Sidis v. Brodie/Dohrmann, Inc.

• Decision Date: 06 August 1990
• Docket Number: No. 23612-1-I,23612-1-I
• Citation: 794 P.2d 1309,58 Wn.App. 665
• Parties: Michael D. SIDIS, Appellant, v. BRODIE/DOHRMANN, INC., Respondents.
• Court: Washington Court of Appeals

Page 665

58 Wn.App. 665

794 P.2d 1309

Michael D. SIDIS, Appellant, v. BRODIE/DOHRMANN, INC., Respondents.

No. 23612-1-I.

Court of Appeals of Washington,

Division 1.

Aug. 6, 1990.

Reconsideration Denied Sept. 17, 1990.

Platis, Dire & Bolin, Oz Dire, Lynnwood, for appellant.

Short, Cressman & Burgess, Scott A. Smith, Seattle, for respondents.

SWANSON, Judge.

Michael Sidis appeals from summary judgment orders dismissing his claims against Brodie/Dohrmann, Inc. (Brodie/Dohrmann), a Washington corporation, Spring, Ltd. (Spring), a Swiss corporation, and Cambridge Corporation, Inc. (Cambridge), an Illinois corporation. Sidis contends that the trial court erred in determining that the statute of limitations had expired on his claims against Spring and Cambridge; Sidis further contends that material factual issues exist regarding Brodie/Dohrmann's alleged negligence.

Appellant Sidis brought this action alleging that he was injured on April 19, 1984, when a small table-side, alcohol-burning stove that he was refueling exploded. At the time of the accident, Sidis was a cook at a Seattle restaurant.

The stove, known as a rechaud stove, was manufactured in Switzerland by Spring, distributed by Cambridge in Illinois, and sold by Brodie/Dohrmann, a restaurant and hotel supplier, to Sidis's employer in 1979. Sidis filed the instant action for personal injuries on July 28, 1986. The complaint named "Spring Company," "Cambridge Organization," and Brodie/Dohrmann as defendants; only Brodie/Dohrmann was served.

On March 11, 1987, Brodie/Dohrmann filed a third-party complaint against Spring and Cambridge. Spring and Cambridge entered an appearance in response to the third-party complaint without waiving objections to improper service. Sidis did not serve Cambridge and Spring until February 11, 1988.

On December 22, 1987, the trial court granted Brodie/Dohrmann's motion for summary judgment on all claims except negligence. On June 6, 1988, the trial court granted Brodie/Dohrmann's summary judgment motion on the issue of negligence. On December 8, 1988, the trial court granted Cambridge's and Spring's motion for summary judgment. From these orders, Sidis has appealed.

Sidis initially contends that the trial court erred in dismissing Cambridge and Spring because the three-year statute of limitations had expired. Sidis maintains that proper commencement of the action as to Brodie/Dohrmann tolled the statute of limitations as to Cambridge and Spring, at least until Brodie/Dohrmann was dismissed. Since Cambridge and Spring were served before Brodie/Dohrmann was dismissed, Sidis reasons, the statute of limitations did not expire.

Sidis's argument is governed by RCW 4.16.170, which provides:

For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing of the complaint, Ithe plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint. If the action is commenced by service on one or more of the defendants or by publication, the plaintiff shall file the summons and complaint within ninety days from the date of service. If following service, the complaint is not so filed, or following filing, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations.

(Italics ours.) Sidis, relying on the emphasized passage, contends that by serving Brodie/Dohrmann, he served "one or more of the defendants" and thereby tolled the statute of limitations not only as to Brodie/Dohrmann, but as to Spring and Cambridge as well.

We begin with the proposition that the primary objective of statutory construction is to ascertain and give effect to the intent of the Legislature. Bellevue Fire Fighters Local 1604 v. Bellevue, 100 Wash.2d 748, 751, 675 P.2d 592 (1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985). When statutory language is plain and unambiguous, its meaning must be derived from the wording of the statute itself. Human Rights Comm'n v. Cheney Sch. Dist. 30, 97 Wash.2d 118, 121, 641 P.2d 163 (1982).

These general principles, however, must be viewed in light of equally important countervailing canons of statutory construction. A statutory provision should be interpreted "to avoid strained or absurd consequences that could result from a literal reading." Christie-Lambert Van & Storage Co. v. McLeod, 39 Wash.App. 298, 305, 693 P.2d 161 (1984). "[T]he spirit or the purpose of legislation should prevail over the express but inept language ..." Alderwood Water Dist. v. Pope & Talbot, Inc., 62 Wash.2d 319, 321, 382 P.2d 639 (1963). Even courts applying the plain meaning rule have noted the existence of a reasonable or rational basis underlying the statute. See, e.g., Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 224, 770 [794 P.2d 1311] P.2d 182 (1989) (construing RCW 4.16.190 to allow indefinite time span for permanently incompetent person to sue is not absurd). Thus, we will not mechanically apply the literal meaning of words absent an arguably rational basis and when to do so will result in absurd or irrational consequences. See Alderwood Water Dist., supra.

RCW 4.16.170 "stands alone as the rule for tolling the statute of limitations..." Nearing v. Golden State Foods Corp., 114 Wash.2d 817, 822, 792 P.2d 500 (1990) (service of summons alone sufficient to toll statute of limitations pursuant to RCW 4.16.170 provided summons and complaint filed within 90 days of service); see also CR 3(a). RCW 4.16.170 does not, however, extend the statute of limitations:

Instead, the 90 days simply allows a plaintiff, who has tentatively commenced an action against a party by filing a complaint just before the pertinent statute of limitations runs, to perfect the commencement of the action by serving that party, even after the statute runs, as long as it is within 90 days of the date the complaint was filed.

Kiehn v. Nelsen's Tire Co., 45 Wash.App. 291, 298, 724 P.2d 434 (1986), review denied, 107 Wash.2d 1021 (1987).

RCW 4.16.170 provides that service on "one or more of the defendants" after filing of the complaint will toll "any" statute of limitations for "an action." The statute does not clearly address or resolve the question raised here, however, that is whether tolling the statute of limitations for "an action" necessarily tolls the statute of limitations as to all defendants named in "the action," even if they have not been served.

The meaning of the "one or more of the defendants" language is obscured by the combination of singular and plural forms in the sentence that is the focus of the instant appeal: "If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served ..." The shift between the first and second clause makes the intended application of the provision to cases involving multiple defendants unclear. In addition, the general focus of RCW 4.16.170 is on the "action", a term that is itself ambiguous and may be reasonably understood in both narrow and broad senses. Cf. Dolman v. Department of Labor & Indus., 105 Wash.2d 560, 565, 716 P.2d 852 (1986) ("action" as used in RCW 51.16.190(1) is ambiguous and "is not a word of art which carries its own definition").

Consequently, we cannot say that the meaning and application of the "one or more of the defendants" provision in RCW 4.16.170 "flows from unmistakably clear statutory language." Young v. Key Pharmaceuticals, supra, 112 Wash.2d at 224, 770 P.2d 182. We therefore look to other sources in an attempt to glean legislative intent. See Department of Transp. v. State Employees' Ins. Bd., 97 Wash.2d 454, 458, 645 P.2d 1076 (1982).

A review of the history of the provision provides no further indication of its intended meaning in the instant context. RCW 4.16.170 was enacted in its present form in 1971. See Laws of 1971 ex. sess., ch. 131, § 1. Prior to 1971, former RCW 4.16.170 provided that an action was not deemed commenced for purposes of tolling the statute of limitations "until the complaint is filed." See Laws of 1955, ch. 43, § 3. The tolling language of former RCW 4.16.170 had long been the law in Washington. See Cresswell v. Spokane Cy., 30 Wash. 620, 71 P. 195 (1903).

The "one or more of the defendants" provision was grafted into RCW 4.16.170 virtually unchanged from former RCW 4.28.010, by way of an intermediate stop in former CR 3(a). See 71 Wash.2d xvii, xxvii (1967). Former RCW 4.28.010 delineated the commencement of civil actions and provided in pertinent part:

Civil actions ... shall be commenced by the service of a summons ... or by filing a complaint ... Provided, That unless service has been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing of the complaint ...

The "one or more of the defendants" language was added to the predecessor of former RCW 4.28.010 in 1895. See Laws of 1895, ch. 86, p. 170 (formerly Bal. Code § 4869, Rem.Rev.Code § 220); Deming Inv. Co. v. Ely, 21 Wash 102, 57 P. 353 (1899). This provision was construed to mean that

unless the summons has been served prior to the filing of the complaint, it is necessary that, within ninety days, it must be served on one or more of the defendants personally, or publication commenced within that time. If the summons is not served personally within the time fixed, or the publication begun within that time, the court obtains no jurisdiction. Prior to the time that the summons is served, after the filing of the complaint, the court's jurisdiction is conditional, and the filing of the...