Gates v. Port of Kalama

215 P.3d 983
Court of Appeals of Washington·Decided September 1, 2009·No. 37758-6-II·Published·Cited by 7 cases

Opinion

215 P.3d 983 (2009)

Lisa GATES, Respondent,
v.
PORT OF KALAMA, a Washington Municipal Corporation and Lam Management, Inc., a Washington Corporation, dba Allen & Associates Property Management, Appellant.

No. 37758-6-II.

Court of Appeals of Washington, Division 2.

September 1, 2009.

Gregory Brian Curwen, Attorney at Law, Elizabeth Anne Camer Thompson, Gierke Curwen Dynan Jones, Tacoma, WA, for Appellant.

Dennis J. La Porte, Krilich La Porte West & Lockner, Tacoma, WA, for Defendant.

Kurt Allen Anagnostou, Attorney at Law, Longview, WA, for Respondent.

VAN DEREN, C.J.

¶ 1 The Port of Kalama appeals from a denial of its summary judgment motion, arguing that Lisa Gates failed to comply with a statutory requirement to file a personally verified administrative claim before commencing her personal injury case. Based on the plain language of the statute in effect when Gates filed her claim, we affirm the trial court's denial of the Port's summary judgment motion and remand for further proceedings.

FACTS[1]

¶ 2 According to Gates,[2] on October 22, 2004, she slipped and fell on steps while viewing a rental property owned by the Port of Kalama (Port). Gates said that she fell backwards and hit the back of her head and neck, injuring both. As a result of the fall, she alleged that she suffered various medical problems, incurred substantial medical bills, and lost wages due to her inability to work.

¶ 3 On January 28, 2005, Gates sent a letter to the Port, according to claim filing instructions it gave her, describing what had occurred and her resulting injuries. She signed the letter but she did not verify its contents. An adjuster for the Port contacted *984 her to obtain additional information. When the adjuster asked for a recorded statement, Gates hired an attorney, Kurt Anagnostou. On October 5, the Port's attorney conducted and recorded a telephone interview.

¶ 4 Anagnostou sent a letter dated August 10, 2007, to the Port's Finance Manager and Auditor, Stuart Shelby, detailing Gates's claim and proposing a settlement. Gates did not sign that letter.

¶ 5 In October 2007, Anagnostou contacted the Cowlitz County Auditor's Office to determine the identity of the Port's designated agent for service of claims.[3] A deputy auditor told Anagnostou that the Port had not designated an agent and that the county's computer system contained information on public agencies' designated agents for service from 1987 forward. To verify that the computer's records were current, Anagnostou asked for the identity of the Port of Longview's agent, which the auditor's computer system listed. Anagnostou's legal assistant then manually searched the auditor's records to determine whether the Port had appointed an agent for service but was unable to locate any such designation.

¶ 6 Gates filed this lawsuit on October 17, 2007, within the three year statute of limitations,[4] and served both the Port and LAM Management Inc., the Port's leasing agent— doing business as Allen & Associates Property Management. The Port's answer raised Gates's failure to comply with the claim-filing statute, RCW 4.96.020,[5] as one of several affirmative defenses.

¶ 7 On January 7, 2008, Gates filed an application for preliminary hearing regarding service on the Port or, in the alternative, a motion to enlarge time. This application stated that the auditor had finally located the Port's resolution naming its "Finance Manager/Auditor," Shelby, as its agent for service of claims. Clerk's Papers at 28. Anagnostou had already sent the claim to Shelby on August 10, 2007, more than 60 days before Gates filed the lawsuit on October 17. The Port responded on January 9, 2008, arguing that Gates had failed to personally verify her claim. The same day, Anagnostou filed an amended notice of claim with Shelby that was signed by Gates and notarized.

¶ 8 The Port unsuccessfully moved for summary judgment on the basis that Gates failed to comply with the statutory claim filing requirements. Gates unsuccessfully moved to nullify the service of her complaint on the Port to allow her to serve her complaint 60 days after she had refiled the claim on January 9 and still fall within the tolling period.

¶ 9 The trial court certified its decision for discretionary review and the Port appeals.

ANALYSIS

I. Standard of Review

¶ 10 We review a trial court's rulings on statutory construction de novo. Dep't. of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 9, 43 P.3d 4 (2002). When reviewing a summary judgment order, we make the same inquiries as the trial court. Cowlitz Stud Co. v. Clevenger, 157 Wash.2d 569, 573, 141 P.3d 1 (2006); Safeco Ins. Co. of *985 Am. v. Butler, 118 Wash.2d 383, 394, 823 P.2d 499 (1992). We consider all the facts and reasonable inferences in the light most favorable to the nonmoving party, that is, Gates.[6]Ranger Ins. Co. v. Pierce County, 164 Wash.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is appropriate if "there is no genuine issue as to any material fact" and the moving party shows that he or she is "entitled to a judgment as a matter of law." CR 56(c). "A genuine issue of material fact exists where reasonable minds could differ on the facts controlling the outcome of the litigation." Ranger Ins. Co., 164 Wash.2d at 552, 192 P.3d 886.

II. Claim Filing Requirements

¶ 11 The Port contends that the trial court erred by denying summary judgment because Gates failed to either file a personally verified administrative claim with the Port before filing her lawsuit or establish equitable estoppel. Gates contests the view that former RCW 4.96.020(3) (2006) required claim verification. We agree with Gates.

¶ 12 In 1967, Washington's legislature abolished sovereign immunity for the state's political subdivisions by enacting chapter 4.96 RCW. Sievers v. City of Mountlake Terrace, 97 Wash.App. 181, 183, 983 P.2d 1127 (1999). This chapter established the requirements for filing tort claims against local governmental entities. Sievers, 97 Wash.App. at 183, 983 P.2d 1127. As a municipal corporation, the Port is one such governmental body. See RCW 4.96.010(2); RCW 39.50.010.

¶ 13 "Filing a claim for damages within the time allowed by law shall be

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