Marine Power & Equipment Co., Inc. v. Industrial Indem. Co.

• Decision Date: 06 September 1984
• Docket Number: No. 50406-7,50406-7
• Citation: 687 P.2d 202,102 Wn.2d 457
• Court: Washington Supreme Court
• Parties: MARINE POWER & EQUIPMENT COMPANY, INC.; State of Washington, Department of Transportation; and L.R. Glosten Associates, Inc., a Washington corporation, Respondents. v. INDUSTRIAL INDEMNITY COMPANY, a California corporation, Petitioner *

Page 457

102 Wn.2d 457

687 P.2d 202

MARINE POWER & EQUIPMENT COMPANY, INC.; State of

Washington, Department of Transportation; and L.R. Glosten Associates, Inc., a Washington corporation, Respondents. v. INDUSTRIAL INDEMNITY COMPANY, a California corporation,

Petitioner ^*

No. 50406-7.

Supreme Court of Washington,

En Banc.

Sept. 6, 1984.

Taylor & Bryan, Robert G. Taylor, Carroll L. Bryan, II, James P. Wagner, Mary O'Brien, Seattle, for petitioner.

Ken Eikenberry, Atty. Gen., William Boland, Spencer W. Daniels, Asst. Attys. Gen., Olympia, for respondents.

UTTER, Justice.

The single issue presented here is whether petitioner, a party joined late in the pretrial discovery stage of complex, multi-party litigation, had the right to move for and receive a change of judge under RCW 4.12.040 and RCW 4.12.050. We hold that petitioner was entitled to a change of judge and accordingly reverse.

In 1978, the Washington State Department of Transportation (DOT) contracted with Marine Power & Equipment Company for the construction of six "Issaquah" class ferries at a price of $105,862,300. DOT also retained L.R. Glosten Associates, Inc., a naval architecture and marine engineering firm, to administer the contract. Pursuant to its contract with DOT, Marine Power obtained a contract bond from petitioner, Industrial Indemnity Company, in the amount of $26,465,575, or 25 percent of the contract price.

In November 1981, Marine Power filed suit against DOT and Glosten Associates in Thurston County Superior Court. DOT filed its answer and counterclaim in April 1982. The parties claim damages ranging from $20-$30 million. The issues are various and complex. Discovery was anticipated to be very extensive and to last several years. A special discovery master, the Honorable Lloyd Shorett, was appointed. The parties stipulated to the assignment of Judge Carol A. Fuller to preside over pretrial matters and at trial. Trial was set for January 1985. It was anticipated to last a year.

Late into the discovery stage, on January 31, 1984, DOT first served petitioner, a California corporation, by filing a summons and complaint with the Secretary of State. Petitioner appeared through counsel Franklin & Watkins on February 24, 1984. On March 29, 1984, the firm of Taylor & Bryan was substituted as petitioner's counsel. On that same day, petitioner filed a motion for change of judge, supported by an affidavit of prejudice pursuant to RCW 4.12.040 and RCW 4.12.050.

A preliminary trial on a statute of limitations defense was scheduled to be heard by Judge Fuller on April 2, 1984. Judge Fuller heard arguments on petitioner's motion for change of judge on March 30 and on April 2. She then denied petitioner's motion and proceeded with trial.

In her oral opinion, Judge Fuller set forth the following reasons as the basis for denying petitioner's motion:

(1) the great difficulty involved in freeing an alternate judge's schedule to accomodate a year-long trial;

(2) the expertise Judge Fuller had acquired during her 2 years involvement with the case;

(3) petitioner's failure to file its motion and affidavit immediately upon being joined to the suit; and

(4) the unique nature and complexity of the case.

Petitioner filed a motion for discretionary review with this court which was granted on April 12, 1984. The Commissioner's written order provided for accelerated review and an expedited briefing schedule. The Commissioner also ruled that the result of the statute of limitations trial might be void if the trial court was found to have been in error as to its ruling on petitioner's motion for change of judge.

RCW 4.12.040 gives every party the right to a change of judge if the requirements of RCW 4.12.050 are satisfied. State ex rel. Mauerman v. Superior Court, 44 Wash.2d 828, 830, 271 P.2d 435 (1954).

RCW 4.12.040 provides, in part:

No judge of a superior court of the state of Washington shall sit to hear or try any action or proceeding when it shall be established as hereinafter provided that said judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. In such case the presiding judge in judicial districts where there is more than one judge shall forthwith transfer the action to another department of the same court, or call in a judge from some other court.

RCW 4.12.050 provides, in pertinent part:

Any party to or any attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion, supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge: Provided, That such motion and affidavit is filed and called to the attention of the judge before he shall have made any ruling whatsoever in the case, either on the motion of the party making the affidavit, or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, and before the judge presiding has made any order or ruling involving discretion, but the arrangement of the calendar, the setting of an action, motion or proceeding down for hearing or trial, the arraignment of the accused in a criminal action or the fixing of bail, shall not be construed as a ruling or order involving discretion within the meaning of this proviso; and in any event, in counties where there is but one resident judge, such motion and affidavit shall be filed not later than the day on which the case is called to be set for trial: ...

In this case there is no indication of actual prejudice. It should be stressed that the trial judge had been chosen by all parties prior to this joinder as a judge able to try this extremely complex case. Nonetheless, the statute is clear that once a party timely complies with the terms of RCW 4.12.050, prejudice is deemed established. Thereafter, "the judge to whom [the motion] is directed is divested of authority to proceed further into the merits of the action." State v. Dixon, 74 Wash.2d 700, 702, 446 P.2d 329 (1968); RCW 4.12.040. The plain language of RCW 4.12.050 supports petitioner's assertion that its motion was timely within the meaning of the statute. There is no contention here that Judge Fuller made a discretionary ruling after petitioner's joinder and of which it had been given adequate notice, prior to petitioner's motion for change of judge. Neither is Thurston a one-judge county. Only these criteria bring statutory timeliness requirements into play.

DOT does not contest petitioner's assertion that it filed its motion for change of judge and its affidavit of prejudice properly within the letter of these statutes. It maintains, instead, that the plain wording of RCW 4.12.050 does not go far enough to provide for the effective and orderly administration of justice. It urges this court to read into the statute a provision which would allow the trial court to consider the circumstances surrounding complex litigation on a case by case basis before determining whether a motion for change of judge is timely. This case, it urges, illustrates the statute's inadequacy in cases of complex, multi-party litigation.

It is within the power of this court to dictate, under the constitutional separation of powers, its own court rules, even if they contradict rules established by the Legislature. Const. art. 4, § 1; State v. Fields, 85 Wash.2d 126, 530 P.2d 284 (1975). We decline to do so in this case inasmuch as it was within the control of the Attorney General to decide whether and when petitioner would be joined. They have only themselves to blame for the additional cost and delay incurred by this late joinder.

It has long been the rule of this court to interpret statutes as they are plainly written, unless a literal reading would contravene legislative intent by leading to a strained or absurd result. State v. Keller, 98 Wash.2d 725, 657 P.2d 1384 (1983). Although we leave open the question whether the statute might lead to such a result in another case, we find it does not do so here.

RCW 4.12.050 was intended to take all discretion in determining prejudice away from the trial judge.

The statute permits of no ulterior inquiry; it is enough to make timely the affidavit and motion, and however much the judge moved against may feel and know that the charge is unwarranted, he may not avoid the effect of the proceeding by holding it to be frivolous or capricious.

State ex rel. Talens v. Holden, 96 Wash. 35, 40, 164 P. 595 (1917).

When first enacted in 1911, the statute did not contain a timeliness provision. Laws of 1911, ch. 121, § 2, p. 617. In order to further the orderly administration of justice and to avoid an absurd result, this court read a timeliness requirement into the statute. State ex rel. Lefebvre v. Clifford, 65 Wash. 313, 315, 118 P. 40 (1911).

[W]e cannot conclude that it was intended by the act that a party could submit to the jurisdiction of the court by waiving his rights to object until by some ruling of the court in a case he becomes fearful that the judge is not favorable to his view of the case. In other words, he is not allowed to speculate upon what rulings the court will make on propositions that are involved in the case and, if the rulings do not happen to be in his favor, to then for the first time raise the jurisdictional question.

Lefebvre, at 316, 118 P. 40.

From these concerns developed the rule that a motion for change of judge had to be filed prior to any discretionary ruling by the trial court. See also, State ex rel. Deavers v. French, 78 Wash. 260, 138 P. 869 (1914); State ex rel. Mead v. Superior Court, 108 Wash. 636, 185 P. 628 (1919); State ex rel. Davis v. Superior Court, 114 Wash. 335, 195 P. 25 (1921). This rule was incorporated into RCW 4.12.050, by amendment, in 1927. Laws of 1927, ch. 145, §...