Opinion
No. 23978-1-III.
June 22, 2006.
Appeal from a judgment of the Superior Court for Adams County, No. 03-2-00330-5, Adalia A. Hille, J. Pro Tem., entered February 15, 2005.
Counsel for Appellant(s), John Ambrose Bardelli, Attorney at Law, 606 N Pines Rd Ste 201, Spokane, WA 99206-6711.
Counsel for Respondent(s), Jarold Phillip Cartwright, Aty General's Ofc Tort Division, 1116 W Riverside Ave, Spokane, WA 99201-1106.
Holly Ann Vance, Washington Attorney Generals Office, 1116 W Riverside Ave, Spokane, WA 99201-1106.
Affirmed by unpublished opinion per Kato, J., concurred in by Sweeney, C.J., and Schultheis, J.
Katherine Horst died on September 11, 2000, from injuries she suffered in a car accident. Her parents sued the State for wrongful death, assault and battery, breach of contract, invasion of privacy, intentional infliction of emotional distress, and civil rights violations. The State moved for summary judgment, arguing the statute of limitations had expired on all claims. The court agreed and dismissed the action. We affirm.
On September 7, 2000, Ms. Horst was driving her car westbound on State Route 26 when she collided with a car driven by Donald Bishop. She died on September 11 from injuries in the accident.
On August 28, 2003, Kathleen S. Horst, the decedent's mother, was appointed personal representative of her daughter's estate. Believing the cause of the collision was the failure of the State to properly maintain the condition of the roads involved, the father and mother filed a tort claim with the State of Washington's Office of Risk Management (ORM) on September 2, 2003, seeking damages for Katherine Horst's death. This claim was signed by an attorney representing her parents.
On September 8, 2003, the Horsts filed an action for personal injury and wrongful death in Adams County. On this date, ORM also received a tort claim signed by them.
On November 18, 2003, the Horst's filed a second lawsuit. They asserted claims for wrongful death, strict liability, breach of contract, civil rights violations, assault and battery, invasion of privacy, and intentional infliction of emotional distress.
The State filed a motion for summary judgment, arguing the decedent should be dismissed from the action and the entire action was barred by the statute of limitations. The court granted the motion. This appeal follows.
The Horsts appeal the summary judgment dismissal of their claims. We review summary judgment motions de novo. Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000). Summary judgment is appropriate when there are no disputes of material fact and the issues presented can be resolved as a matter of law. Tri-City Constr. Council, Inc. v. Westfall, 127 Wn. App. 669, 674, 112 P.3d 558 (2005).
Initially, the State asks this court to decline to review the merits of the Horsts' claims because their brief does not contain any legal argument as to why they are entitled to relief. This court can decline to consider assignments of error if the appellants fail to provide briefing or argument to support their position. Fradkin v. Northshore Util. Dist., 96 Wn. App. 118, 122-23, 977 P.2d 1265 (1999). While the briefing does not contain argument as to why the legal theories cited support the Horsts' position, it is nevertheless clear they are challenging dismissal of their claims. There is sufficient argument in the record and the briefs for this court to review the issues raised.
The Horsts brought a wrongful death action against the State, asserting claims for negligence, strict liability, breach of contract, civil rights violations, assault and battery, invasion of privacy, and intentional infliction of emotional distress. The court dismissed all claims as time-barred.
Most of the Horsts' claims against the State were tort claims. Before filing a tort action against the State, a plaintiff is required to file a verified claim with ORM. RCW 4.92.100, Levy v. State, 91 Wn. App. 934, 942, 957 P.2d 1272 (1998). Strict compliance with the statute is required. Id. Failure to file a claim prior to the expiration of the statute of limitations will result in dismissal of the suit. Id. Once a proper claim is filed, the plaintiff must wait 60 days before filing an action in court. Id. The applicable statute of limitations is tolled during this 60-day period. RCW 4.92.110.
The Horsts' tort claims relating to the wrongful death of their daughter is subject to a statute of limitations of three years. RCW 4.16.080(2). The assault and battery claim has a statute of limitations of two years. RCW 4.16.100. The remaining claims have a statute of limitations of two years as well. RCW 4.16.130 (an action for relief not hereinbefore provided for shall be commenced within two years after the cause of action has accrued).
The dispute centers on when the claims accrued. The Horsts' daughter died on September 11, 2000; this is when the claims accrued. The Horsts accordingly had until September 11, 2002, to file some of their tort claims and until September 11, 2003 to file others. On September 2, 2003, the Horsts filed a tort claim with ORM. This claim, however, was defective because it was signed by counsel rather than the personal representative of the decedent's estate. See Levy, 91 Wn. App. at 942-44. A properly verified claim was filed on September 8, 2003, thus tolling the statute of limitations for 60 days until November 8, 2003. The Horsts did not file this action until November 18, 2003. None of their tort claims were timely filed.
But the Horsts contend that the discovery rule applies and their claims were not time-barred. "The discovery rule provides that a cause of action does not accrue until an injured party knows, or in the exercise of due diligence should have discovered, the factual bases of the cause of action." Doe v. Finch, 133 Wn.2d 96, 101, 942 P.2d 359 (1997) (quoting Beard v. King County, 76 Wn. App. 863, 867, 889 P.2d 501 (1995)).
The Horsts argue they did not know they had any claims until they met with their lawyer. But the main consideration under the discovery rule is the factual, not the legal, basis for the claims. Allen v. State, 118 Wn.2d 753, 758, 826 P.2d 200 (1992). An action accrues when the plaintiffs know or should know the relevant facts, not when the plaintiffs discover that these facts are enough to establish a legal claim. Id. Otherwise, the discovery rule would postpone accrual in every case until the plaintiffs consult an attorney. Id.
The only fact the Horsts may not have been aware of relatively soon after their daughter's death was how many other accidents had occurred at that intersection. That fact, however, could have been discovered with minimal diligence. Their argument that they could not have discovered the relevant facts sooner due to their grief was the same argument made and rejected in Allen. Id. at 759. The facts relevant to the claims brought were known to the Horsts at the time of their daughter's death or could have easily been discovered soon thereafter. Thus, the discovery rule does not apply and the tort actions are barred by the statute of limitations.
The court also properly dismissed the wrongful death action because the Horsts do not qualify as beneficiaries under the applicable statutes. Parents qualify as beneficiaries only if the decedent did not have a spouse or children and the parents were financially dependent upon the decedent. Schumacher v. Williams, 107 Wn. App. 793, 797-98, 28 P.3d 793 (2001), review denied, 145 Wn.2d 1025 (2002).
The decedent did not have a spouse or children. There is no evidence in the record the Horsts were financially dependent on their daughter. They are therefore not statutory beneficiaries. Dismissal was proper.
The Horsts also filed two non-tort claims against the State. They filed a breach of contract claim. Because the contract that was allegedly breached was not in writing, the statute of limitations was three years. Taylor v. Puget Sound Power Light Co., 64 Wn.2d 534, 537 n. 4, 392 P.2d 802 (1964); RCW 4.16.080(3). This claim accrued on September 11, 2000. RCW 4.92.110 does not apply to this claim. Thus, the statute of limitations was not tolled for 60 days as it was for the tort claims. It had to be brought by September 11, 2003. It was not. The court properly dismissed the breach of contract claim.
The Horsts also alleged a civil rights action under 42 U.S.C. sec. 1983. This statute lacks a statute of limitations. The U.S. Supreme Court has therefore directed the lower federal courts to apply the general state law limitations period for personal injury claims. Cloud v. Summers, 98 Wn. App. 724, 733, 991 P.2d 1169 (1999). In Washington, this period is three years. See RCW 4.16.080(2); Conway v. Standard Ins. Co., 23 F. Supp. 2d 1199, 1200 (E.D. Wash. 1998). This claim was also time-barred by the statute of limitations.
Affirmed.
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.
SWEENEY, C.J. and SCHULTHEIS, J., concur.