Opinion
No. 26072-1-III.
June 5, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-2-04111-3, Robert D. Austin, J., entered March 27, 2007.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Kulik, A.C.J., and Sweeney, J.
RCW 4.96.020(4) provides that no tort action may be commenced against a government entity until 60 days have elapsed after the claim was filed with the governing body. Here, the trial court ordered summary judgment dismissal of Dorothy Jones' tort claim against Spokane County (County), concluding she failed to wait the required 60 days before filing her lawsuit. Ms. Jones appeals, arguing that she satisfied the waiting period, but that even if she did not, she substantially complied with the statute. She also contends that RCW 4.96.020(4), as applied here, is unconstitutional. We affirm.
FACTS
On July 20, 2006 at 2:30 p.m., Ms. Jones, who was 83 years old at the time, served a tort claim notice on the Spokane County Office of Risk Management pursuant to RCW 4.92.020. In the notice she asked for damages resulting from an assault by two Spokane County deputy sheriffs. Ms. Jones alleged that in October 2004, she watched the two officers violently attack her son in front of her house. She yelled at them to stop. When the officers ignored her pleas, she came out to the yard. She alleged that as she stood by her door, one of the officers twisted her arm and pushed her to the ground.
On August 4, the office of risk management informed Ms. Jones by letter that it had completed its investigation of her police brutality claim and concluded the deputies had not violated departmental or legal guidelines in the performance of their duties.
RCW 4.96.020(4) requires a waiting period of 60 days between filing the tort claim and commencing a lawsuit. Ms. Jones waited until the 60th day, September 18, 2006 at 3:25 p.m., to file her complaint in superior court. In its answer, the County raised numerous affirmative defenses, including Ms. Jones' violation of the statutory 60-day waiting period.
On January 31, 2007, the County moved for summary judgment dismissal of Ms. Jones' tort claim, arguing that she failed to wait the full 60 days between the filing of the claim and the initiation of the lawsuit. The County argued that when computing the waiting period, the day the tort claim is filed is excluded; therefore the lawsuit was filed one day early. Ms. Jones countered that she strictly complied with RCW 4.96.020(4) because she waited more that 60 24-hour days to file the lawsuit. She calculated that the 60 days elapsed at 2:30 p.m. on September 18.
The trial court granted the County's motion, stating, "I am aware of the case law that says you lose if you haven't technically followed this [waiting period]. It seems like a very harsh result that does not fit the purpose. But I can't legislate that." Report of Proceedings (RP) at 18; see Clerk's Papers (CP) at 86. The court noted that the lawsuit was filed on the 60th day, but stated, "if you use normal calculations where you don't count the first day, and use an interpretation that until 60 days have elapsed . . . [filing] would be the 61st day." RP at 21. Ms. Jones appeals.
ANALYSIS
Our review of a trial court's decision on summary judgment is de novo. Castro v. Stanwood Sch. Dist. No. 401, 151 Wn.2d 221, 224, 86 P.3d 1166 (2004). A motion for summary judgment is proper where "there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law." CR 56(c). Summary judgment is granted only if reasonable persons could reach but one conclusion from all the evidence. Vallandighan v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).
The material facts in this case — the dates on which Ms. Jones filed her tort claim and lawsuit — are not disputed. Therefore, we are reviewing the trial court's interpretation of RCW 4.96.020(4). In doing so, we must discern the intent of the legislature, starting with the plain language of the statute and its ordinary meaning. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). Interpretation of a statute is reviewed de novo. Castro, 151 Wn.2d at 224.
RCW 4.96.020(4) provides, "No action shall be commenced against any local governmental entity . . . for damage arising out of tortious conduct until sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof." Ms. Jones contends that by filing the complaint on September 18 at 3:25 p.m., she waited more than 60 "24-hour" days by almost an hour, thus strictly complying with RCW 4.96.020(4). CP at 36. She asserts that the 60-day clock started when she filed her tort claim at 2:30 p.m. on July 20, and therefore the 60th day was September 18.
However, in Troxell v. Rainier Public School District No. 307, 154 Wn.2d 345, 350, 111 P.3d 1173 (2005), our Supreme Court rejected the same argument, stating that "[RCW 4.96.020(4)] does not permit a computation of 60 24-hour periods that would begin precisely when the claim notice is filed." Id. at 353 n. 4. In Troxell, the plaintiff filed her claim notice at 3:35 p.m. on December 10, 2001 and filed her lawsuit against the district on February 8, 2002 at 11:29 a.m. Id. at 348. The trial court granted the district's motion for summary judgment based on the plaintiff's failure to satisfy the 60-day waiting period. Id. at 349. The Court of Appeals reversed, concluding that the 60 days elapsed on the 60th day, which was February 8, reasoning that the waiting period was satisfied by the passage of 59 calendar days between the filing dates of the notice and complaint. Id.
Our Supreme Court framed the issue as "whether the statute imposes a waiting period of 60 full days . . . or may be satisfied by 59 days and some fraction of a 60th day." Id. at 352. It concluded, "the plain language of RCW 4.96.020(4) requires a waiting period of 60 full calendar days between the filing of the claim notice and the commencement of legal action." Id. In arriving at this conclusion, the court rejected the plaintiff's computation of a day as a 24-hour period, commencing when the tort claim was filed. Instead, the court viewed a calendar day as a 24-hour period beginning at midnight. Id. The court noted that this interpretation comported with the general rule that "'[w]here it is provided that a certain result shall not accrue until after the expiration of a given number of days from a stated date, then both the first and last days must be excluded, so that the full number of days will be allowed.'" Id. (quoting 74 Am. Jur. 2d Time § 15 (2001 Supp. 2004) (emphasis in original)). Using this method of computation, the court concluded that the earliest the plaintiff could have filed her lawsuit was February 9. Id. at 352.
Applying this method here, we conclude that Ms. Jones did not wait a full 60 days between the filing of her tort claim and her lawsuit. If we exclude the day Ms. Jones filed her tort claim, July 20, only 59 calendar days elapsed before she filed her lawsuit on September 18. But Troxell is clear that the first day after 60 days have elapsed is the 61st day. Thus, the earliest Ms. Jones could have filed her lawsuit was September 19.
Nevertheless, Ms. Jones argues that summary judgment is improper because even if she failed to wait the full 60 calendar days, she substantially complied with RCW 4.96.020(4). She notes that the purpose of the statute, which is to give the government time to investigate or settle the claim, was met here because the County informed her that it had completed its investigation and was denying her claim shortly after she filed her tort claim. In view of the satisfaction of the statute's purpose, she claims the County cannot claim to be prejudiced by the loss of 1 hour and 25 minutes during the business day to attempt settlement. Citing Troxell, 154 Wn.2d 345 and Medina v. Public Utility District No. 1, 147 Wn.2d 303, 53 P.3d 993 (2002), the County argues that the 60-day waiting period must be strictly observed; therefore, the doctrine of substantial compliance does not apply.
The County is correct. Medina is dispositive on the issue. In that case, the plaintiff filed a tort claim against Benton County. Six days later, the county denied his claim. Medina, 147 Wn.2d at 308. Four days before expiration of the waiting period prescribed by RCW 4.96.020(4), the plaintiff filed his lawsuit against the county. The county successfully moved for summary judgment dismissal of the claim based on the plaintiff's violation of the waiting period. The Court of Appeals affirmed. Id. at 308.
On appeal, the plaintiff did not dispute that he violated the 60-day waiting period, but claimed he had substantially complied with the purpose of the statute, which was to give the governmental entity time to investigate and settle the case. He argued, as does Ms. Jones, that once the county denied his claim, the purpose of the statue was met, and there was no reason to preclude early filing of the suit if the county was not using the time to investigate the claim.
Our Supreme Court disagreed, holding, "where time requirements are concerned, this court has held that 'failure to comply with a statutorily set time limitation cannot be considered substantial compliance' with the statute." Medina, 147 Wn.2d at 317 (quoting City of Seattle v. Pub. Employment Relations Comm'n, 116 Wn.2d 923, 929, 809 P.2d 1377 (1991)). It emphasized that, "[c]ompliance with a waiting period can be achieved only through meeting the time requirements of the statute." Id. (emphasis added). In view of this case, Ms. Jones' substantial compliance argument fails. We are constrained to conclude that Ms. Jones failed to comply with the filing requirements of RCW 4.96.020(4).
Ms. Jones next argues that RCW 4.96.020 as applied violates the privileges and immunities prohibition of the Washington State Constitution. Citing Hunter v. North Mason High School and School District No. 403, 85 Wn.2d 810, 539 P.2d 845 (1975), Ms. Jones argues that "[s]tatutes that discriminate between victims of governmental and nongovernmental tortfeasors are constitutional only if there is, at minimum, a substantial reason for [discrimination]." Br. of Appellant at 8. She contends that to survive equal protection challenges, claim filing statutes must have a rational purpose for discriminating against government tort victims. She points out that there is no rational basis to dismiss her claim because the government (1) stated it was denying her claim and (2) was denied only 1 hour and 25 minutes of a business day to settle the claim.
At the outset, it should be noted that Ms. Jones' briefing on this issue is inadequate because she fails to set out the constitutional provisions or specifically discuss them. In any event, a substantially similar claim was rejected by the Supreme Court in Medina, which held that RCW 4.96.020(4) as applied to similar facts was constitutional. Medina, 147 Wn.2d at 319. In that case, the plaintiff argued that the 60-day waiting requirement of RCW 4.96.020(4) was unconstitutional because once a claim has been denied there is no reason to require a tort claimant to wait to file suit. Id. at 311. The plaintiff argued, as does Ms. Jones, that the enforcement of the 60-day waiting period violates equal protection because it treats governmental and private tort victims differently without a reasonable relationship between the waiting period and the purpose of the statute. Id. at 313.
The court upheld the constitutionality of chapter 4.96 RCW, finding a rational relationship existed between the purpose of the statute and the waiting period. Id. The court also reasoned that the plaintiff failed to explain how he was burdened by the waiting period, particularly in light of the tolling provisions of the statute. Id. at 314. Because the plaintiff failed to show that the classification was purely arbitrary and that the statute constituted a real impediment on governmental tort victims, the court concluded that he failed to establish that the 60-day waiting period violates equal protection. Id. For the same reasons, Ms. Jones fails to meet her burden to show that chapter 4.96 RCW as applied here is unconstitutional.
ATTORNEY FEES
The County asks for costs and statutory attorney fees. Assuming compliance with RAP 18.1, the County, as the prevailing party, is entitled to statutory attorney fees and costs on appeal pursuant to RCW 4.84.080.
CONCLUSION
The trial court did not err in granting summary judgment in favor of the County. We therefore affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J., and KULIK, J., concur.