Torkelson v. Roerick

• Decision Date: 18 December 1979
• Docket Number: No. 3450-II,3450-II
• Citation: 24 Wn.App. 877,604 P.2d 1310
• Parties: Joyce E. TORKELSON (formerly Joyce E. Taute), Appellant, v. Raymond ROERICK and Jane Doe Roerick, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 877

24 Wn.App. 877

604 P.2d 1310

Joyce E. TORKELSON (formerly Joyce E. Taute), Appellant, v. Raymond ROERICK and Jane Doe Roerick, husband and wife, Respondents.

No. 3450-II.

Court of Appeals of Washington, Division 2.

Dec. 18, 1979.

Terry L. Paine, Tacoma, for appellant.

Robert O. Conoley, Lane, Powell, Moss & Miller, Seattle, for respondents.

SOULE, Judge.

Joyce Torkelson has appealed the order of the trial court granting defendants' motion for summary judgment holding that the statute of limitations barred her tort claim. We affirm.

On December 1, 1970, plaintiff was injured in an automobile accident which she claims was caused by defendants' negligence. At this time she was 18 years old. Unless tolled by another statute, the applicable statute of limitations is 3 years from the date of the accident. RCW 4.16.080(2). The only facts relevant to plaintiff's appeal are contained in the following chronology:

May 14, 1970 RCW 26.28.010 amended granting

18-year-olds the right to bring

suit. (Later recodified as RCW

26.28.015(6))

October 6, 1970 Plaintiff's 18th birthday

December 1, 1970 Date of the accident

August 9, 1971 RCW 4.16.190 amended to toll

the statute of limitations until

the minor's 18th birthday

October 6, 1973 Plaintiff's 21st birthday

December 1, 1973 Three years from the date of the

accident

August 9, 1974 Three years from the effective

date of the amended tolling

statute

October 4, 1976 Plaintiff files suit

October 6, 1976 Three years after plaintiff's 21st

birthday.

At the time of the accident, RCW 4.16.190 tolled the statute of limitations until the minor's 21st birthday. ¹ This statute was amended effective August 9, 1971. See Laws of 1971, 1st Ex.Sess., ch. 292, § 74, p. 1653. The amended statute now tolls the statute of limitations only until the minor's 18th birthday. ² Plaintiff argues that the tolling statute in effect at the date of the accident, not the amended statute, applies to her claim. As such, she had until October 6, 1976, 3 years after her 21st birthday, to file suit. She argues that to apply the amended tolling statute to her, which went into effect several months after her claim arose, would result in an improper repeal of the 21-year-old tolling statute by implication. We disagree and hold that the new tolling statute began to apply to plaintiff on its effective date of August 9, 1971. Thus, the 3-year statute of limitations began to run against her claim on this date, and plaintiff had until August 9, 1974 to bring suit.

It is well accepted that statutes of limitation and other statutes providing exceptions to them are to be given prospective application only. E. g. O'Donoghue v. State, 66 Wash.2d 787, 790, 405 P.2d 258 (1965); Lane v. Department of Labor & Indus., 21 Wash.2d 420, 423, 151 P.2d 440 (1944). However, a new statutory limitation may operate on a claim that has accrued prior to the amendment of the statute of limitations by beginning to run as of the effective date of the amended statute. Earle v. Froedtert Grain and Malting Co., 197 Wash. 341, 346-47, 85 P.2d 264 (1938); Hanford v. King County, 112 Wash. 659, 661-62, 192 P. 1013 (1920) (citing Sohn v. Waterson, 84 U.S. (Wall.) 596, 21 L.Ed. 737 (1873)). See also Carscadden v. Territory of Alaska, 105 F.2d 377 (9th Cir. 1939); O'Donoghue v. State, supra ; Baer v. Choir, 7 Wash. 631, 638, 32 P. 776 (1893). ³ Such an interpretation is not held to be a retroactive application of a new statute since the critical date is the effective date of the amended statute, not the date on which the claim arose. Therefore, the full time allowed by the new statute is available to the plaintiff. See Earle v. Froedtert Grain and Malting Co., supra ; Hanford v. King County, supra. Likewise, when an exception to a statute of limitations is amended or repealed, the new limitation or exception begins to apply at the effective date of the new tolling statute. Lewis v. Lewis, 48 U.S. (How.) 776, 12 L.Ed. 909, 911 (1849); Jones v. Coal Creek Mining & Mfg. Co., 133 Tenn. 159, 180 S.W. 179, 183 (1915). See also 51 Am.Jur.2d, Limitations of Actions § 142 (1970).

We hold that the amended tolling statute began to apply to plaintiff on its effective date of August 9, 1971. Since plaintiff was 18 years old on that date, the statute of limitations was no longer tolled in her favor, and she had until 3 years from the effective date of the amended tolling statute to file suit. Since she did not bring her action prior to August 9, 1974, her claim is barred by the statute of limitations.

The order of the trial court granting defendants' motion for summary judgment is affirmed.

REED, Acting C. J., and PETRIE, J., concur.

1 Prior to 1971 RCW 4.16.190 read in part as follows:

"If a person entitled to bring an action mentioned in this chapter . . . be at the time the cause of action accrued . . . under the age of twenty one . . . the time of such disability shall not be a part of the time limited for...