Lee v. Metro Parks Tacoma

Melnick, J.

¶23 (concurring in result) —- I concur with the result the majority reaches; however, I write separately to respectfully state my disagreement with the majority’s reasoning. I would hold that the legislatively created 60-day waiting period of RCW 4.96.020 is a condition precedent to the filing of a lawsuit against Metro Parks, a governmental entity, with which there must be strict compliance.

ANALYSIS

Strict Compliance with Statutory Conditions Precedent Required

¶24 Article II, section 26 of the Washington Constitution allows the legislature to waive sovereign immunity and states, “The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state.” In 1961, the legislature first waived sovereign immunity. Former RCW 4.92.090 (1961). However, in so doing, it took care to safeguard against unnecessary lawsuits by enacting various requirements an individual must comply with before filing a lawsuit against the State or a governmental entity. One such safeguard is the tort claim statutes. Chs. 4.92, 4.96 RCW. These statutes are rationally related to the government’s interest in encouraging negotiation and settlement of claims against the government. Medina v. Pub. Util. Dist. No. 1 of Benton County, 147 Wn.2d 303, 317, 53 P.3d 993 (2002). This safeguard to the filing of a lawsuit is widespread and not unique to Washington.2

*970¶25 The prerequisites to filing tort claim lawsuits against the State and governmental entities in Washington are found in chapter 4.92 RCW and chapter 4.96 RCW One prerequisite found in RCW 4.96.020(4) states, “No action subject to the claim filing requirements of this section shall be commenced against any local governmental entity ... 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.”

¶26 The requirement that a party must wait 60 calendar days after first filing a notice of claim with a governmental entity before filing a tort action for damages against the governmental entity is a condition precedent, or a legislatively imposed requirement, to filing a lawsuit against a governmental entity. Our Supreme Court has held statutory waiting periods are valid preconditions to bringing a lawsuit against a state entity. McDevitt v. Harborview Med. Ctr., 179 Wn.2d 59, 66, 316 P.3d 469 (2013) (“[Subsequent decisions from this court have also allowed the legislature to establish certain conditions precedent before suit can be brought against the State.”).

¶27 A plaintiff must strictly comply with the 60-day condition precedent before filing a lawsuit against a governmental entity. Our Supreme Court has held that “ [i]t is impossible to substantially comply with a statutory time limit. ... It is either complied with or it is not.” City of Seattle v. Pub. Emp’t Relations Comm’n, 116 Wn.2d 923, 928-29, 809 P.2d 1377 (1991). “Compliance with a waiting period can be achieved only through meeting the time requirements of the statute.” Medina, 147 Wn.2d at 317.

¶28 Relying on Myles v. Clark County, 170 Wn. App. 521, 289 P.3d 650 (2012), review denied, 176 Wn.2d 1015 (2013), Lee argues a 2009 amendment to RCW 4.96.020 requires *971that individuals need only substantially comply with the 60-day waiting period. Appellant’s Br. at 12-14. This 2009 amendment changed RCW 4.96.020 in two significant ways. First, it added a section that allowed for substantial compliance with the “procedural requirements” of the statute. RCW 4.96.020(5). Second, it modified the 60-day waiting period and gave plaintiffs an additional five days to file a lawsuit. RCW 4.96.020(4). If the legislature considered the presuit time limit to be procedural, with which substantial compliance applies, it would not have also changed the 60-day time limit. Myles is inapplicable to this case because it did not involve the 60-day presuit filing requirement. It involved the notice requirement, a procedural matter.

¶29 We review questions of statutory interpretation de novo. Bostain v. Food Express, Inc., 159 Wn.2d 700, 708, 153 P.3d 846 (2007). We construe statutes to effectuate the legislature’s intent. Bostain, 159 Wn.2d at 708. If the statute’s meaning is plain, we give effect to the plain meaning as expressive of the legislature’s intent. Bostain, 159 Wn.2d at 708.

¶30 The plain meaning of RCW 4.96.020(5) is apparent. RCW 4.96.020(5) provides for substantial compliance “[w]ith respect to the content of claims under this section and all procedural requirements.” The 60-day time period is neither substantive nor procedural. In other words, it is neither about what to file nor about how to file. It is a condition precedent to bringing a lawsuit. This result is supported by our Supreme Court. McDevitt, 179 Wn.2d at 64-65 (requirement that plaintiff provide 90 days’ notice before filing a medical malpractice lawsuit against the State is a constitutional condition precedent).3 The right to *972bring suit against a governmental entity is not a fundamental right but is created by statute. Medina, 147 Wn.2d at 312. Thus, the right to file a lawsuit against a governmental entity does not vest until the individual satisfies the specified conditions precedent. Cook v. State, 83 Wn.2d 599, 602-03, 521 P.2d 725 (1974); see also McDevitt, 179 Wn.2d at 62 (the legislature has the constitutional authority to alter the common law doctrine of sovereign immunity and may establish preconditions to bring a lawsuit).

¶31 Accordingly, I would hold that the legislatively created 60-day waiting period in RCW 4.96.020 is a condition precedent to the filing of a lawsuit against a governmental entity. And, this statutory time limit can only be achieved by meeting the time requirement. Because Lee failed to comply with the applicable condition precedent by filing her lawsuit after providing Metro Parks less than 60 days’ notice, I would affirm the superior court’s grant of summary judgment in favor of Metro Parks and its dismissal of Lee’s lawsuit on this basis.

McNeil v. United States, 508 U.S. 106, 113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993); 28 U.S.C. § 2675; Madsen v. Idaho Dep’t of Health & Welfare, 116 Idaho 758, 779 *970P.2d 433 (1989); Friel v. Boise City Hous. Auth., 126 Idaho 484, 887 P.2d 29 (1994); Farber v. State, 102 Idaho 398, 630 P.2d 685 (1981); Campbell v. City of Lincoln, 195 Neb. 703, 240 N.W.2d 339 (1976); State v. Superior Court, 32 Cal. 4th 1234, 90 P.3d 116, 13 Cal. Rptr. 3d 534 (2004).

Conversely, presuit notice requirements for lawsuits involving private entities are unconstitutional. See also Putman v. Wenatchee Med. Ctr., PS, 166 Wn.2d 974, 216 P.3d 374 (2009) (requirement that plaintiff file certificate of merit from medical expert with pleadings as precondition to filing medical malpractice lawsuit unconstitutional); Waples v. Yi, 169 Wn.2d 152, 234 P.3d 187 (2010) (in a suit between private parties, requirement that a plaintiff give 90 days’ notice before filing medical malpractice lawsuit unconstitutional).