Hanson v. Carmona

• Decision Date: 09 March 2021
• Docket Number: No. 37419-0-III,37419-0-III
• Citation: 16 Wash.App.2d 834,491 P.3d 978
• Court: Washington Court of Appeals
• Parties: Kylie HANSON, individually, Respondent, v. Miriam Gonzalez CARMONA and John Doe Carmona, husband and wife, individually, and the marital community comprised thereof, Petitioners. Southeast Washington Office of Aging and Long Term Care Advisory Council, a Washington non-profit corporation, Defendant.

16 Wash.App.2d 834

491 P.3d 978

Kylie HANSON, individually, Respondent,

v.Miriam Gonzalez CARMONA and John Doe Carmona, husband and wife, individually, and the marital community comprised thereof, Petitioners.

Southeast Washington Office of Aging and Long Term Care Advisory Council, a Washington non-profit corporation, Defendant.

No. 37419-0-III

Court of Appeals of Washington, Division 3.

FILED MARCH 9, 2021

Ordered Published Date APRIL 27, 2021

Christopher Joseph Kerley, Evans, Craven & Lackie, P.S., 818 W Riverside Ave. Ste. 250, Spokane, WA, 99201-0994, for Petitioner.

Sean Michael King, Evans. Craven & Lackie, P.S., 818 W Riverside Ave. Ste. 250, Spokane, WA, 99201-0994, for Defendant.

Marshall Casey, Sweetser Law Office, PLLC, 1020 N Washington St., Spokane, WA, 99201-2237, for Respondent.

Fearing, J. ¶ 1 On discretionary review, we address a unique question: whether RCW 4.96.010 and RCW 4.96.020(4), Washington's municipal corporation claims-filing statutes, violate the separation of powers doctrine because of a conflict with CR 3(a). Defendant Miriam Gonzalez Carmona, a government entity employee, allegedly caused a car accident that resulted in injuries to plaintiff Kylie Hanson. Hanson failed to file a pre-suit notice under RCW 4.96.020(4) within the statute of limitations. Carmona moved for summary judgment dismissal based on Hanson's omission of the statutory pre-suit notice, which motion the trial court denied. We hold RCW 4.96.020(4) to be constitutional in face of a separation of powers challenge. We also reject Hanson's argument that a claimant need not file a pre-suit notice on the municipality when the claimant sues the government employee in her individual capacity but when the employee committed the tort during the course of employment. We reverse the trial court's denial of summary judgment to Carmona.

FACTS

¶ 2 Kylie Hanson sues Miriam Gonzalez Carmona for an automobile accident. On September 6, 2016, Carmona drove a vehicle that struck a car driven by Hanson in an intersection in Spokane Valley. Carmona failed to obey a red traffic light and proceeded into the intersection.

¶ 3 At the time of the collision, Miriam Gonzalez Carmona drove a car in the course of her work with Southeast Washington Office of Aging and Long Term Care (SEW ALTC), an agency on aging established pursuant to chapter 74.38 RCW. Eight southeastern Washington counties created SEW ALTC through an interlocal agreement. CP 17-18, CP 21. SEW ALTC is a local governmental entity. SEW ALTC owned the Chevy Malibu driven by Carmona.

PROCEDURE

¶ 4 On August 26, 2019, Kylie Hanson filed suit against Miriam Gonzalez Carmona and an advisory council that oversees SEW ALTC. Kylie Hanson never filed a statutory notice of claim with Carmona's employer, SEW ALTC.

¶ 5 On October 7, 2019, Miriam Gonzalez Carmona and the advisory council brought a motion for summary judgment seeking dismissal of the suit with prejudice. The two defendants argued that Carmona's employer, SEW ALTC, is a local governmental entity. According to the defendants, Kylie Hanson needed to file a pre-suit tort claim with SEW ALTC under RCW 4.96.020 before commencement of a lawsuit against Carmona. The defendants also argued that the three-year statute of limitations had expired.

¶ 6 On October 28, 2019, Kylie Hanson filed an amended complaint that removed the advisory council as a defendant. She did not substitute SEW ALTC as a defendant. Miriam Gonzalez Carmona became the sole defendant. Hanson also removed in the amended complaint any allegation that Gonzalez Carmona operated the vehicle within the scope of her employment.

¶ 7 When responding to the summary judgment motion, Kylie Hanson did not contend that Miriam Gonzalez Carmona worked outside the scope of her employment with SEW ALTC at the time of the collision. Hanson argued, however, that Miriam Gonzalez Carmona remained personally liable for the accident regardless of her employer.

¶ 8 The trial court denied Miriam Gonzalez Carmona's summary judgment motion. The trial court ruled that the suit against Carmona individually could survive the lack of a pre-suit government claim. We granted discretionary review of the ruling.

LAW AND ANALYSIS

¶ 9 Miriam Gonzalez Carmona contends that she is a government entity employee and that Kylie Hanson needed to have filed a notice of claim under RCW 4.96.020(4) before commencing a lawsuit against her since she performed her acts within the scope of her employment. In response, Kylie Hanson argues six sometimes overlapping points. First, Carmona remains personally and privately liable for her tortious conduct regardless of the identity of her employer and regardless of whether she acted in the scope of her employment. Second, because SEW ALTC need not be joined in this lawsuit, Hanson need not supply Carmona or her employer a pre-suit tort claim. Third, any agreement by the government entity or its insurer to indemnify and provide a defense to Carmona does not convert this lawsuit into one against the government. Fourth, Carmona cannot rely on the government claims-filing statute because Hanson dismissed any quasi-governmental entity before the trial court issued its summary judgment denial. Fifth, CR 3(a) governs the commencement of a lawsuit, and RCW 4.96.020(4) impermissibly conflicts with the court rule. This argument asserts the separation of powers doctrine. Sixth, dismissal of her claim against Carmona for the failure to serve a pre-suit notice violates Hanson's fundamental property rights. The first four contentions rely primarily on common law, and we conflate those four arguments for purposes of analysis. Hanson grounds the last two arguments on constitutional principles, and we review those arguments together.

Statutory and Common Law

¶ 10 Two Washington statutes control our decision. First, RCW 4.96.010 declares:

(1) All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation. Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages.

(Emphasis added.) In turn, RCW 4.96.020 reads, in part:

(1) The provisions of this section apply to claims for damages against all local governmental entities and their officers, employees , or volunteers, acting in such capacity.

(2) ... All claims for damages against a local governmental entity, or against any local governmental entity's officers, employees, or volunteers, acting in such capacity, shall be presented to the agent within the applicable period of limitations within which an action must be commenced.

....

(4) No action subject to the claim filing requirements of this section shall be commenced against any local governmental entity, or against any local governmental entity's officers, employees , or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty calendar days have elapsed after the claim has first been presented to the agent of the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty calendar day period.

(Emphasis added.) Similar statutes apply to claims brought against the State of Washington and the State's employees. The statutes are alternatively called nonclaim statutes, pre-suit notice statutes, and claims-filing statutes.

¶ 11 Washington courts have held that the claimant must file the statutory pre-suit claim with the local government or the State for torts committed by an employee during the scope of work for the government. Wright v. Terrell , 162 Wash.2d 192, 195, n.1, 170 P.3d 570 (2007) ; Hyde v. University of Washington Medical Center , 186 Wash. App. 926, 930, 347 P.3d 918 (2015) ; Woods v. Bailet , 116 Wash. App. 658, 665-66, 67 P.3d 511 (2003) ; Hardesty v. Stenchever , 82 Wash. App. 253, 261, 917 P.2d 577 (1996). The claim statute extends to suits arising from the conduct of a government employee even if the claimant only sues the employee. Hyde v. University of Washington Medical Center , 186 Wash. App. at 930-31, 347 P.3d 918 (2015).

¶ 12 The Washington Supreme Court, in Bosteder v. City of Renton , 155 Wash.2d 18, 117 P.3d 316 (2005), identified the purposes behind a government pre-suit notice statute. The government should be afforded an opportunity to investigate and remedy any potential claims prior to or in place of entrance of those claims into the judicial system. RCW 4.96.041 requires a local government to pay for the defense of its employee when the plaintiff sues the employee for acts committed within the scope of her employment. Thus, whether the plaintiff names the employee in the suit, the local government entity, or both, the action will implicate the local government's finances. In addition to RCW 4.96.041(2) demanding that the governmental entity provide a defense for an employee sued for an act committed in good faith and in the scope of her employment, RCW 4.96.041(4) directs the government entity to pay any judgment against such employee.

¶ 13 To avoid application of RCW 4.96.020(4), Kylie Hanson forwards the Washington Supreme Court's decision in Eastwood v. Horse Harbor Foundation, Inc. , 170 Wash.2d 380, 241 P.3d 1256 (2010) for the proposition that an employee may be held personally liable for her tortious conduct regardless if she committed the tort in the course of employment. In that case, the Supreme Court reviewed a Court of Appeals decision that held the lessor of real property could not recover for economic loss caused by the lessee's waste because the lessor's remedies were those limited to remedies listed in the lease. The Court of Appeals also ruled that...