Sidis v. Brodie/Dohrmann, Inc.
| Decision Date | 05 September 1991 |
| Docket Number | 57673-4,Nos. 57660-2,s. 57660-2 |
| Citation | 117 Wn.2d 325,815 P.2d 781 |
| Parties | Michael D. SIDIS, a single man, Petitioner, v. BRODIE/DOHRMANN, INC., a Washington corporation, Spring Ltd., a Swiss corporation, and Cambridge Corporation, Inc., an Illinois corporation, Respondents. Lesta CLARK, personal representative of the Estate of Charles Rasberry, and Lesta Clark, Petitioner, v. The STATE of Washington, Defendant, Dexter H. Pinkman and "Jane Doe" Pinkman, husband and wife, Respondents. |
| Court | Washington Supreme Court |
Robert O. Dire, Lynnwood, for petitioner Sidis.
Robert A. Izzo, Tacoma, for petitioner Clark.
Short, Cressman & Burgess, Scott A. Smith, Seattle, for respondents Spring Ltd. and Cambridge Corp.
Hackett, Beecher & Hart, Steven A. Branom, Seattle, for respondents Pinkman.
Bryan P. Haretiaux, Harbaugh & Bloom, Gary N. Bloom, Spokane, amicus curiae for petitioners on behalf of Washington State Trial Lawyers Ass'n.
Craig L. McIvor, Patricia H. Welch, Seattle, amicus curiae for respondents on behalf of Washington Defense Trial Lawyers Ass'n.
Review of these consolidated cases was granted on one issue only: whether, under RCW 4.16.170, service of process on one defendant tolls the statute of limitation as to unserved defendants. We hold it does.
The facts are not at issue. In 1984, Michael Sidis, a restaurant cook, was injured when a table-side, alcohol-burning stove exploded as he was refueling it. In 1986, he filed a personal injury action against Brodie/Dohrmann, the company which sold the stove to the restaurant; Spring, the Swiss manufacturer of the stove; and Cambridge, the importer. Timely service was made on Brodie/Dohrmann. Spring and Cambridge were brought into the action less than 3 years after the injury by means of a third party complaint filed against them by Brodie/Dohrmann, but were not served by Sidis during that period.
Sidis argued that service on Brodie/Dohrmann tolled the statute of limitation as to all defendants named in the complaint because RCW 4.16.170, the tolling statute, states: "[T]he plaintiff shall cause one or more of the defendants to be served ... within ninety days from the date of filing the complaint." The trial court granted summary judgment in favor of Brodie/Dohrmann on the issue of duty and in favor of Spring and Cambridge on the basis that service on Brodie/Dohrmann did not toll the statute of limitation against them, and therefore, they were not timely served. Sidis appealed. In Sidis v. Brodie/Dohrmann, Inc., 58 Wash.App. 665, 669, 794 P.2d 1309 (1990), the Court of Appeals decided the statutory language was ambiguous, stating:
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....
The court went on to affirm the summary judgment for Spring and Cambridge based on the running of the statute of limitation.
Lesta Clark's son was killed by Dexter Pinkman in a pedestrian/automobile accident. Clark timely filed a complaint for death of a child against Pinkman and the State of Washington. The State was served on the 90th day after filing, but Pinkman was not served until over a week later. The parties stipulated to the State's dismissal, but the trial court denied Pinkman's motion for dismissal. The Court of Appeals granted review and, in an unpublished opinion, dismissed the case against Pinkman based on the Sidis interpretation of RCW 4.16.170. See Clark v. Pinkman, noted at 59 Wash.App. 1002 (1990).
The statute in question states:
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, 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 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.) RCW 4.16.170. As the Court of Appeals observed, the phrase "one or more of the defendants" has been part of the law of Washington relating to the commencement of civil actions since 1895. See Sidis, 58 Wash.App. at 670-71, 794 P.2d 1309.
The general rule governing our approach to statutory construction is clear:
In judicial interpretation of statutes, the first rule is Snohomish v. Joslin, 9 Wn.App. 495, 498, 513 P.2d 293 (1973). This court will not construe unambiguous language. Vita Food Prods., Inc. v. State, 91 Wn.2d 132, 134, 587 P.2d 535 (1978)....
King Cy. v. Taxpayers of King Cy., 104 Wash.2d 1, 5, 700 P.2d 1143 (1985).
Even though there is a clumsy mixture of tenses in the statute, the meaning is clear. Contrary to the opinion of the Court of Appeals, we believe the language of RCW 4.16.170 to be straightforward and unambiguous: "[O]ne or more of the defendants" must be served in order to toll the statute of limitation. The presence of the words "one or more of" in the various predecessors to RCW 4.16.170 indicates that at some time the possibility of multi-defendant actions was considered; otherwise, those words would not appear. Moreover, if in enacting the present tolling statute the Legislature had intended to require that all defendants be served within 90 days, the words "one or more of" could simply have been omitted, and the statute would read: "[T]he plaintiff shall cause the defendants to be served".
The Court of Appeals found a literal reading of RCW 4.16.170 unacceptable because such a reading "would permit a plaintiff to extend the statute of limitations indefinitely against multiple defendants merely by serving one defendant." Sidis, 58 Wash.App. at 672, 794 P.2d 1309. We disagree. While it is true that RCW 4.16.170, literally read, tolls the statute of limitation for an unspecified period, that period is not infinite, as the court implied. Plaintiffs must proceed with their cases in a timely manner as required by court rules, and must serve each defendant inorder to proceed with the action against that defendant. A plaintiff who fails to serve each defendant risks losing the right to proceed against unserved defendants if the served defendant is dismissed, as occurred in Fittro v. Alcombrack, 23 Wash.App. 178, 180, 596 P.2d 665 (1979):
Because the action against Alcombrack [who was timely served] was dismissed before State Farm was served, the action against Alcombrack no longer tolled the statute of limitations either as to Alcombrack...
To continue reading
Request your trial
-
Bosteder v. City of Renton
...or § 1983 violations. We find neither argument convincing. 1. The statute of limitations argument ¶ 54 In Sidis v. Brodie/Dohrmann, Inc., 117 Wash.2d 325, 329, 815 P.2d 781 (1991), this court read RCW 4.16.17017 literally to mean that service on at least defendant before the statute of limi......
-
Custody of Smith, In re
...means exactly what it says." State v. McCraw, 127 Wash.2d 281, 288, 898 P.2d 838 (1995) (quoting Sidis v. Brodie/Dohrmann, Inc., 117 Wash.2d 325, 329, 815 P.2d 781 (1991)). Both RCW 26.10.160 and RCW 26.09.240 address the rights of nonparents to seek visitation with a child. Both statutes h......
-
Crosby v. County of Spokane
...days. North St. Ass'n v. City of Olympia, 96 Wash.2d 359, 635 P.2d 721 (1981), disapproved on other grounds by Sidis v. Brodie/Dohrmann, Inc., 117 Wash.2d 325, 815 P.2d 781 (1991). In a number of cases where joinder did not occur within the limitations period, the issue has arisen as to whe......
-
Beal for Martinez v. City of Seattle
...North St. Ass'n v. City of Olympia, 96 Wash.2d 359, 368, 635 P.2d 721 (1981), disapproved on other grounds by, Sidis v. Brodie/Dohrmann, Inc., 117 Wash.2d 325, 815 P.2d 781 (1991). The trial court and the Court of Appeals considered both rules in deciding the propriety of the amendment in t......
-
Table of Cases
...Shields v. Spokane Sch. Dist. No. 81, 31 Wn.2d 247, 196 P.2d 352 (1948): 19.3(1), 19.3(2), 19.3(5)(d) Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 815 P.2d 781 (1991): 15.3(2) Silver Surprize, Inc. v. Sunshine Mining Co., 15 Wn. App. 1, 547 P.2d 1240 (1976), aff'd, 88 Wn.2d 64, 558 P.2d 1......
-
§ 15.3 - Pitfalls for Plaintiffs and Potential Defenses
...were published, and the court affirmed dismissal of the action. With regard to service of process, in Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 329, 815 P.2d 781 (1991), the court declared "the language of RCW 4.16.170 to be straightforward and unambiguous: 'One or more of the defendan......
-
Tegman v. Accident and Medical Investigations, Inc.: the Re-modification of Modified Joint and Several Liability by Judicial Fiat
...Id.; accord Morgan v. Johnson, 137 Wash. 2d 887, 891-92, 976 P.2d 619, 621 (1999); Sidis v. Brodie/Dohrmann, Inc., 117 Wash. 2d 325, 329, 815 P.2d 781, 782 (1991); see also Snohomish v. Joslin, 9 Wash. App. 495, 498, 513 P.2d 293, 296 (1973) ("Injudicial interpretation of statutes, the firs......
-
§3.7 Significant Authorities
...the statute of limitations with respect to all defendants, including those who have not been served. Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 329, 815 P.2d 781 (1991). The rule that timely service on one defendant in a multidefendant action tolls the statute of limitations with respec......