Jenkins v. State

• Decision Date: 02 October 1975
• Docket Number: Nos. 43386,43411,s. 43386
• Citation: 85 Wn.2d 883,540 P.2d 1363
• Parties: Thomas JENKINS, as Personal Representative of the Estate of Pamela Diane Jenkins, Appellant, v. STATE of Washington et al., Respondents. Paula Louise SMAIL et al., and Louise Kalakuhi, Appellants, v. BURLINGTON NORTHERN, INC., a Foreign Corporation, and State of Washington, et al., Respondents.
• Court: Washington Supreme Court

Page 883

85 Wn.2d 883

540 P.2d 1363

Thomas JENKINS, as Personal Representative of the Estate of Pamela Diane Jenkins, Appellant, v. STATE of Washington et al., Respondents.

Paula Louise SMAIL et al., and Louise Kalakuhi, Appellants, v. BURLINGTON NORTHERN, INC., a Foreign Corporation, and State

of Washington, et al., Respondents.

Nos. 43386, 43411.

Supreme Court of Washington, En Banc.

Oct. 2, 1975.

Sullivan, Morrow & Longfelder, Daniel F. Sullivan, Gregg L. Tinker, Rutherford, Kargianis & Austin, John I. Weston, Jr., Seattle, for appellants.

Lee, Smart, Cook, Dunlap & Biehl, John F. Biehl, David L. Martin, Nelson T. Lee, Robert C. Williams, Reed, McClure, Moceri & Thonn, J. E. Thonn, Seattle, Slade Gorton, Atty. Gen., Olympia, for respondents.

HOROWITZ, Associate Justice.

Plaintiffs appeal summary judgments of dismissal of four consolidated actions seeking relief against King County for negligent injury because of untimely compliance with the claim for damages statute RCW 36.45.030. We hold the statute violative of equal protection as later discussed.

On December 28, 1971, Russell P. Fehr, a minor, was seriously injured as the result of an automobile-train collision at the intersection of 259th Street and the Burlington Northern, Inc. railway tracks located in the City of Kent, King County, Washington. On April 5, 1972, Louise Kalaluhi, mother of Russell Fehr, filed a claim for damages with King County, alleging negligence on the part of the county for failure to properly sign, clear, and maintain the roadway, abutting property, and railway crossing. The claim was rejected by letter dated May 23, 1972.

On January 9, 1974, a complaint against King County, the State of Washington, Burlington Northern, Inc., and Smith Brothers Heating Service for personal injuries to Russell Fehr was filed by Paula Louise Smail, in her representative capacity as guardian ad litem for the child. On the same date Louise Kalaluhi filed a complaint for injury to the parent-child relationship. The two cases were subsequently consolidated for trial.

On January 18, 1972, a second automobile-train collision occurred at the same location, this time resulting in the death of Pamela Jenkins and serious injuries to her son, Isaac Jenkins. A claim for damages was filed with King County on May 5, 1972, by Thomas Jenkins, husband of Pamela and father of Isaac, also alleging negligence on the part of the county in failing to properly sign, clear, and maintain the roadway, abutting property, and railway crossing where the collision occurred. This claim was also rejected by letter dated May 23, 1972.

On October 19, 1973, Thomas Jenkins, in his capacity as personal representative of the estate of Pamela Jenkins, filed a complaint for wrongful death against King County, the State of Washington, City of Kent, Burlington Northern, Inc., Allied Salvage, and two other John Does. He filed a second complaint for injury to the parent-child relationship in his own behalf on the same date. These two cases were also consolidated for trial.

King County moved for summary judgment in each of the four cases to dismiss the respective complaints against the county on the ground all four actions were not commenced within the time period provided for in RCW 36.45.030. At the time that statute read as follows:

No action shall be maintained on any claim for damages until it has been presented to the board of county commissioners and sixty days have elapsed after such presentation, but Such action must be commenced within three months after the sixty days have elapsed.

(Italics ours.) The four complaints not having been filed within the time period prescribed, the trial court granted the motions and entered summary judgments dismissing the four complaints against the county. Plaintiffs appeal.

Plaintiffs contend the trial court erred in dismissing their complaints because RCW 4.96, not RCW 36.45.030, governs the commencement of tort actions against counties. RCW 4.96.010 provides:

All political subdivisions, municipal corporations, and quasi municipal corporations of the state, 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 officers, agents or employees to the same extent as if they were a private person or corporation: Provided, That the filing within the time allowed by law of any claim required shall be a condition precedent to the maintaining of any action. The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory.

Plaintiffs cite that statute as evidencing legislative intention to establish a uniform scheme of governmental tort liability. Plaintiffs accordingly contend RCW 4.96 impliedly repealed RCW 36.45.030 insofar as it applied to tort actions against counties, leaving the latter statute still applicable to other actions against counties.

We agree with the respondent, however, that RCW 36.45.030 clearly controls the commencement of actions against counties, including tort actions, by its own terms and by the terms of RCW 4.96.020, which provides in part:

(1) Chapter 35.31 RCW shall apply to claims against cities and towns, and chapter 36.45 RCW shall apply to claims against counties.

(2) The provisions of this subsection shall not apply to claims against cities and towns or counties but shall apply to claims against all other political subdivisions, municipal corporations, and quasi municipal corporations.

We also agree with respondent RCW 4.96 does not meet the requirements of repeal by implication. Repeals by implication are not favored. Tardiff v. Shoreline School Dist., 68 Wash.2d 164, 411 P.2d 889 (1966). As stated in State ex rel. Reed v. Spanaway Water Dist., 38 Wash.2d 393, 397, 229 P.2d 532, 534 (1951):

The General rule of statutory interpretation respecting implied repeals, as previously stated, provides that in the absence of specific repealing language, a prior act is not repealed by the enactment of a later act relating to the same matter. The Exception to the general rule permits a repeal by implication if the later act:

1. Covers the entire subject matter of the earlier legislation;

2. Is Complete within itself;

3. Is evidently intended to supersede the prior legislation on the subject; or

4. If the two acts are so clearly inconsistent with and repugnant to each other that they cannot by fair and reasonable construction be reconciled and both be given effect.

First, RCW 4.96, applying only to tort actions, does not cover the entire subject matter of RCW 36.45.030, which applies to all actions against counties. Second, in view of RCW 4.96.020(1) quoted above, RCW 4.96 was expressly not intended to repeal RCW 36.45.030. Third, RCW 4.96 and RCW 36.45.030 are not clearly inconsistent and repugnant to each other. They can fairly be construed to give effect to both; namely, RCW 36.45.030 applies to all actions against counties, including those sounding in tort, and RCW 4.96 applies to tort actions against all other political subdivisions, municipal corporations, and quasi municipal corporations, exclusive of cities and towns. RCW 4.96.020; RCW 35.31.

Plaintiffs also contend RCW 4.96 should be held to control over RCW 36.45.030 on the question of commencement of tort actions against counties because RCW 4.96 is a special statute applying only to claims against governmental entities sounding in tort, whereas RCW 36.45.030 is a general statute applying to all claims and actions against counties, and, as stated in Mercer Island v. Walker, 76 Wash.2d 607, 613, 458 P.2d 274, 278 (1969):

(W)here there is a conflict between a general and a special statute, covering the subject in a more definite and minute way, the specific statute will prevail.

However, respondent points out that RCW 36.45.030 can easily be read to be the more specific of the two statutes since it applies only to counties, whereas RCW 4.96 is a general statute applying to '(a)ll political subdivisions, municipal corporations, and quasi municipal corporations of the state . . .' RCW 4.96.010. Therefore, RCW 36.45.030 would control. Mercer Island v. Walker, supra.

Plaintiffs next contend that, if RCW 36.45.030 controls the commencement of tort actions against counties, the three-month limitation on the commencement of actions provided for in that statute constitutes an invidious and arbitrary discrimination against victims of the tortious conduct of counties in violation of the guarantee of 'equal protection of the laws' contained in Const. art. 1, § 12 and U.S.Const. amend. 14. Plaintiffs contend this is so because victims of the tortious conduct of all other governmental entities in the state, including the state itself, have three years from the date of the occurrence to commence their actions under the general statute of limitations relating to torts (RCW 4.16.080(2)). RCW 4.92.110; RCW 4.96.020; RCW 35.31.

For the reasons discussed below, plaintiffs' constitutional attack must be sustained. Const. art. 1, § 12 provides:

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

U.S.Const. amend. 14 provides that no state may 'deny to any person within its jurisdiction the equal protection of the laws.' This principle of equal protection, guaranteed by both state and federal constitutions, 'does not require that things different in fact be treated in law as though they were the same', but 'it does require, in its concern for equality, that those who are similarly situated be similarly treated.' Tussman & ten Broek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341, 344 (1949); see also, Note, Developments in the Law--Equal Protection of the Laws, 82 Harv.L.Rev. 1065 (1969). As stated by the United States...