Vasey v. Snohomish County

• Decision Date: 16 June 1986
• Docket Number: No. 13453-1-I,13453-1-I
• Citation: 721 P.2d 524,44 Wn.App. 83
• Court: Washington Court of Appeals
• Parties: Gary VASEY and Joan Vasey, husband and wife, and Gary Vasey as Guardian ad litem of Deborah Vasey, a minor, Respondents, v. SNOHOMISH COUNTY, Appellant.

Page 83

44 Wn.App. 83

721 P.2d 524

Gary VASEY and Joan Vasey, husband and wife, and Gary Vasey as Guardian ad litem of Deborah Vasey, a minor, Respondents, v. SNOHOMISH COUNTY, Appellant.

No. 13453-1-I.

Court of Appeals of Washington Division 1.

June 16, 1986.

Seth R. Dawson, Snohomish County Pros. Atty., Edward F. Level, Arden J. Bedle, Deputy Pros. Attys., Everett, Wash., for appellant Snohomish Co.

Charles Moren, Seattle, Wash., for respondent Gary and Joan Vasey.

COLEMAN, Judge.

Snohomish County appeals a judgment entered against it in an action for damages brought by Gary and Joan Vasey. The County argues that the trial court erred by not imputing the negligence of Gary Vasey to reduce Joan Vasey's recovery for lost earnings, medical expenses, and the value of the Vasey vehicle. The County also argues that RCW 4.22.020, which deals with imputation of contributory fault, is unconstitutional because it violates article 1, section 12; article 2, section 37; and article 2, section 19 of the state constitution. The Vaseys argue that the appeal is frivolous and request the imposition of terms.

STATEMENT OF FACTS

On January 1, 1981, Gary Vasey, his wife Joan, and their daughter Deborah drove to Everett to visit Mr. Vasey's father. After their visit they were involved in a car accident in which the Vasey car left the road and struck some rocks in the right-of-way. Gary and Deborah's injuries were relatively minor, but Joan Vasey's injuries were extensive, involving permanent damage to one hip. The vehicle was a total loss, its value stipulated at $3,900.

Gary and Joan Vasey sued Snohomish County, alleging that it was negligent in its signing and maintenance of the road. The County answered that it was not negligent, and by counterclaim argued that Gary Vasey's negligence was the sole proximate cause of the accident. The County asked for contribution from Gary in an amount reflecting the percentage of his negligence.

Joan Vasey did not sue Gary Vasey. The Vaseys moved, pursuant to RCW 4.22.060, that the court determine that a $25,000 settlement of a claim by Joan against Gary was reasonable. At a hearing on this matter, the court determined that the settlement was reasonable, discharged Gary from liability for contribution to the County, and provided that any recovery by Joan against the County would be reduced by $25,000.

A trial was held. The jury returned a special verdict which found that the County was 20 percent negligent and Gary Vasey was 80 percent negligent. The jury awarded Joan Vasey $100,000 for pain and suffering, $25,000 for past and future medical expenses, and $800 for the reasonable value of earnings lost. The jury also found that the Vasey car was valued at $3,900. The trial court entered judgment for Joan for $102,750 and for Gary for $419.50. In calculating this amount, the trial court reduced Gary's recovery (which consisted of his medical expenses and half the value of the automobile) by 80 percent. ¹ The trial court did not reduce Joan Vasey's recovery by 80 percent but did subtract the $25,000 settlement from the amount of the judgment against the County.

On appeal the County raises several issues. First, the County argues that the trial court erred in failing to reduce the award to Joan Vasey by 80 percent. ² Next, the County argues that even if RCW 4.22.020 applies to this action and denies imputation of contributory fault, the statute is unconstitutional for several reasons and may not be applied. The County argues that the statute violates the prohibition against special privileges and immunities, the statute amends certain statutes without setting them forth in the text of the act, and the bill enacting the statute contains more than one subject which is not expressed in its title.

The County first contends that the trial court erred by not reducing by 80 percent Joan Vasey's recovery for her medical expenses, lost earnings, and the value of the vehicle.

Generally, a plaintiff's action for damages is not barred or reduced because of the negligence of a third person. Restatement (Second) of Torts § 485 (1965). One old and now disfavored exception to this was a rule which imputed contributory negligence based solely on the marital relationship. Under this rule, one spouse's negligence would be imputed to the other spouse to bar recovery. The rule arose out of the common law concept that the wife's legal identity merged with that of her husband, so that each was charged with the negligence of the other. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts §§ 74, 122 (5th ed. 1984). Modernly, however, the law recognizes the separate legal identifies of the spouses, and one person's contributory negligence will not be imputed to another merely on the basis of the marital relationship. ³

An exception to the general demise of imputed contributory negligence exists in certain community property jurisdictions where the damages recoverable by either spouse would be characterized as community property. Because both spouses would have an interest in such damages, these jurisdictions continue to impute the negligence of one spouse to the other "in order to prevent the negligent party from profiting as community owner by his own wrong." W. Keeton, supra at 531.

Initially, the law in Washington was that any recovery by a married person for injuries inflicted by a third-party tortfeasor was community property. Hawkins v. Front St. Cable Ry. Co., 3 Wash. 592, 28 P. 1021 (1892). In order to prevent the tortfeasor spouse from profiting from his own wrong, contributory negligence was imputed to the innocent spouse to bar recovery. Ostheller v. Spokane & Inland Empire R.R. Co., 107 Wash. 678, 182 P. 630 (1919); W. DeFuniak & M. Vaughn, Principles of Community Property § 83 (2d ed. 1971).

In 1973 the Legislature enacted a comparative negligence statute. Included in the bill was a section which stated:

The negligence of one marital spouse shall not be imputed to the other spouse to the marriage so as to bar recovery in an action by the other spouse to the marriage, or his or her legal representative, to recover damages from a third party caused by negligence resulting in death or in injury to the person.

Laws of 1973, 1st Ex. Sess., ch. 138, § 2, p. 949. This section was codified as RCW 4.22.020.

In 1981 the Legislature enacted the tort reform act. As part of this enactment, RCW 4.22.020 was amended to read:

The contributory fault of one spouse shall not be imputed to the other spouse or the minor child of the spouse to diminish recovery in an action by the other spouse or the minor child of the spouse, or his or her legal representative, to recover damages caused by fault resulting in death or in injury to the person or property, whether separate or community, of the spouse. In an action brought for wrongful death, the contributory fault of the decedent shall be imputed to the claimant in that action.

Finally, in 1984 the Washington Supreme Court overruled Hawkins and its progeny, holding that damages for pain and suffering are the separate property of the injured spouse, and damages for lost wages and medical expenses are community property to the extent they compensate the community. In re Marriage of Brown, 100 Wash.2d 729, 675 P.2d 1207 (1984).

The County's argument on appeal is that since Joan Vasey's recovery for medical expenses, lost wages, and the vehicle would be characterized as community property, that the community is the actual party recovering in this action. The County argues that the statute refers to an action "by [a] spouse", and therefore, the statute does not abolish imputation of negligence when an action is brought by the community. The County contends that since Joan Vasey's recovery is really an action by the community, Gary Vasey's negligence must be imputed to the community to diminish the recovery.

Before we reach the County's argument, however, we must determine which version of RCW 4.22.020 applies to this case. The Vasey accident occurred on January 1, 1981, before the 1981 statute was enacted. The County argues that the 1981 version of the statute is not retroactive and that, therefore, the 1973 version applies to this case. The issue is complicated by the fact that the 1981 statute says it applies to "all claims arising on or after July 26, 1981." RCW 4.22.920.

In Godfrey v. State, 84 Wash.2d 959, 530 P.2d 630 (1975), the court faced a similar argument regarding the 1973 statute. In that case, the cause of action arose prior to the 1973 statute's effective date but the trial was begun after the effective date. The court held that the 1973 statute would be applied retroactively because it related to the victim's remedy rather than the tortfeasor's liability for the consequences of his negligence. Statutes will be given retroactive application if they relate to practice, procedure, or remedies and do not affect contractual or vested rights. Nelson v. Department of Labor & Indus., 9 Wash.2d 621, 115 P.2d 1014 (1941); Marine Power & Equip. Co. v. Washington Human Rights Comm'n, 39 Wash.App. 609, 694 P.2d 697 (1985).

The 1981 amendments to RCW 4.22.020 did not alter the remedial orientation of the statute. We agree with the reasoning of Christie v. Maxwell, 40 Wash.App. 40, 696 P.2d 1256 (1985), which determined that the 1981 version of RCW 4.22.020, like the 1973 version, should be given retroactive application. Therefore, we now proceed to determine the proper application of the 1981 version of the statute to the facts of this case.

Although "the exact nature of a community has been somewhat less than crystal clear", Household Fin. Corp. v. Smith, 70 Wash.2d 401, 403, 423 P.2d 621 (1967), we have long held that a community is not a separate and distinct juristic entity. deElche v. Jacobsen, 95 Wash.2d 237, 622 P.2d 835 (1980); Household Fin. Corp. v. Smith, supra; Bortle v. Osborne, 155 Wash. 585, 285 P. 425 (1930); Bay...