FILED
MARCH 9, 2021
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
KYLIE HANSON, individually, )
) No. 37419-0-III
Respondent, )
)
v. )
)
MIRIAM GONZALEZ CARMONA and )
JOHN DOE CARMONA, husband and )
wife, individually, and the marital )
community comprised thereof, ) UNPUBLISHED OPINION
)
Petitioners. )
)
SOUTHEAST WASHINGTON OFFICE )
OF AGING AND LONG TERM CARE )
ADVISORY COUNCIL, a Washington )
non-profit corporation, )
)
Defendant. )
FEARING, J. — On discretionary review, we address a unique question: whether
RCW 4.96.010 and RCW 4.96.020(4), Washington’s municipal corporation claims-filing
statutes, violate the separation of powers doctrine because of a conflict with CR 3(a).
Defendant Miriam Gonzalez Carmona, a government entity employee, allegedly caused a
car accident that resulted in injuries to plaintiff Kylie Hanson. Hanson failed to file a
No. 37419-0-III
Hanson v. Gonzalez Carmona
pre-suit notice under RCW 4.96.020(4) within the statute of limitations. Carmona moved
for summary judgment dismissal based on Hanson’s omission of the statutory pre-suit
notice, which motion the trial court denied. We hold RCW 4.96.020(4) to be
constitutional in face of a separation of powers challenge. We also reject Hanson’s
argument that a claimant need not file a pre-suit notice on the municipality when the
claimant sues the government employee in her individual capacity but when the
employee committed the tort during the course of employment. We reverse the trial
court’s denial of summary judgment to Carmona.
FACTS
Kylie Hanson sues Miriam Gonzalez Carmona for an automobile accident. On
September 6, 2016, Carmona drove a vehicle that struck a car driven by Hanson in an
intersection in Spokane Valley. Carmona failed to obey a red traffic light and proceeded
into the intersection.
At the time of the collision, Miriam Gonzalez Carmona drove a car in the course
of her work with Southeast Washington Office of Aging and Long Term Care (SEW
ALTC), an agency on aging established pursuant to chapter 74.38 RCW. Eight
southeastern Washington counties created SEW ALTC through an interlocal agreement.
CP 17-18, CP 21. SEW ALTC is a local governmental entity. SEW ALTC owned the
Chevy Malibu driven by Carmona.
2
No. 37419-0-III
Hanson v. Gonzalez Carmona
PROCEDURE
On August 26, 2019, Kylie Hanson filed suit against Miriam Gonzalez Carmona
and an advisory council that oversees SEW ALTC. Kylie Hanson never filed a statutory
notice of claim with Carmona’s employer, SEW ALTC.
On October 7, 2019, Miriam Gonzalez Carmona and the advisory council brought
a motion for summary judgment seeking dismissal of the suit with prejudice. The two
defendants argued that Carmona’s employer, SEW ALTC, is a local governmental entity.
According to the defendants, Kylie Hanson needed to file a pre-suit tort claim with SEW
ALTC under RCW 4.96.020 before commencement of a lawsuit against Carmona. The
defendants also argued that the three-year statute of limitations had expired.
On October 28, 2019, Kylie Hanson filed an amended complaint that removed the
advisory council as a defendant. She did not substitute SEW ALTC as a defendant.
Miriam Gonzalez Carmona became the sole defendant. Hanson also removed in the
amended complaint any allegation that Gonzalez Carmona operated the vehicle within
the scope of her employment.
When responding to the summary judgment motion, Kylie Hanson did not contend
that Miriam Gonzalez Carmona worked outside the scope of her employment with SEW
ALTC at the time of the collision. Hanson argued, however, that Miriam Gonzalez
Carmona remained personally liable for the accident regardless of her employer.
3
No. 37419-0-III
Hanson v. Gonzalez Carmona
The trial court denied Miriam Gonzalez Carmona’s summary judgment motion.
The trial court ruled that the suit against Carmona individually could survive the lack of a
pre-suit government claim. We granted discretionary review of the ruling.
LAW AND ANALYSIS
Miriam Gonzalez Carmona contends that she is a government entity employee and
that Kylie Hanson needed to have filed a notice of claim under RCW 4.96.020(4) before
commencing a lawsuit against her since she performed her acts within the scope of her
employment. In response, Kylie Hanson argues six sometimes overlapping points. First,
Carmona remains personally and privately liable for her tortious conduct regardless of the
identity of her employer and regardless of whether she acted in the scope of her
employment. Second, because SEW ALTC need not be joined in this lawsuit, Hanson
need not supply Carmona or her employer a pre-suit tort claim. Third, any agreement by
the government entity or its insurer to indemnify and provide a defense to Carmona does
not convert this lawsuit into one against the government. Fourth, Carmona cannot rely on
the government claims-filing statute because Hanson dismissed any quasi-governmental
entity before the trial court issued its summary judgment denial. Fifth, CR 3(a) governs
the commencement of a lawsuit, and RCW 4.96.020(4) impermissibly conflicts with the
court rule. This argument asserts the separation of powers doctrine. Sixth, dismissal of
her claim against Carmona for the failure to serve a pre-suit notice violates Hanson’s
fundamental property rights. The first four contentions rely primarily on common law,
4
No. 37419-0-III
Hanson v. Gonzalez Carmona
and we conflate those four arguments for purposes of analysis. Hanson grounds the last
two arguments on constitutional principles, and we review those arguments together.
Statutory and Common Law
Two Washington statutes control our decision. First, RCW 4.96.010 declares:
(1) All local governmental entities, whether acting in a governmental
or proprietary capacity, shall be liable for damages arising out of their
tortious conduct, or the tortious conduct of their past or present officers,
employees, or volunteers while performing or in good faith purporting to
perform their official duties, to the same extent as if they were a private
person or corporation. Filing a claim for damages within the time allowed
by law shall be a condition precedent to the commencement of any action
claiming damages.
(Emphasis added.) In turn, RCW 4.96.020 reads, in part:
(1) The provisions of this section apply to claims for damages
against all local governmental entities and their officers, employees, or
volunteers, acting in such capacity.
(2) . . . All claims for damages against a local governmental entity,
or against any local governmental entity’s officers, employees, or
volunteers, acting in such capacity, shall be presented to the agent within
the applicable period of limitations within which an action must be
commenced.
....
(4) No action subject to the claim filing requirements of this section
shall be commenced against any local governmental entity, or against any
local governmental entity’s officers, employees, or volunteers, acting in
such capacity, for damages arising out of tortious conduct until sixty
calendar days have elapsed after the claim has first been presented to the
agent of the governing body thereof. The applicable period of limitations
within which an action must be commenced shall be tolled during the sixty
calendar day period.
(Emphasis added.) Similar statutes apply to claims brought against the State of
5
No. 37419-0-III
Hanson v. Gonzalez Carmona
Washington and the State’s employees. The statutes are alternatively called nonclaim
statutes, pre-suit notice statutes, and claims-filing statutes.
Washington courts have held that the claimant must file the statutory pre-suit
claim with the local government or the State for torts committed by an employee during
the scope of work for the government. Wright v. Terrell, 162 Wn.2d 192, 195, n.1, 170
P.3d 570 (2007); Hyde v. University of Washington Medical Center, 186 Wn. App. 926,
930, 347 P.3d 918 (2015); Woods v. Bailet, 116 Wn. App. 658, 665-66, 67 P.3d 511
(2003); Hardesty v. Stenchever, 82 Wn. App. 253, 261, 917 P.2d 577 (1996). The claim
statute extends to suits arising from the conduct of a government employee even if the
claimant only sues the employee. Hyde v. University of Washington Medical Center, 186
Wn. App. at 930-31 (2015).
The Washington Supreme Court, in Bosteder v. City of Renton, 155 Wn.2d 18, 117
P.3d 316 (2005), identified the purposes behind a government pre-suit notice statute. The
government should be afforded an opportunity to investigate and remedy any potential
claims prior to or in place of entrance of those claims into the judicial system. RCW
4.96.041 requires a local government to pay for the defense of its employee when the
plaintiff sues the employee for acts committed within the scope of her employment.
Thus, whether the plaintiff names the employee in the suit, the local government entity,
or both, the action will implicate the local government’s finances. In addition to RCW
4.96.041(2) demanding that the governmental entity provide a defense for an employee
6
No. 37419-0-III
Hanson v. Gonzalez Carmona
sued for an act committed in good faith and in the scope of her employment, RCW
4.96.041(4) directs the government entity to pay any judgment against such employee.
To avoid application of RCW 4.96.020(4), Kylie Hanson forwards the Washington
Supreme Court’s decision in Eastwood v. Horse Harbor Foundation, Inc., 170 Wn.2d
380, 241 P.3d 1256 (2010) for the proposition that an employee may be held personally
liable for her tortious conduct regardless if she committed the tort in the course of
employment. In that case, the Supreme Court reviewed a Court of Appeals decision that
held the lessor of real property could not recover for economic loss caused by the lessee’s
waste because the lessor’s remedies were those limited to remedies listed in the lease.
The Court of Appeals also ruled that the lessee’s employee could not be individually
liable for breach of contract. The Supreme Court reversed. The high court held that the
lessee held a tort duty to prevent waste independent of the parties’ contract. In turn, the
lessor could also recover tort damages from the employee responsible for the waste. The
Supreme Court only wrote a modest paragraph when addressing the second issue. The
court followed the settled rule that an employee who tortiously causes injury to a third
person may be held personally liable to that person regardless of whether he or she
committed the tort while acting within the scope of employment.
We do not disagree with or breach the holding in Eastwood v. Horse Harbor
Foundation. The question of whether an employee may be personally liable for her
tortious conduct occurring during the course of employment is a distinct legal issue from
7
No. 37419-0-III
Hanson v. Gonzalez Carmona
whether the claimant must file a pre-suit tort claim against a government employee
before maintaining a court action.
Kylie Hanson posits the related argument that a plaintiff may sue either the
employee or the employer for the employee’s tortious conduct. She cites Vanderpool v.
Grange Insurance Association, 110 Wn.2d 483, 487, 756 P.2d 111 (1988) and Orwick v.
Fox, 65 Wn. App. 71, 80-81, 828 P.2d 12 (1992). In Vanderpool v. Grange Insurance
Association, the Supreme Court held that release of the employer from liability for a tort
does not release the employee. In Orwick v. Fox, this court held that the employer is not
an indispensable party, under CR 19(b), for a suit against an employee for a tort
committed during the course of employment.
We do not quarrel with the principles announced in Vanderpool v. Grange
Insurance Association and Orwick v. Fox. Nevertheless, the rulings in the two cases do
not address the question before this court: whether the claimant must file a pre-suit tort
claim under RCW 4.96.020(4) when suing a government employee without adding the
government employer as a defendant. Hyde v. University of Washington Medical Center,
186 Wn. App. 926, 930 (2015) answered that very question in the affirmative.
Constitutional Law
Kylie Hanson’s statutory and common law arguments may be more overture to her
constitutional argument than aria. She contends that RCW 4.96.010 and RCW
4.96.020(4) are unconstitutional under the separation of powers doctrine. To set the
8
No. 37419-0-III
Hanson v. Gonzalez Carmona
operatic stage for this constitutional attack, we first discuss sovereign immunity, the
legislature’s waiver of the immunity, other constitutional challenges to nonclaim statutes,
and constitutional challenges under the separation of powers doctrine to other statutory
preconditions to filing suit.
WASH. CONST. art. II, § 26 declares:
The legislature shall direct by law, in what manner, and in what
courts, suits may be brought against the state.
Article II, section 26 of the constitution acknowledges the doctrine of sovereign
immunity recognized at common law. Coulter v. State, 93 Wn.2d 205, 207, 608 P.2d 261
(1980). Early case law, however, acknowledged that the legislature could waive the
State’s sovereign immunity and render the State liable for designated causes of action.
Riddoch v. State, 68 Wash. 329, 332, 123 P. 450 (1912); Billings v. State, 27 Wash. 288,
291, 67 P. 583 (1902). Otherwise, the State avoids liability for the tortious conduct of its
officers, agents, or servants. Riddoch v. State, 68 Wash. at 332; Billings v. State, 27
Wash. at 293.
In RCW 4.96.010(1), the Washington State Legislature waived immunity for local
government entities. To repeat, the lengthy first sentence of subsection 1 of the statute
declares:
All local governmental entities, whether acting in a governmental or
proprietary capacity, shall be liable for damages arising out of their tortious
conduct, or the tortious conduct of their past or present officers, employees,
or volunteers while performing or in good faith purporting to perform their
9
No. 37419-0-III
Hanson v. Gonzalez Carmona
official duties, to the same extent as if they were a private person or
corporation.
Chapter 4.96 RCW originated as a result of the legislature’s authority to conditionally
waive sovereign immunity. Myles v. Clark County, 170 Wn. App. 521, 528, 289 P.3d
650 (2012).
Critically important to this appeal is the principle that, since the right to sue the
state, a county, or other state-created governmental agency must be derived from
statutory enactment, the legislature may establish the conditions which must be met
before that right can be exercised. Nelson v. Dunkin, 69 Wn.2d 726, 729, 419 P.2d 984
(1966). RCW 4.96.010(1) imposed, as a condition to suing a local government, the filing
of the pre-suit claim. The second sentence of the subsection reads in part:
Filing a claim for damages within the time allowed by law shall be a
condition precedent to the commencement of any action.
Claimants based previous constitutional challenges to Washington pre-suit notice
statutes on the equal protection clause. The Washington Supreme Court held older
versions of nonclaim statutes violative of the clause because they created two classes of
tort victims with two classes of tortfeasors, governmental and nongovernmental, but then
did not extend the statute of limitations during the waiting time resulting for pre-suit
notices for claims against the government. Petersen v. State, 100 Wn.2d 421, 446, 671
P.2d 230 (1983); Hall v. Niemer, 97 Wn.2d 574, 579-80, 649 P.2d 98 (1982); Jenkins v.
State, 85 Wn.2d 883, 890-91, 540 P.2d 1363 (1975); Hunter v. North Mason High
10
No. 37419-0-III
Hanson v. Gonzalez Carmona
School, 85 Wn.2d 810, 813, 539 P.2d 845 (1975). Equal protection guarantees a party
the same amount of time to bring a tort action against the government as he or she would
have to bring an action against a private tortfeasor. Daggs v. City of Seattle, 110 Wn.2d
49, 53, 750 P.2d 626 (1988).
The Washington Supreme Court in Hunter v. North Mason High School, 85
Wn.2d 810 (1975), expressed criticisms that apply to all pre-suit notice statutes for claims
against government units. A broad reading of the opinion would lead to declaring all
nonclaim statutes unconstitutional. The high court observed that the defenders of the
statutes argue that government entities are so large and are principal targets of tort claims
such that their managing agents lack awareness of many potentially liability-producing
incidents and therefore need special notice to adequately investigate and defend against
them. The court answered this argument by noting that the discrimination behind the
claims-filing statutes do not reflect the concern. Governmental bodies range in size from
small municipal corporations to the state itself. As a class they are neither larger nor
more liability-prone than the class of private tortfeasors, which includes everything from
single individuals to giant corporations financially larger than the state. Most
governmental subdivisions are small enough for their officials to learn of incidents which
may subject them to liability. Government entities possess special investigative resources
that better equip them to investigate and defend negligence suits than most private
tortfeasors, for whom the law affords no special notice privileges. The privilege of
11
No. 37419-0-III
Hanson v. Gonzalez Carmona
special notice given governmental bodies and the burden concomitantly placed on
claimants does not correspond to any special need or inability to investigate particular to
the bodies.
The Hunter court added that other purposes forwarded to justify nonclaim statutes
also fail to connect to the distinction drawn between governmental tortfeasors and private
tortfeasors. Special notice of possible future claims does little to facilitate budget
planning, since most governmental entities are so small as to be unable to use actuarial
methods to forecast liabilities and self-insure and will usually purchase insurance like any
private individual or corporation. To the analysis of the Hunter court could be added the
observation that many, if not most, municipalities summarily reject or ignore without
consideration pre-suit notices.
In Hunter v. North Mason High School, the Washington Supreme Court concluded
that, any policy of placing roadblocks in the way of potential claimants against
government units having been abandoned, the court could not uphold nonclaim statutes
simply because they serve to protect the public treasury. Claims-filing statutes serve no
substantial or even rational basis. The arbitrary burden placed on state claimants by the
pre-suit notice statutes could not withstand constitutional scrutiny.
The Washington Supreme Court soon rejected the equal protection analysis
promoted in Hunter v. North Mason High School and distanced itself from the precedent
created in the decision. Later Washington Supreme Court decisions courts sought to limit
12
No. 37419-0-III
Hanson v. Gonzalez Carmona
Hunter’s holding to the particular claims-filing statute at issue in Hunter despite the
rationale of the decision applying to all pre-suit notice statutes. In Hunter, the relevant
version of RCW 4.96.020 demanded that the claimant give notice of any claim within
one-hundred and twenty days of the injury, not outside of a minimum number of days
before filing suit.
In Daggs v. City of Seattle, 110 Wn.2d 49 (1988), the Washington Supreme Court
accepted at least one rationale behind claims-filing statutes that the Hunter court
indirectly rejected. In Daggs v. City of Seattle, the court mentioned that claims filing
laws serve the important function of fostering inexpensive settlement of tort claims.
Within five years of Hunter v. North Mason High School, the Washington Supreme Court
began upholding, against equal protection challenges, the requirement of pre-suit notices
before filing an action against a government entity when the statute did not stunt the
claimant’s time for suing. Medina v. Public Utility District No. 1 of Benton County, 147
Wn.2d 303, 313-14, 53 P.3d 993 (2002); Daggs v. City of Seattle, 110 Wn.2d 49 (1988);
Hall v. Niemer, 97 Wn.2d 574, 581 (1982); Coulter v. State, 93 Wn.2d 205, 207, 608
P.2d 261 (1980).
Kylie Hanson, in addition to contending that RCW 4.96.020(4) violates the
separation of powers doctrine, maintains that the statute interferes with her fundamental
right to compensation for tort injuries. Nevertheless, the Supreme Court has reasoned
that a nonclaim statute does not impact a fundamental right or create a suspect
13
No. 37419-0-III
Hanson v. Gonzalez Carmona
classification. McDevitt v. Harborview Medical Center, 179 Wn.2d 59, 316 P.3d 469
(2013); Daggs v. City of Seattle, 110 Wn.2d 49, 55-56 (1988). Therefore, the court
applies minimal scrutiny to pre-suit notice statutes and upholds the statute if its purpose
possesses a rational relationship with the language of the statute. Waiting a few months
to file suit does not substantially burden tort victims. Daggs v. City of Seattle, 110 Wn.2d
49, 56 (1988). The waiting period does not harm the victim when the statute provides for
a tolling of the statute of limitations during the period.
Kylie Hanson also argues that the legislature exceeded its authority when creating
procedures attendant to suing government entity employees, because, despite working for
the government, the employees remain private persons. Washington courts have rejected
challenges to nonclaim statutes based on an employee also being a private individual.
Wright v. Terrell, 162 Wn.2d 192, 195 n.1 (2007); Hyde v. University of Washington
Medical Center, 186 Wn. App. at 930-31 (2015); Hardesty v. Stenchever, 82 Wn. App. at
260-62 (1996). Hanson cites no law to support her contention that the legislature cannot
constitutionally benefit government employees, who remain private persons, with the
protection of a claims-filing statute.
In this appeal, Kylie Hanson astutely does not rely on the equal protection clause,
but asserts unconstitutionality on a ground not addressed before in a Washington
appellate decision in the context of government pre-suit notice statutes. Hanson
creatively contends that RCW 4.96.020(4) violates the separation of powers doctrine.
14
No. 37419-0-III
Hanson v. Gonzalez Carmona
Also, the legislature exceeded its authority by enacting a procedural rule, which
authority, under the separation of powers doctrine, only belongs to the Supreme Court.
According to Hanson, the statute conflicts with CR 3(a) adopted by the Supreme Court.
A plaintiff, in a reported decision, has not before argued that RCW 4.96.010 and RCW
4.96.020(4) conflict with CR 3(a) and thereby violate the separation of powers doctrine.
The Washington State Constitution does not contain a formal separation of powers
clause, but the courts presume that the division of our government into different branches
throughout our state’s history calls for a vital separation of powers doctrine. Brown v.
Owen, 165 Wn.2d 706, 718, 206 P.3d 310 (2009); Carrick v. Locke, 125 Wn.2d 129, 135,
882 P.2d 173 (1994). The doctrine of separation of powers divides power into three
coequal branches of government: executive, legislative, and judicial. City of Fircrest v.
Jensen, 158 Wn.2d 384, 393-94, 143 P.3d 776 (2006) (plurality opinion). The doctrine
does not demand that the branches of government be hermetically sealed off from one
another, but ensures that the fundamental functions of each branch remain inviolate.
Hale v. Wellpinit School District No. 49, 165 Wn.2d 494, 504, 198 P.3d 1021 (2009). If
the activity of one branch threatens the independence or integrity or invades the
prerogatives of another, that activity violates the separation of powers. State v. Moreno,
147 Wn.2d 500, 505-06, 58 P.3d 265 (2002).
Some fundamental functions lie within the inherent power of the judicial branch,
including the power to promulgate rules for court practice. Waples v. Yi, 169 Wn.2d 152,
15
No. 37419-0-III
Hanson v. Gonzalez Carmona
158, 234 P.3d 187 (2010). If a statute appears to conflict with a court rule, this court will
first attempt to harmonize the two and give effect to both, but if they cannot be
harmonized, the court rule will prevail in procedural matters, and the statute will prevail
in substantive matters. Waples v. Yi, 169 Wn.2d 152, 158.
Kylie Hanson primarily relies on Waples v. Yi, 169 Wn.2d 152. In Waples, the
Washington Supreme Court addressed a challenge to the constitutionality of former RCW
7.70.100(1) (2006), which required a plaintiff to provide health care providers with
ninety days’ notice of the plaintiff’s intention to file a medical malpractice suit. In a
lawsuit against her dentist, Nancy Waples conceded that she did not provide the required
notice, but argued that the requirement is unconstitutional. The court agreed and declared
the statute unconstitutional under the separation of powers doctrine.
The Washington Supreme Court, in Waples v. Yi, faced the question of whether
former RCW 7.70.100(1) (2006) conflicts with the commencement provisions of CR 3(a)
and whether that conflict involves procedural law or substantive law. Nancy Waples
argued that former RCW 7.70.100(1) conflicted with the court rule because the notice
requirement of the statute fundamentally changed the procedures for the commencement
of a civil action under CR 3(a). CR 3(a) provides in pertinent part:
Except as provided in rule 4.1, a civil action is commenced by
service of a copy of a summons together with a copy of a complaint, as
provided in rule 4 or by filing a complaint.
16
No. 37419-0-III
Hanson v. Gonzalez Carmona
(Emphasis added.) In contrast, the pertinent language of former RCW 7.70.100(1) then
provided:
No action based upon a health care provider’s professional
negligence may be commenced unless the defendant has been given at least
ninety days’ notice of the intention to commence the action.
(Emphasis added.) The Washington Supreme Court observed that requiring notice under
former RCW 7.70.100(1) added an additional step for commencing a suit to those
required by CR 3(a). Failure to provide the notice required by former RCW 7.70.100(1)
resulted in a lawsuit’s dismissal even when the complaint was properly filed and served
pursuant to CR 3(a). The court could not harmonize the conflict between former RCW
7.70.100(1) and CR 3(a). The court concluded that former RCW 7.70.100(1) involved
procedures, since procedural rules involve the operations of the courts. Substantive law
creates, defines, and regulates primary rights. RCW 7.70.100(1) did not address the
primary rights of either party and dealt only with the procedures to effectuate those
rights. Therefore, CR 3(a) trumped former RCW 7.70.100(1).
When issuing Waples v. Yi, the Washington Supreme Court relied on its earlier
decision in Putman v. Wenatchee Valley Medical Center, P.S., 166 Wn.2d 974, 216 P.3d
374 (2009). In the latter case, the court applied the separation of powers doctrine to
declare RCW 7.70.150 unconstitutional because of its conflict with the pleading
requirements of CR 8 and 11. RCW 7.70.150 demanded that, at the time a claimant filed
a suit against a health care provider, the plaintiff file a certificate of merit signed by a
17
No. 37419-0-III
Hanson v. Gonzalez Carmona
health care provider that declared a reasonable probability existed that the defendant
failed to exercise the standard of care. CR 11 states that attorneys need not verify
pleadings in medical malpractice actions, let alone any lawsuits. CR 8 allows notice
pleading. The conflict involved procedural law and not substantive law in that the
certificate of merit requirement encroached upon the judiciary’s power to set court rules.
In Putman v. Wenatchee Valley Medical Center, the court wrote that civil liberty
consists in the right of every individual to claim the protection of the laws, whenever he
receives an injury. Therefore, the people have a right of access to courts. The right of
access to courts includes the right of discovery authorized by the civil rules. Requiring
medical malpractice plaintiffs to submit a certificate prior to discovery hindered their
right of access to courts. Through the discovery process, plaintiffs uncover the evidence
necessary to pursue their claims.
As with former RCW 7.70.100(1) (2006), RCW 4.96.020(4) also reads that the
claimant must file a pre-suit notice before the action “shall be commenced.” The
nonclaim statute imposes an additional procedural obstacle on the claimant for the
purpose of commencing action beyond the steps demanded by CR 3(a).
We observe a distinction between the circumstances in Putnam v. Wenatchee
Valley Medical Center and Waples v. Yi. The tortfeasors in the two earlier decisions were
private entities. The state constitution did not expressly grant the legislature authority
over procedures in medical malpractice claims. The statute challenged by Kylie Hanson,
18
No. 37419-0-III
Hanson v. Gonzalez Carmona
RCW 4.96.020(4), applies only in favor of government tortfeasors. The Washington
Constitution expressly grants the state legislature the power to waive sovereign
immunity, and, if it does, to impose conditions on suits against the state and municipal
corporations. By adopting RCW 4.96.010 and .020(4), the legislature imposed one of
several conditions on suing the government.
We deem McDevitt v. Harborview Medical Center, 179 Wn.2d 59, 316 P.3d 469
(2013) more on point than Waples v. Yi and Putnam v. Wenatchee Valley Medical Clinic.
In McDevitt, the claimant challenged a former version of RCW 7.70.100(1), which statute
required a ninety-day pre-suit notice before filing a medical malpractice suit. The
Supreme Court had held the statute unconstitutional in Waples v. Yi as applied to private
defendants. Glen McDevitt sued Harbor View Medical Center, a government entity
operated by the University of Washington.
In McDevitt v. Harborview Medical Center, the Washington Supreme Court
concluded that the ninety day pre-suit notice requirement is constitutional as applied
against the State on the grounds that the legislature may establish conditions precedent,
including pre-suit notice requirements. Thus the reasoning behind invalidating the statute
in Waples v. Yi did not apply. The requirement did not constitute a substantial burden on
the ability of governmental tort victims to obtain relief. The classification of plaintiffs
suing state defendants did not infringe on a fundamental right or create a suspect
classification. The requirement also rationally related to a legitimate government interest
19
No. 37419-0-III
Hanson v. Gonzalez Carmona
because of the multitude of departments, agencies, officers and employees and their
diverse and widespread activities, touching virtually every aspect of life within the state.
The pre-suit notice also assisted government entities in budgeting. The statute promoted
pre-suit settlement of valid claims.
We recognize that many, if not most, of the justices in McDevitt v. Harborview
Medical Center concurred in the lead opinion because the lead opinion determined to
apply its ruling prospectively only. Only three justices signed the lead opinion.
Nevertheless, no later Washington Supreme Court has rejected the reasoning of
McDevitt. We deem McDevitt v. Harborview Medical Center controlling in this appeal.
Failure to comply with the nonclaim statute’s filing requirement leads to dismissal
of the suit. Daggs v. City of Seattle, 110 Wn.2d 49, 57 (1988); Hyde v. University of
Washington Medical Center, 186 Wn. App. 926, 929 (2015). The government need not
show prejudice in order to gain dismissal. Pirtle v. Spokane Public School District No.
81, 83 Wn. App. 304, 309-10, 921 P.2d 1084 (1996).
Because McDevitt v. Wenatchee Valley Medical Clinic is a fractioned opinion, we
welcome the Washington Supreme Court visiting the question of whether RCW
4.96.020(4) violates the separation of powers doctrine. In the meantime, we are bound to
enforce the legislative will when exercised within its constitutional limits. Robb v. City
of Tacoma, 175 Wash. 580, 586, 28 P.2d 327 (1933). We presume the constitutionality
of a legislative act and will not declare an enactment void unless its invalidity appears
20
No. 37419-0-III
Hanson v. Gonzalez Carmona
beyond a reasonable doubt. Robb v. City of Tacoma, 175 Wash. 580. We must give full
effect to the plain language of a statute even when the results of doing so may seem
unduly harsh. Bosteder v. City of Renton, 155 Wn.2d 18, 41 (2005).
CONCLUSION
We reverse the superior court’s denial of Miriam Gonzalez Carmona’s motion for
summary judgment. We remand to the superior court to enter judgment dismissing Kylie
Hanson’s suit against Carmona.
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.
_________________________________
Fearing, J.
WE CONCUR:
______________________________ _________________________________
Lawrence-Berrey, J. Pennell, C.J.
21