Troxell v. Rainier Public School District No. 307

¶22 (dissenting) — If I were ill and a physician prescribed antibiotics, giving me one pill on December 10, and telling me to take another after one day elapsed, I would take the second pill on December 11. My learned colleagues of the majority, however, reasoning that for a day to elapse a full day must intervene, would not take their second pill until December 12. I must confess some concern for their well being. Because the majority’s interpretation would frustrate the purpose of the statute it interprets; would lead to anomalous results; is inconsistent with previous judicial interpretations, common parlance, and dictionary definitions; I dissent.

Chambers, J.

¶23 We are asked to interpret RCW 4.96.020(4). It 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 limitations during that time. RCW 4.96.020(4) reads:

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.

The court’s fundamental objective is to ascertain the legislature’s intent in enacting a statute. State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001). If the meaning of the statute is plain on its face, then the court must give effect to that plain meaning. Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). If, however, the meaning is unclear, the court must examine the statutory scheme as a whole, as well as related statutes to determine what the legislature intended. Id. at 11. Because this case *362involves the method of computing time in different types of context, we must look at the statute in the context of the purposes of the timing requirements at issue.

¶24 Most of the time limits we confront are limits within which something must be accomplished. For example, a notice of appeal must be filed within 30 days. See RAP 5.2(a). Statutes of limitation are examples of time limits within which something must be accomplished. In the instant case, RCW 4.16.080 provides:

The following actions shall be commenced within three years:
(2) An action . . . for any other injury to the person or rights of another not hereinafter enumerated. . . .

RCW 4.16.080 (emphasis added).

¶25 Where the action is against a government entity, there is a requirement that a notice be filed with the government entity 60 days before commencing an action against that governmental body. The first subpart of RCW 4.96.020(4) thus presents us with a different type of time limit: one which prohibits action from being taken until a period of time has passed.7 The majority concludes that, although generally action must be taken within a time limit, the legislature intended that action be taken outside of the notice waiting period. The majority’s interpretation would frustrate the intent of the act because the statute of limitations would lapse before the 60 day waiting period expired. This is so because the majority interprets “elapse” to require that, not counting the day the notice is filed, a full 60 days must begin and end and filing cannot take place until the 61st day. However, when the 60-day tolling period is added to the statute of limitations, the plaintiff is required to act within 60 days. We must, if we can, interpret the two subparts of the statute in harmony with each other. *363If we conclude that for a day to “elapse” the day need only end, and not start and end, then the two subparts of RCW 4.96.020(4) are in harmony.

¶ 26 The first subpart of RCW 4.96.020(4) prohibits the commencement of a tort action “until sixty days have elapsed after” the filing of the notice of claim with the “local governmental entity.” This gives government defendants time to investigate and settle claims where possible. See Medina v. Pub. Util. Dist. No. 1 of Benton County, 147 Wn.2d 303, 317, 53 P.3d 993 (2002). While the statute’s purpose is clear, the statute is ambiguous as to when 60 days “elapse.” It is apparent that two interpretations are possible: 60 days elapse on the 60th day after filing or 60 days elapse when 60 full days have intervened between filing of the notice and the commencement of a lawsuit. Because the former of these interpretations represents the plain and ordinary meaning of the phrase, “until 60 days have elapsed,” I would hold that this is the only reasonable interpretation.

¶27 The conclusion that a day elapses when it ends is supported by both common parlance and the dictionary definition of “elapse” used by the majority. In common parlance, we compute time by omitting the first day but including all of the following days. Thus, if a physician gives a patient a prescription with instructions to take five pills beginning on Monday and to allow a day to elapse between taking each pill, we would understand the physician to be instructing us to take a pill on Monday, Tuesday, Wednesday, Thursday, and Friday.

¶28 Additionally, the majority defines “elapsed” so as to require that a day must “pass away” or “expire.” Majority at 352. A day cannot pass away or expire at any time other than at the stroke of midnight. Rebecca Troxell served her claim notice at 3:35 p.m. on December 10. One could say that a day elapses after 24 hours but December 10 did not elapse at 3:35 p.m. on December 11; instead, the day elapsed just like every other day, at the stroke of midnight, which ended December 10 and began December 11. The majority seems *364to understand “a day elapsing” as not counting any of the day the notice was filed and then “a full day beginning and then ending.” See majority at 352.

¶29 The majority suggests that if we read the statute so as to allow the suit to be filed on the 60th day, we will have adopted a rationale that considers a day to have “elapsed” in the time between 11:59:59 p.m. and 12 midnight. Majority at 351. The majority’s interpretation of a day elapsing is arbitrary since, under its analysis, a person who files her notice of claim at 11:59:59 p.m. on December 9 could properly file her claim at 12 midnight on February 8, while a plaintiff who waited just one more second would be barred for an additional 24 hours and could not file until February 9.

¶30 More importantly, the majority’s reading leads to an absurd result in a foreseeable circumstance, a situation we strive to avoid. State v. Neher, 112 Wn.2d 347, 351, 771 P.2d 330 (1989). The purpose of the tolling clause is to account for the statutory delay associated with the waiting period. Despite the majority’s recognition that “in Castro we sought to ensure that the waiting period did not reduce a plaintiff’s limitations period,” majority at 357, the majority readily acknowledges that its reading effectively precludes claims from litigants who wait until the last day of the original statute of limitations period to serve claim notice. Majority at 356. The majority resolves this tension by noting that “the imputation that our Castro opinion put into place such a rule — one that would foreclose a claimant’s suit on statute of limitations grounds, despite the claimant’s timely filing of the claim notice — is contrary to the entire thrust of our decision in Castro.” Majority at 356. If this statement means only that we ought not lay the blame for such a result at Castro’s feet, I agree. Castro’s guaranty of the full statutorily mandated limitations period cannot rationally lead to a shortening of the limitations period. The majority’s reading of Castro, however, effectively shortens the limitations period by one day by requiring that the claim notice be filed one day prior to the expiration of the *365limitations period. This harsh result is contrary to Castro’s guaranty and can hardly be said to have been intended by the legislature. Instead, “[t]he spirit or purpose of an enactment should prevail.” State v. Day, 96 Wn.2d 646, 648, 638 P.2d 546 (1981).

¶31 In Sievers v. City of Mountlake Terrace, 97 Wn. App. 181, 983 P.2d 1127 (1999), the court interpreted the same statute. That court, as I do, read the two subparts of RCW 4.96.020(4) in harmony. The court referred to the day on which the claimant filed, a Friday, as the 59th day. Id. The court thus implied that, but for the next day being a Saturday, the claimant could have brought her claim on that, the 60th day. Id. at 184. Because of the intervening weekend, the following Monday was “the only (last) possible day to commence the action... in compliance with the 60-day waiting rule . . . and within the applicable statute of limitation.” Id. (emphasis added).

¶32 We do not read statutes to reach an absurd result when they may be read in an utterly sensible fashion. Glaubach v. Regence Blueshield, 149 Wn.2d 827, 833, 74 P.3d 115 (2003). Since the majority’s reading of the statute leads to an absurd result in a foreseeable circumstance, I respectfully dissent.

C. Johnson and Sanders, JJ., and Ireland, J. Pro Tern., concur with Chambers, J.

I agree with the Court of Appeals and the majority that CR 6(a) controls the computation of time when action must be taken within a period of time but does not control the computation of time where action is prohibited until a period of time has passed. Troxell v. Rainier Pub. Sch. Dist. No. 307, 119 Wn. App. 361, 363, 80 P.3d 623 (2003).