 120-day provision of that statute, as well as identical provisions in former RCW 4.92.100, 35.31.020 and 36.45.010, violated constitutional requirements of equal protection. In our broad holding we found unconstitutional the differential treatment accorded governmental and nongovernmental entities and tort victims of those entities.

The statutes thus create two classes of tort-feasors, governmental and nongovernmental, and grant the one a procedural advantage not available to the other. Concomitantly they produce two classes of tort victims and place a substantial burden on the right to bring an action of one of them.

Hunter, 85 Wash.2d at 813, 539 P.2d 845. The Hunter opinion suggested the entire notice of claim statutes and not simply their time limits were unconstitutional. The question was left unresolved, however.

In Jenkins v. State, 85 Wash.2d 883, 540 P.2d 1363 (1975), we held violative of equal protection a provision of RCW 36.45.030 requiring a claimant to bring suit within 3 months after filing of a claim and the lapse of a 60-day waiting period. Jenkins' equal protection analysis was less broad than that in Hunter. The 3-month time limit in RCW 36.45.030 was found unconstitutional because it was not supported by any reasonable justification and provided Once sovereign immunity has been waived, even partially, any legislative classifications made with reference thereto will be constitutional only if they conform to the equal protection guarantees of the state and federal constitutions.

differential treatment for certain governmental entities and their tort victims vis-a-vis other governmental entities and their tort victims.

... (W)e hold RCW 36.45.030 unconstitutional as violative of Const. art. 1, § 12 and U.S.Const. amend. 14 insofar as it purports to impose a different time limitation on the commencement of tort actions against counties than is imposed on the commencement of tort actions against other governmental entities in the state.

85 Wash.2d at 890-91, 540 P.2d 1363.

Finally, in Coulter v. State, 93 Wash.2d 205, 608 P.2d 261 (1980), we upheld RCW 4.92.110's requirement of filing a claim with the State as a condition precedent to bringing suit. Hunter was distinguished by pointing out that RCW 4.92.110 did not have the 120-day filing requirement struck down in Hunter. There we stated:

The plaintiff has a filing time requirement equal to the statutory limitations for bringing an action. That does not involve nor deny equal protection.

Coulter, at 207, 608 P.2d 261. See also Peterick v. State, 22 Wash.App. 163, 589 P.2d 250 (1977), review denied, 90 Wash.2d 1024 (1978).

Coulter nevertheless signalled a retreat from the broad equal protection framework of Hunter. While we implicitly agreed with Hunter's disapproval of different statutes of limitations for governmental as opposed to nongovernmental torts, we abandoned in Coulter the governmental/nongovernmental framework of comparison for all purposes. The statute in Coulter, by requiring a claim filing condition precedent, placed the State in a "procedural advantage" over nongovernmental entities since tort victims need not fulfill such a condition precedent constitutional.

The significance of the Coulter decision is that we found RCW 4.92.110's minor procedural burden on tort victims of the State insubstantial and justified even though such a burden does not exist in the nongovernmental context. The...