New Meadows Holding Co. v. Washington Water Power Co.

687 P.2d 212, 102 Wash. 2d 495
CourtWashington Supreme Court
DecidedSeptember 13, 1984
Docket49588-2
StatusPublished
Cited by63 cases

This text of 687 P.2d 212 (New Meadows Holding Co. v. Washington Water Power Co.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Meadows Holding Co. v. Washington Water Power Co., 687 P.2d 212, 102 Wash. 2d 495 (Wash. 1984).

Opinions

Dolliver, J.

Plaintiff Mark Brown, while attempting to light an oil stove on December 31, 1978, unwittingly ignited natural gas which was leaking from a damaged gas line several blocks away. The natural gas, unable to permeate the frozen ground, traveled laterally entering the drain field which serviced Brown's residence. The leak allegedly was caused 7 years earlier when Cable Way, Inc. (Cable Way), while laying underground telephone cable for Pacific Northwest Bell (PNB), damaged a 2-inch gas transmission line owned by Washington Water Power Company (WWP). The subsequent explosion seriously injured Brown and destroyed the residence he rented from New Meadows Holding Company (New Meadows).

Plaintiff New Meadows sued WWP, PNB, and Cable Way. WWP answered and sought indemnity by cross claim from PNB and Cable Way. PNB brought separate summary judgment motions for dismissal against New Meadows and WWP asserting the claim and cross claim were barred by the statutes of limitation in RCW 4.16.300-.320. New Meadows failed to appear and did not contest the motion. WWP appeared and resisted the motion. Both motions for dismissal were granted. New Meadows and WWP appealed.

Subsequently, Brown and New Meadows sued WWP alleging liability based upon negligence and strict liability. They then filed a motion for summary judgment against WWP on the issue of strict liability. This motion was granted.

Court of Appeals, Division Three, granted discretionary [498]*498review of the summary judgment order holding WWP strictly liable. This case and the appeals of New Meadows and WWP from the orders dismissing their actions against PNB were placed on a parallel perfection schedule and decided in a single opinion.

In New Meadows Holding Co. v. Washington Water Power Co., 34 Wn. App. 25, 659 P.2d 1113 (1983), Division Three held RCW 4.16.300-.320 did not apply to claims for damages to adjacent property and therefore reversed PNB's summary judgment on WWP's cross claim. The court, however, affirmed PNB's summary judgment against New Meadows, finding its failure to contest the motion amounted to waiver. Additionally, the court held the transmission of natural gas through underground lines was not an abnormally dangerous activity. Therefore, the summary judgment against WWP on the issue of strict liability was reversed. Plaintiffs' petition for discretionary review was granted.

I

Initially, we must determine whether the failure of New Meadows to contest PNB's motion for summary judgment waived its right to appeal. Failure to raise an issue before the trial court generally precludes a party from raising it on appeal. Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983). This rule affords the trial court an opportunity to rule correctly upon a matter before it can be presented on appeal. Lake Air, Inc. v. Duffy, 42 Wn.2d 478, 482, 256 P.2d 301 (1953). However, this rule does not apply when the question raised affects the right to maintain the action. Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 621, 465 P.2d 657 (1970).

Since to deem New Meadows' failure to appear as a waiver affects its right to maintain the action, New Meadows' claim falls squarely under the exception to the general rule. Moreover, the trial court was not deprived of an opportunity to rule on the applicability of RCW 4.16.300-.320 to this case. PNB's motions for summary judgment, [499]*499based on these statutory provisions, were adequately briefed and argued by PNB and WWP. New Meadows and WWP had identical interests. Thus, New Meadows' argument was not raised for the first time on appeal. We reverse the lower court's summary judgment dismissal of New Meadows' claim.

II

Next, at issue is whether New Meadows' claim and WWP's cross claim against PNB are barred by RCW 4.16-.300-320. RCW 4.16.300-.320 apply to all claims or causes of action arising from construction, alteration, or repair of any improvement upon real property. RCW 4.16.310 states such claims

shall accrue, and the applicable statute of limitation shall begin to run only during the period within six years after substantial completion of construction . . . Any cause of action which has not accrued within six years . . . shall be barred: Provided, That this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues.

The Court of Appeals, relying on Vern J. Oja & Assocs. v. Washington Park Towers, Inc., 89 Wn.2d 72, 569 P.2d 1141 (1977), held the statute did not apply to claims for damages to adjacent property. We disagree. Oja held, under the 3-year statute of limitation in RCW 4.16.080(1), the discovery rule determines when a cause of action accrues in cases involving damage to real property arising out of construction on adjacent property.

This holding has no impact on the absolute limitation on actions defined in RCW 4.16.310. Gazija v. Nicholas Jems Co., 86 Wn.2d 215, 222 n.2, 543 P.2d 338 (1975); Hudesman v. Meriwether Leachman Assocs., Inc., 35 Wn. App. 318, 320-23, 666 P.2d 937 (1983). This statute begins to run upon substantial completion of a project, not upon the accrual of a claim. In fact, the statute runs against the accrual of any claim arising from the project. Consequently, for a claim to be heard, it must accrue within 6 [500]*500years. Additionally, RCW 4.16.310 applies to all claims of causes of action arising from the activities covered. The focus is upon the cause of the damage, not its location. We conclude, therefore, the statute applies equally to claims arising from adjacent property.

The proviso of RCW 4.16.310

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Bluebook (online)
687 P.2d 212, 102 Wash. 2d 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-meadows-holding-co-v-washington-water-power-co-wash-1984.