FILED
NOVEMBER 16, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
WILLIAM RUMBURG and CAROL ) No. 34572-6-111
RUMBURG, husband and wife and the )
marital community comprised thereof, )
)
Appellants, ) ORDER WITHDRAWING
) OPINION
V. )
)
FERRY COUNTY PUBLIC UTILITY )
DISTRICT #1, A PUBLIC UTILITY )
COMPANY; and JOHN DOE(S), )
)
Respondents. )
THE COURT on its own motion finds that the opinion filed November 16, 2017,
should be withdrawn. Therefore,
IT IS ORDERED, the court's opinion filed November 16, 2017, is hereby
withdrawn and a new opinion will be filed this day.
PANEL: Judges Siddoway, Pennell, Korsmo
FOR THE COURT:
FILED
NOVEMBER 16, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
WILLIAM RUMBURG and CAROL )
RUMBURG, husband and wife and the ) No. 34572-6-111
marital community comprised thereof, )
)
Appellants, )
)
v. ) PUBLISHED OPINION
)
FERRY COUNTY PUBLIC UTILITY )
DISTRICT #1, A PUBLIC UTILITY )
COMPANY; and JOHN DOE(S), )
)
Respondents. )
SIDDOWAY, J. -At issue is whether William and Carol Rumburg timely filed suit
under tolling and grace periods provided by RCW 4.96.020, the local government tort
claim filing statute. After serving a second notice of claim on local government
defendants and allowing 60 days for the defendants to respond, the Rumburgs relied on
the statutory 5-day grace period in filing suit. The respondents contend that the 5-day
grace period could apply only after the Rumburgs' first, early, notice of claim.
In resolving reasonable questions about how the tolling provision operates, the
Washington Supreme Court has provided a bright-line clarification, repeated several
times in published decisions, that the tolling provision adds 60 days to the end of the
No. 34572-6-111
Rumburg v. Ferry County PUD #1
otherwise applicable statute of limitations. Given this construction of the statute and its
2009 amendment requiring procedural requirements to be "liberally construed so that
substantial compliance will be deemed satisfactory," we construe RCW 4.96.020(4) to
apply the 5-day grace period after the 60-day extension of the statute of limitations. The
Rumburgs' action was timely.
PROCEDURAL BACKGROUND
On July 16, 2012, William Rumburg suffered injuries at an event in Republic City
Park from the collapse of a tent set up by Ferry County Public Utility District No. 1
(PUD). Mr. Rumburg submitted a handwritten notice of tort claim to the PUD on
November 30, 2012.
Nearly two and a half years later, on June 28, 2015, the Rumburgs had their first
consultation with their current lawyer. The lawyer, unaware of the earlier notice of tort
claim, filed a second notice of claim on July 14, 2015. Sixty-three days later, on
September 15, 2015, he filed a summons and complaint.
The PUD eventually filed a motion to dismiss the Rumburgs' action as time
barred, based on the more than 3 year and 60 day passage of time between Mr.
Rumburg's July 16, 2012 injury and the September 15, 2015 commencement of the
lawsuit. 1 The trial court granted the motion to dismiss. The Rumburgs appeal.
1
The parties do not dispute that the three year statute of limitations provided by
RCW 4.16.080 applies.
2
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ANALYSIS
In chapter 4.96 RCW, the legislature has waived the sovereign immunity of local
government entities and their officers, employees or volunteers, but has required that
"[f]iling a claim for damages within the time allowed by law shall be a condition
precedent to the commencement of any action claiming damages." RCW 4.96.010(1).
After a notice of a tort claim is presented to a local government defendant, the plaintiff
must wait until 60 days have elapsed before commencing a lawsuit. RCW 4.96.020(4).
"The purpose of this claim is 'to allow government entities time to investigate, evaluate,
and settle claims' before they are sued." Renner v. City of Marysville, 168 Wn.2d 540,
545,230 P.3d 569 (2010) (quoting Medina v. Pub. Util. Dist. No. 1 ofBenton County,
147 Wn.2d 303, 310, 53 P.3d 993 (2002)).
The notice of claim requirement would effectively shorten the limitations period
for tort claims against local government defendants by 60 days were it not for parallel
language in RCW 4.96.020(4) that tolls the period of limitations for 60 days.
Although it is never a good idea to wait to commence a lawsuit until shortly before
the statute of limitations expires, procrastination proved especially perilous for parties
suing local government defendants under former RCW 4.96.020(4) (2006). For a
plaintiff whose action would otherwise become time-barred in the 60 days following a
notice of claim, there was at most one day on which suit could be commenced without
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being too early (and violating the 60-day waiting rule) or being too late (and time-
barred). 2 The difficulty was illustrated in Medina.
In that case, the plaintiff filed his notice of tort claim for personal injury 2 days
before the statute of limitations would expire. Medina, 147 Wn.2d at 307. The county
denied the claim after only a week. Id. at 308. The plaintiff then waited until 56 days
had passed from the date of his notice of claim before filing suit. Id. Although his
lawsuit was timely under the statute of limitations given the 60-day tolling period, our
Supreme Court affirmed dismissal of the lawsuit because he commenced suit too soon: he
did not wait for the full 60-day waiting period to run. Id. at 307. The court refused to
construe the statute as creating a variable waiting period that ended in Mr. Medina's case
when the PUD denied his claim. Id. at 318.
In a dissenting opinion, Justice Chambers identified the problem with the identical
60-day waiting and tolling periods for plaintiffs who present a notice of claim within 60
days of the expiration of the statute of limitations. Because such actions would become
time-barred during the waiting period but for the companion tolling period-and because
the tolling period is exactly equal to, not longer than, the waiting period-"Medina was
2
We say "at most," because in Troxell v. Rainier Public School District No. 307,
the Supreme Court recognized that given its construction of the statute, a claimant who
waited until the last day of the original statute of limitations period to serve notice of a
claim would find it impossible to both comply with the waiting period and commence
suit before becoming time-barred. 154 Wn.2d 345, 356, 111 P.3d 1173 (2005); and see
id. at 364 (Chambers, J., dissenting).
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required by unyielding law to file his complaint on a single magic date; precisely 60 days
after the notice was filed .... No margin of error, according to the majority, is permitted,
even an error in favor of timely compliance." Medina, 147 Wn.2d at 327-28 (Chambers,
J., dissenting) (emphasis added).
In 2009, RCW 4.96.020(4) was amended. Arguably in response to this timing
difficulty for plaintiffs with claims against local government defendants, the amendments
provided a 5-day grace period. Statutory construction of that amendment and earlier-
enacted language identifying the 60-day waiting and tolling periods proves critical here.
Statutory interpretation is a question of law that we review de novo. Jametsky v.
Olsen, 179 Wn.2d 756,761,317 P.3d 1003 (2014). Our fundamental objective is to
ascertain and carry out the legislature's intent, and if a statute's meaning is plain on its
face, we give effect to that plain meaning as an expression of legislative intent. Dep 't of
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002) "If the
statutory language is susceptible to more than one reasonable interpretation, then a court
may resort to statutory construction, legislative history, and relevant case law for
assistance in discerning legislative intent." Christensen v. Ellsworth, 162 Wn.2d 365,
373, 173 P.3d 228 (2007).
Applying the statute to the facts of this case, we agree with the PUD that only the
Rumburgs' first, November 30, 2012 notice of claim triggered a 60-day waiting period.
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That result follows from the plain "first presented" language ofRCW 4.96.020(4)
highlighted below:
No action subject to the claim filing requirements of this section shall be
commenced . . . until sixty calendar days have elapsed after the claim has
first been presented to the agent of the governing body thereof.
(Emphasis added.) This is not a case in which the Rumburgs filed two substantively
different claims. Cf Medina, 147 Wn.2d at 310 (property and personal injury claims
were distinct and separate, and each was subject to RCW 4.96.020(4)).
The 60 days elapsing after the Rumburgs' claim was "first presented" ran from
November 30, 2012 to January 29, 2013, a period when they were not at risk of their
claim becoming time-barred and did not need the statute of limitations "tolled," in the
sense of "take[n] away," "ma[de] null," or "remove[d]." See WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY at 2405 (1993). In this respect, their case is like Castro V.
Stanwood School District No. 401, 151 Wn.2d 221, 86 P.3d 1166 (2004), in which a
student's notice of claim was presented to the school district well before the expiration of
any limitation period. The district argued that RCW 4.96.020 should be construed as
only tolling the statute of limitations if needed to carry a plaintiff to the end of the 60-day
waiting period. Castro, 151 Wn.2d at 223. Since the student did not need the 60-day
reprieve to avoid a time bar, the district argued he was not entitled to extend the
limitations period by 60 days. The Supreme Court disagreed. It concluded that the
legislature intended to assure a person injured by the negligence of a local government
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defendant the entire number of days provided by the three-year statute of limitations
period, and that days lost to the waiting period must be made up later. "Essentially, the
provision adds 60 days to the end of the otherwise applicable statute of limitations." Id.
at 226.
The fact that the Rumburgs did not enjoy a second 60-day period following their
second notice of claim is not what led to dismissal of their claims. Their lawyer, unaware
of the first notice of claim, assumed that the statute of limitations on the Rumburgs' claim
would expire on July 16, 2015. Given their right to have 60 days added, the limitations
period would expire instead on September 14, 2015. The Rumburgs are not contending
they were entitled to two 60-day tolling periods.
Rather, the parties' dispute is over whether the Rumburgs could claim the benefit
of a five-day grace period for filing suit, added by amendment in 2009. The following
sentence was added to RCW 4.96.020(4) by the 2009 legislation:
For the purposes of the applicable period of limitations, an action
commenced within five court days after the sixty calendar day period has
elapsed is deemed to have been presented on the first day after the sixty
calendar day period elapsed.
LAWS OF 2009, ch. 433, § 1.
The Rum burgs' lawyer waited 60 calendar days from the second notice of claim,
or until Sunday, September 13, 2015, and relying on the 5-day grace period filed the
summons and complaint on Tuesday, September 15. The last day to file without the 5-
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day grace period was Monday, September 14, 2015. The last day to file with the 5-day
grace period was Friday, September 18, 2015.
The language in the amendment to RCW 4.96.020(4) critical to this appeal is "an
action commenced within five court days after the sixty calendar day period has
elapsed." (Emphasis added.) There are arguably two "sixty calendar day period[s]"
addressed by the statute, since RCW 4.96.020(4) "has two subparts. One subpart sets the
time that a government entity must be given to investigate and settle a claim, and the
other tolls the statute of limitation during that time." Troxell v. Rainier Pub. 'Sch. Dist.
No. 307, 154 Wn.2d 345, 361, 111 P.3d 1173 (2005) (Chambers, J., dissenting). The
waiting period has been characterized as a period of "intervening days." Id. at 354-55.
By contrast, the tolling provision has been consistently characterized as "' add[ing] 60
days to the end of the otherwise applicable statute of limitations."' Id. at 349 n.2
(quoting Castro, 151 Wn.2d at 226); accord Estate of Connelly v. Snohomish County
Pub. Util. Dist. No. 1,145 Wn. App. 941,945,187 P.3d 842(2008). It was clear before
the 2009 amendment that the tolling provision added 60 days to the end of the otherwise
applicable statute of limitations, so it is not clear which "sixty calendar day period" the 5-
day grace period is intended to follow.
A new subsection (5) added to RCW 4.96.020 by the 2009 legislation tells us how
to construe the statute in the event its language is not clear:
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With respect to the content of claims under this section and all procedural
requirements in this section, this section must be liberally construed so that
substantial compliance will be deemed satisfactory.
LA ws OF 2009, ch. 433, § 1. Our Supreme Court has interpreted "substantial
compliance" in the context of claim filing statutes to require that the claimant make a
bona fide attempt to comply with the law and that its actions actually accomplish or
advance the statute's purpose. Renner, 168 Wn.2d at 545-46 (citing Brigham v. City of
Seattle, 34 Wn.2d 786,789,210 P.2d 144 (1949)).
The Rumburgs have demonstrated a bona fide attempt to comply with the law, and
the filing of a second, lawyer-prepared notice of claim following the earlier notice
handwritten by Mr. Rumburg advanced the statute's purpose. Liberally construing the
statute to allow for substantial compliance supports construing the 5-day grace period as
following the 60-day extension of the statute of limitations. 3
The PUD nonetheless argues that there is some evidence the legislature intended
the 5-day grace period to address the timing trap that arose only for claimants providing
late notices of claim, whose waiting period coincides with the 60 days added to the
otherwise applicable statute of limitations. In essence, the PUD argues that the 5-day
grace period was only intended to help tort claimants who "needed" the margin of error.
3
Construing RCW 4.96.020(4) in this way is different from holding that a tort
claimant can substantially comply with the statute of limitations. We agree with the PUD
that allowing substantial compliance with the limitations period provided by RCW
4.16.080 would be problematic.
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But construing the statute as extending the benefit of the 5-day grace period to all tort
claimants is consistent with the Supreme Court's earlier construction ofRCW
4.96.020(4) as extending the benefit of an additional 60 days to all tort claimants, not just
those who "needed" the extra 60 days. Local governments cannot reasonably complain
about a merely 5-day margin of error being extended to all tort claimants.
We reverse the trial court's dismissal of the Rumburgs' complaint and remand for
further proceedings.
?J~w=()
oway, J.
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WE CONCUR:
Pennell, J.
10