PERRIN v. STENSLAND

• Citation: 240 P.3d 1189
• Decision Date: 10 November 2010
• Docket Number: No. 63539-5-I.,63539-5-I.
• Parties: Kevin Randall PERRIN and Cindy Perrin, husband and wife, and the marital community thereof, Appellants, v. Jeff STENSLAND and Jane Doe Stensland, husband and wife, and the marital community thereof; Hattie Van Weerdhuizen, Defendants, Dale Van Weerdhuizen, Personal Representative of the Estate of Gordon Van Weerdhuizen, Respondent.
• Court: Court of Appeals of Washington

240 P.3d 1189

Kevin Randall PERRIN and Cindy Perrin, husband and wife, and the marital community thereof, Appellants,

v.Jeff STENSLAND and Jane Doe Stensland, husband and wife, and the marital community thereof; Hattie Van Weerdhuizen, Defendants,Dale Van Weerdhuizen, Personal Representative of the Estate of Gordon Van Weerdhuizen, Respondent.

No. 63539-5-I.

Court of Appeals of Washington,Division 1.

Oct. 25, 2010.

As Amended Nov. 10, 2010.

Howard M. Goodfriend, Edwards Sieh Smith & Goodfriend, Seattle, WA, Donald W. Cater, Carter & Fulton, Everett, WA, for Appellants.

Marilee C. Erickson, Reed McClure, Patrick N. Rothwell, Davis Rothwell Earle & Xochihau PC, Seattle, WA, for Respondent.

BECKER, J.

¶ 1 A plaintiff injured in a collision commences a personal injury suit shortly before the statute of limitations expires, naming the driver of the other vehicle as a defendant. Unknown to the plaintiff, the driver has died since the collision. Outside the limitations period, the plaintiff files and serves an amended complaint substituting the driver's estate as defendant. Does the amended complaint relate back to the timely original complaint under CR 15(c)?

¶ 2 In this case, the trial court concluded the plaintiff should have realized sooner the need to amend the complaint; the delay was inexcusable neglect; and therefore, relation back was not permitted. We reverse. The focus under CR 15(c) is upon what the new defendant knew or should have known before the limitations period expired, not upon the diligence of the plaintiff in amending the complaint. The driver's estate had notice of the pending action by way of timely service upon the driver's widow, who had insurance coverage under the same policy as the driver.

The estate was not prejudiced in its defense and should have known that the action would have been brought against the estate had the plaintiff not mistakenly believed the driver was still alive. Under these circumstances, where all the prerequisites for relation back were met, the trial court should have denied the motion to dismiss.

FACTS

¶ 3 Appellant Kevin Perrin was riding in Jeff Stensland's car when it collided with the car Gordon Van Weerdhuizen was driving. Perrin was injured.

¶ 4 The accident occurred on August 15, 2003. The statute of limitations for a personal injury action is three years. RCW 4.16.080(2). On July 3, 2006, Perrin and his wife and marital community filed a summons and complaint for personal injuries in Whatcom County Superior Court, initially naming as defendants Stensland and Van Weerdhuizen and their spouses and marital communities.

¶ 5 On July 14, 2006, Perrin made service on the Stenslands. ¹ On July 24, 2006, a process server personally served the summons and complaint upon Hattie Van Weerdhuizen at her home. Service for Gordon Van Weerdhuizen was left with Hattie as well. Perrin was not aware that Gordon had died on March 20, 2006. His attorney did not notice that the process server's declaration of service listed Hattie as “Spouse/Widow.” ²

¶ 6 On August 11, 2006, Perrin received a notice of appearance for Hattie from the law firm of Davis Rothwell Earle & Xóchichua, P.C.

¶ 7 On August 15, 2006, the Van Weerdhuizens' son, Dale, was appointed personal representative of Gordon's estate in a probate opened in Whatcom County. The probate file included Gordon's will, in which Hattie was the first nominee for personal representative. ³ Dale filed a notice to creditors. The date of first publication was September 20, 2006. ⁴

¶ 8 On August 30, 2006, Perrin, still unaware of Gordon's death, mailed interrogatories directed to both Hattie and Gordon. Hattie responded on September 28. Right after listing her address and date and place of birth, she wrote “widow as of March 20, 2006.” Perrin and his attorney did not notice that answer. ⁵

¶ 9 Perrin did not learn of Gordon's death and the appointment of Dale as personal representative until December 20, 2006. On that date, Keith Bode, the attorney representing Dale in the probate, wrote to Perrin saying Dale had been informed Perrin was a potential creditor of the estate “by reason of claims arising from an August 15, 2003, motor vehicle crash.” The letter included a copy of the Notice to Creditors and stated that notice of the probate was being provided in order to trigger the applicable bar dates in the probate code that would bar any claim that was not timely presented “and if not already barred by any other applicable statute in limitation of actions.” ⁶ Bode enclosed these documents in a similar letter to Perrin's attorney George Freeman, recognizing him as “apparent counsel for Mr. and Mrs. Perrin in related matters.” ⁷ Perrin promptly filed a claim with the estate. Dale rejected it on January 23, 2007.

¶ 10 On February 1, 2007, Perrin filed an amended summons and complaint substituting Dale, in his capacity as personal representative of the estate, as defendant in place of Gordon. He had Dale personally served two weeks later.

¶ 11 On March 7, 2007, attorney Patrick N. Rothwell filed a notice of appearance for Dale as personal representative of the estate. Rothwell's firm had been representing Hattie since her appearance in Perrin's suit on August 11, 2006. Also on March 7, Rothwell sent a letter asking Perrin to file a dismissal as to Hattie. He said he had just received notice from the insurance carrier, One Beacon, that Dale as personal representative was covered under Gordon's insurance policy. “Given the fact that there is more than enough insurance coverage, and that this claim is not being defended under a reservation of rights, I ask that you voluntarily dismiss Hattie Van Weerdhuizen.” The letter continued, “As we have discussed in the past, there is no reason for her to remain in this case since, if your clients are ultimately successful, any judgment they obtain would be satisfied through the insurance policy without the need to pursue any community property interest.” ⁸ Perrin did not agree to dismiss Hattie at that time.

¶ 12 On April 16, 2007, the estate and Hattie, both represented by Rothwell, moved for dismissal under CR 12(b)(6) on statute of limitations grounds. The trial court heard argument and dismissed Perrin's suit with prejudice, concluding that the amendment naming the estate as a party did not relate back because Perrin was guilty of inexcusable neglect.

¶ 13 Perrin appeals from the dismissal of his claim against the Van Weerdhuizen estate.

¶ 14 As personal representative of the estate, Dale initially framed the issue in the trial court as “whether plaintiff can sue the personal representative of an estate after the statute of limitations on plaintiff's claim has expired.” ⁹ He argued the amended complaint was time barred because the three year statute of limitations expired on August 15, 2006, and Perrin neither filed nor served a complaint naming the estate as a defendant until almost six months after that date. He relied on Young v. Estate of Snell, 134 Wash.2d 267, 948 P.2d 1291 (1997), a case he does not mention in his briefing on appeal. Young holds that the three year statute of limitations for personal injury claims applies to claims brought against the estate of an insured decedent driver. But it does not address the effect of CR 15(c), and so it is irrelevant to the single issue that both parties now agree is before this court: whether the amended complaint substituting the estate for Gordon relates back under CR 15(c) to the date of the original complaint. The parties agree that if it does, the action against the estate is not time barred.

STANDARD OF REVIEW

¶ 15 Under CR 12(c), the motion to dismiss for failure to state a claim was converted to a motion for summary judgment when the trial court considered matters outside the pleadings, including the declaration of Perrin's attorney and attached documents. In reviewing a summary judgment, this court engages in the same inquiry as did the superior court. Where there are no factual disputes, the case is ripe for summary judgment. Craig v. Ludy, 95 Wash.App. 715, 717, 976 P.2d 1248 (1999), review denied, 139 Wash.2d 1016, 994 P.2d 844 (2000).

¶ 16 To dismiss on the basis of the statute of limitations, the trial court had to first conclude that the amended complaint did not relate back because of Perrin's inexcusable neglect. The estate contends we should review this decision for abuse of discretion, citing Caruso v. Local Union No. 690 Int'l Bhd. of Teamsters, 100 Wash.2d 343, 351, 670 P.2d 240 (1983). Caruso, however, simply states the rule that a trial court has discretion in deciding a motion for leave to amend. Some opinions do refer to abuse of discretion as the standard for reviewing a decision under CR 15(c), probably because the issue often arises in connection with a motion for leave to amend. See, e.g., Nepstad v. Beasley, 77 Wash.App. 459, 468, 892 P.2d 110 (1995) (all the requirements of CR 15(c) were satisfied by plaintiff's request for leave to amend; denial of this request did not rest on tenable grounds); Foothills Dev. Co. v. Clark County Bd. of County Comm'rs, 46 Wash.App. 369, 374, 730 P.2d 1369 (1986), review denied, 108 Wash.2d 1004 (1987). A trial court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 339, 858 P.2d 1054 (1993).

¶ 17 More typically, appellate courts do not refer to a determination of relation back as being discretionary with the trial court; rather, the question is whether the requirements of CR 15(c) have been met. See, e.g., Tellinghuisen v. King County Council, 103 Wash.2d 221, 223, 691 P.2d 575 (1984). This was also the approach taken by the United States Supreme Court in a recent decision authoritatively construing Rule 15(c) of the Federal Rules of Civil Procedure: “Moreover, the Rule mandates relation back once the Rule's requirements are satisfied; it...