Wakeman v. Lommers

• Decision Date: 30 November 1992
• Docket Number: No. 24568-6-I,24568-6-I
• Citation: 67 Wn.App. 819,840 P.2d 232
• Court: Washington Court of Appeals
• Parties: Rose WAKEMAN, Respondent, v. Pam LOMMERS and John Doe Lommers, husband and wife, and the marital community composed thereof, Appellants, and Deanna Taylor and John Doe Taylor, husband and wife, and the marital community composed thereof, Defendants.

Page 819

67 Wn.App. 819

840 P.2d 232

Rose WAKEMAN, Respondent, v. Pam LOMMERS and John Doe Lommers, husband and wife, and the

marital community composed thereof, Appellants,

and

Deanna Taylor and John Doe Taylor, husband and wife, and the

marital community composed thereof, Defendants.

No. 24568-6-I.

Court of Appeals of Washington,

Division 1.

Nov. 30, 1992.

Review Denied March 31, 1993.

Deborah L. Martin, Ralph J. Brindley, Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, for appellants.

Gordon A. Woodley, Woodley Law Offices, Bellevue, for respondents.

BAKER, Judge.

This matter is on remand from the Supreme Court for reconsideration in light of its decision in Sidis v. Brodie/Dohrmann, Inc., 117 Wash.2d 325, 815 P.2d 781 (1991). The issue presented is whether service on a defendant in one cause of action tolls the statute of limitations as to another defendant on a different cause of action, where the two causes of action have been joined in one lawsuit on the basis of a common question of fact. Sidis held that under RCW 4.16.170, service of process on one defendant in a multidefendant action within 90 days of filing the complaint tolls the statute of limitation as to remaining unserved defendants. Sidis, 117 Wash.2d at 329, 815 P.2d 781. Although the instant case involves arguably distinguishable facts, we are constrained by the broad holding in Sidis and must apply it here.

I

Rose Wakeman was injured in two separate motor vehicle accidents. The first involved Pam Lommers; the second involved Deanna Taylor and occurred less than 8 months later. A complaint naming both Lommers and Taylor as defendants was filed 1 day before the 3-year statute of limitations ran on the Lommers incident. Taylor was served within 10 days of the filing of the complaint. After numerous attempts, Lommers was served on January 25, 1989, more than 90 days after the complaint was filed.

Lommers moved for summary judgment on a statute of limitations defense. The trial court denied the motion.

Lommers moved in this court for discretionary review, which was granted. ¹ In an unpublished opinion, this court reversed the trial court and dismissed the case against Lommers ² based on this court's decision in Sidis v. Brodie/Dohrmann, Inc., 58 Wash.App. 665, 794 P.2d 1309 (1990), rev'd, 117 Wash.2d 325, 815 P.2d 781 (1991). Wakeman filed a petition for review which was granted by the Supreme Court, but consideration was deferred pending the Supreme Court's review of Sidis. Upon issuing its opinion reversing this court in Sidis, the Supreme Court remanded the instant case to this court for reconsideration in light of that opinion. 117 Wash.2d 1023, 819 P.2d 369.

II

RCW 4.16.170, the tolling statute construed in Sidis, 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, 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.

(Emphasis added.)

Lommers and Taylor were joined under the successive tort feasor doctrine, that is, their negligent acts were wholly unrelated in time and causation, but allegedly one indivisible harm was produced. See Phennah v. Whalen, 28 Wash.App. 19, 24, 621 P.2d 1304 (1980), review denied,95 Wash.2d 1026 (1981). Thus, the basis for the joinder in this action was a common factual issue relating to the segregation of damages.

A different basis for the joinder of multiple defendants existed in Sidis. That case involved a single incident in which there was alleged negligence by more than one party. See Sidis, 117 Wash.2d at 327, 815 P.2d 781. The basis for joinder was that the defendants were concurrent tort feasors, that is, the negligence of one defendant set into motion a series of events upon which the other's negligence acted so as to produce the final result. See Phennah, 28 Wash.App. at 23-24, 621 P.2d 1304.

On this basis, Lommers makes a cogent argument that Sidis could be distinguished from the instant case. Sidis involved a single cause of action against multiple defendants; ³ the instant case involves two causes of action against two separate defendants. The fact that more than one cause was joined in the instant case would not necessarily make it a "multidefendant" action for purposes of tolling the statute of limitations under RCW 4.16.170, as that term is used in Sidis. Sidis, 117 Wash.2d at 329-30, 815 P.2d 781. Rather, the phrase "one or more of the defendants", as it appears in RCW 4.16.170 and as it was interpreted in Sidis, could be construed to refer to single causes of action with multiple defendants. If Sidis were so construed, the 3-year statute of limitations as to the cause of action against Lommers would not be tolled for purposes of RCW 4.16.170.

Such an interpretation would serve the purposes of the statute of limitations to protect parties against stale claims because they are more likely to rely upon untrustworthy evidence than are fresh claims, and to instill a measure of certainty and finality into one's affairs by eliminating the fear of threatened litigation. See Kittinger v....