Medina v. Public Utility District No. 1

Ireland, J.

(dissenting) — Medina filed a negligence suit against Benton County 56 days after filing a claim with the County. Although RCW 4.96.020(4) requires waiting 60 days after making the claim to file suit, because Benton County had already investigated and rejected the claim, *320under the facts of this case, Medina should be found to have substantially complied. For this reason, I dissent.

Waiver of Sovereign Immunity

In 1967, Washington State waived the immunity of its political subdivisions, including municipalities. See Laws of 1967, ch. 164, §§ 1, 4. Since only the State, as sovereign, may waive this immunity, it also possesses the power to prescribe the limitations upon that right. See State ex rel. Pierce County v. Superior Court, 86 Wash. 685, 688, 151 P. 108 (1915). The Washington State Constitution specifically reserves to the legislature the power to regulate the manner in which suits against the government may proceed. Const, art. II, § 26. The statute at issue here, chapter 4.96 RCW, establishes the procedure in which municipal corporations are held liable for their tortious conduct and the tortious conduct of their officers. RCW 4.96.010.

Claims Statute

RCW 4.96.020(4) states:

No action shall be commenced against any local governmental entity for damages 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. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty-day period.

Statutory Purpose

One of the purposes of chapter 4.96 RCW is to ensure that sufficient notice is provided to government entities in order to allow prompt and thorough investigation of claims and to provide an opportunity for careful evaluation of the potential costs and benefits of litigation. Williams v. State, 76 Wn. App. 237, 248, 885 P.2d 845 (1994). As the majority notes, this section also encourages negotiation and facilitates the settlement of claims against the government. See majority *321at 313; Hall v. Niemer, 97 Wn.2d 574, 582, 649 P.2d 98 (1982). The statute does this by requiring persons to file a claim with the government agency whose allegedly tortious conduct gave rise to their injury and then to wait 60 days before commencing a lawsuit. RCW 4.96.020(4). The statute of limitations is tolled during this period. Id.

Substantial Compliance—Requirements

Ordinarily, the Court of Appeals requires strict compliance with statutory time provisions. Majority at 316. It is possible, however, to substantially comply with RCW 4.96-.020(4) where the facts of a particular case show the intent of the statute is met.

Defined as “actual compliance in respect to the substance essential to every reasonable objective of the statute,” substantial compliance asks whether the statute has been followed sufficiently to carry out the intent for which it was adopted. In re Habeas Corpus of Santore, 28 Wn. App. 319, 327, 623 P.2d 702 (1981). What constitutes substantial compliance is determined on the facts for each particular case. Id.

The courts, on a case-by-case basis, can determine whether RCW 4.96.020(4) was substantially complied with if evidence shows that the government defendant (1) acted on the claim, (2) was not further investigating the matter, and (3) was not further negotiating settlement. A mere showing that the government agency acted on a claim does not satisfy the substantial compliance test since the agency can continue investigating, negotiating, or settling the matter after its initial action. Moreover, a substantial compliance argument can be defeated if the government defendant shows that it would be prejudiced by plaintiff’s early filing because it was still proceeding on the claim. However, once the government ceases all action or intent to act on the issue after making a decision on the claim, the purpose of RCW 4.96.020(4) is satisfied and the test of substantial compliance can be met.

*322Medina substantially complied with RCW 4.96.020(4) when he filed suit against Benton County 4 days prior to the expiration of the 60-day waiting period. Within six days of receiving Medina’s personal injury claim, the County rejected it. There is no evidence that suggests the County intended to further investigate, negotiate, or make any settlement offer. Medina filed suit on Thursday, March 5, 1998, four days prior to the expiration of RCW 4.96.020(4). The last two days of the waiting period were a Saturday and Sunday, nonbusiness days for the County. Pet’r’s. Br. at 4. The timing of filing in this case is important in determining whether Medina substantially complied with RCW 4.96-.020(4). One can logically conclude that, since the County had already acted, was not pursing the claim any further, and had only one day left within which it could further proceed, it was not likely to initiate any new investigation or negotiations. Thus, Medina’s early filing did not frustrate the purpose of RCW 4.96.020(4) and substantially complies with the statute.

This case differs significantly from those cited by the majority. City of Seattle v. Public Employment Relations Commission is inapposite to this case. City of Seattle v. Pub. Employment Relations Comm’n, 116 Wn.2d 923, 809 P.2d 1377 (1991). There, the court was confronted with the issue of whether a city could substantially comply with an administrative appellate procedure rule. The court stated that “failure to comply with a statutorily set time limitation cannot be considered substantial compliance.” Id. at 929. In that case, however, strict compliance was required because of the nature of RCW 34.05.518. That statute requires explicit action on the part of petitioners, mandating they file their claim within 30 days. RCW 34.05.518. Notice of appeal deadlines are jurisdictional and not generally susceptible to substantial compliance. See RAP 18.8; Schaefco, Inc. v. Columbia River Gorge Comm’n, 121 Wn.2d 366, 368, 849 P.2d 1225 (1993).

Conversely, RCW 4.96.020(4) prohibits the petitioner from filing suit until 60 days have elapsed in an effort to *323encourage settlement of claims out of court. Once the government defendant disposes of the matter and evidence shows that it will likely take no further action on the issue, neither is the government agency prejudiced nor is the intent of RCW 4.96.020(4) frustrated if the plaintiff files a lawsuit a few days prior to the expiration of the 60-day waiting period.

In Levy v. State, the court held that plaintiff’s failure to verify her claim for damages was fatal to her case. Levy v. State, 91 Wn. App. 934, 957 P.2d 1272 (1998). The time provision of RCW 4.96.020(4) was not at issue. In Kleyer v. Harborview Medical Center and Lewis v. City of Mercer Island, the petitioners filed a lawsuit without even filing a claim with the government defendants first. Kleyer v. Harborview Med. Ctr., 76 Wn. App. 542, 887 P.2d 468 (1995); Lewis v. City of Mercer Island, 63 Wn. App. 29, 817 P.2d 408 (1991). In these cases, the petitioners did not even attempt to strictly or substantially comply with statute by filing their claims with the government defendants before filing suit.

Sievers v. City of Mountlake Terrace is also distinguishable. In that case, the government defendant did not make any effort to investigate or settle the claim prior to the expiration of the 60-day waiting period. Sievers v. City of Mountlake Terrace, 97 Wn. App. 181, 983 P.2d 1127 (1999). Thus, when petitioner filed her suit on the 59th day, she negated the purpose of RCW 4.96.020(4) because the government still had time to act. Since the government had not acted, the only way to satisfy the intent of the statute was to wait for the entire 60 days to expire. In Medina’s case, the statute was substantially complied with because the County had acted on the claim, satisfying the intent of the statute.

In Pirtle v. Spokane Public School District No. 81, on the same day the claim was filed, plaintiff’s counsel issued an ultimatum to the defendant school district, threatening the district with a lawsuit unless it settled the matter within 16 days. Pirtle v. Spokane Pub. Sch. Dist. No. 81, 83 Wn. App. *324304, 921 P.2d 1084 (1996). Plaintiff filed suit before the district had acted. The action of the plaintiff frustrated the purpose of RCW 4.96.020(4) because the district was permitted 60 days to act on the claim. Thus, in Pirtle plaintiff neither strictly nor substantially complied with the statute.

As the court stated in In re Saltis, it is unjust to escape liability on a mere technicality. In re Saltis, 94 Wn.2d 889, 896, 621 P.2d 716 (1980). “ ‘[Substantial compliance’ with procedural rules is sufficient, because ‘delay and even the loss of lawsuits [should not be] occasioned by unnecessarily complex and vagrant procedural technicalities.’ ” Id. (alteration in original). Substantial compliance is determined on the facts for each particular case. Santore, 28 Wn. App. at 327. In this case, Medina substantially complied with RCW 4.96.020(4).

Chambers, J., concurs with Ireland, J.