Smith v. Jackson

• Citation: 106 Wn.2d 298,721 P.2d 508
• Decision Date: 26 June 1986
• Docket Number: No. 52082-8,52082-8
• Parties: Elizabeth SMITH, a single person, Plaintiff, v. Richard Paul JACKSON and Chris Van Ackeren, Appellants, Richard Paul JACKSON and Marian Sharp Smith and "John Doe" Smith, husband and wife, and the marital community thereof, et al., Appellants, v. PIERCE COUNTY, a political subdivision of the State of Washington, et al., Respondents.
• Court: United States State Supreme Court of Washington

Page 298

106 Wn.2d 298

721 P.2d 508

Elizabeth SMITH, a single person, Plaintiff, v. Richard Paul JACKSON and Chris Van Ackeren, Appellants, Richard Paul JACKSON and Marian Sharp Smith and "John Doe"

Smith, husband and wife, and the marital community

thereof, et al., Appellants, v. PIERCE COUNTY, a political subdivision of the State of

Washington, et al., Respondents.

No. 52082-8.

Supreme Court of Washington En Banc.

June 26, 1986.

Richard J. Jensen, P.S., Richard Jensen, Michael Swanson, Tacoma, for appellants.

Albertson & Smith, Douglas Smith, Tacoma, for appellant Smith.

William Griffies, Pierce County Prosecutor, Douglas Vanscoy, Deputy, Tacoma, for respondent Pierce County.

DORE, Justice.

This case presents the issue of whether a defendant in a tort action can maintain an action for contribution against other joint and several tortfeasors after the statute of limitation on the original claim has run. We hold he can pursuant to RCW 4.22, and therefore reverse the trial court's summary judgment order dismissing this contribution action.

FACTS

On 24 February 1979, a car driven by Marian Smith collided with a car driven by Richard Jackson. Marian's daughter, Elizabeth, and mother, Mabel Sharp, were injured in the crash and Marian's father was killed. On 19 February 1982, just 5 days before the statute of limitation ran, Elizabeth brought a suit against Jackson. On 30 March 1982, Jackson answered the complaint brought by Elizabeth and brought a third party complaint against Marian (Elizabeth's mother) as the driver of the other automobile.

The original action between Elizabeth and Jackson was eventually settled on 11 March 1983 for $62,500. The Pierce County trial court ruled that the amount of settlement was reasonable, and also, specifically held that Jackson's right of contribution, if any existed, was preserved. Jackson proceeded to prepare his case against Marian, with the intent to receive contribution for some of the $62,500 he had paid Marian's daughter.

During this preparation, both Marian and Jackson became aware that one of the factors causing their accident may have been the defective design of the road. This was possible as the accident occurred when Marian made a left Pierce County moved for summary judgment on the grounds that the statute of limitation had run on the original action which Elizabeth, could have brought against the County. The County reasoned that as it could not be liable to the plaintiff, it did not have to contribute to the other tortfeasors. The trial court granted the County's motion. Subsequently, Marian also brought a summary judgment motion against Jackson, also claiming that the statute of limitation had run when she was brought in as third party defendant in Jackson's contribution action. This was also granted. Jackson appealed those decisions to the Court of Appeals which were subsequently transferred here.

                turn in front of Jackson, but because of a dip in the road, she could not see his car approaching until immediately before the collision.   Therefore, both Marian and Jackson filed third party complaints against Pierce County on 21 June 1983 and 27 July 1983.   These complaints were within 1 year of the date of the original settlement
                

ANALYSIS

The right of contribution has been established in the state of Washington by statute. RCW 4.22.040 states:

(1) A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury, death or harm, whether or not judgment has been recovered against all or any of them. It may be enforced either in the original action or by a separate action brought for that purpose ...

(2) Contribution is available to a person who enters into a settlement with a claimant only (a) if the liability of the person against whom contribution is sought has been extinguished by the settlement ...

This statute has retroactive effect in this action as no trial has yet occurred. RCW 4.22.920.

The County and Marian have argued that this statute does not apply to them because the original statute of limitation had run prior to Jackson's filing third party complaints against them. The County and Marian reasoned In Glass, we held that a manufacturer of a machine which tortiously injured an employee covered by workers' compensation could not bring an action for contribution against the employer. We reasoned that because of the workers' compensation act, the employer was immunized from liability for the injuries to the employee. Therefore, since no liability could exist between the plaintiff and the third party defendant, no contribution right in favor of the manufacturer would arise. Glass, at 887, 652 P.2d 948.

                that once the statute of limitation ran, they could not be liable to the plaintiff, and therefore, they were not "jointly and severally liable upon the same indivisible claim for the same injury ..." RCW 4.22.040.   The trial court agreed with this contention, based in part on this court's decision in  Glass v. Stahl Specialty Co., 97 Wash.2d 880, 652 P.2d 948 (1982)
                

The trial court in this case read our holding in Glass for two propositions. First, RCW 4.22.040(1) does not create an independent cause of action between the defendant and the third party defendant. This is correct as otherwise in Glass we would not have allowed the third party employer to use the workers' compensation system as a means of immunizing himself from a separate contribution claim by the manufacturer.

The second proposition on which the trial judge relied is clearly incorrect. The judge stated that he believed "that if the initial claim is barred by the statute of limitations there is no right of contribution between these defendants ..." Verbatim Report of Proceedings, at 5. The effect of this ruling would be to allow the plaintiff to pick and choose among joint tortfeasors to determine which defendants should bear the entire loss without contribution.

Such a result would be unfair and against the policies of both RCW 4.22 and CR 14(a) (joinder of parties) when considering whether Jackson's claim against Marian should be allowed. Elizabeth's complaint was filed before the settlement occurred, just 5 days before the statute of limitation ran. As a result Jackson could not have timely Furthermore, the overwhelming majority of jurisdictions have held that a named defendant may bring a contribution action against a third party, even if the statute of limitation would have precluded a direct suit between the plaintiff and the third party. See Annot., When Statute of Limitations Commences To Run Against Claim for Contribution or Indemnity Based on Tort, 57 A.L.R.3d 867 (1967). The rule, well described by the California Supreme Court in People ex rel. Dep't of Trans. v. Superior Court, 26 Cal.3d 744, 748, 608 P.2d 673, 676, 163 Cal.Rptr. 585 (1980) states:

                filed his complaint against Marian.   To allow a plaintiff in a case such as this the right to recover from one joint tortfeasor and, at the same time, preclude any contribution from another joint tortfeasor because of

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