Stephens v. Stephens

534 P.2d 571, 85 Wash. 2d 290, 1975 Wash. LEXIS 882
CourtWashington Supreme Court
DecidedApril 24, 1975
Docket43483
StatusPublished
Cited by15 cases

This text of 534 P.2d 571 (Stephens v. Stephens) 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
Stephens v. Stephens, 534 P.2d 571, 85 Wash. 2d 290, 1975 Wash. LEXIS 882 (Wash. 1975).

Opinions

Utter, J.

In October 1973, plaintiff/appellant Dianne Stephens filed suit against her ex-husband, defendant/ respondent James Stephens, for injuries she received as a passenger in an automobile driven by him in an accident which occurred in October 1969, while the two were married. The trial court granted the defendant’s motion for summary judgment, ruling that the statute of limitations had run on her claim. We reverse the trial court, and hold that the statute did not run because it was tolled until appellant reached her twenty-first birthday in April 1971.

The only relevant facts in this appeal are the dates of the several incidents and legal events alleged by the parties to be determinative of the commencement of the limitations period on appellant’s claim. The dates are not disputed. Plaintiff and defendant were married on August 31, 1969, and the accident in which plaintiff was injured occurred on [292]*292October 12, 1969. On May 14, 1970, an amendment to RCW 26.28.010 became effective giving 18-year-olds the right to sue and be sued.1 On October 8, 1970, the defendant husband reached his twenty-first birthday. Plaintiff reached her twenty-first birthday on April 30, 1971. On August 9, 1971, RCW 4.16.190 was amended changing the age for tolling the statute of limitations from 21 to 18.2 Plaintiff and defendant were divorced June 2, 1972. This court decided Freehe v. Freehe, 81 Wn.2d 183, 500 P.2d 771 (1972) on August 31, 1972, eliminating interspousal tort immunity in this state. Plaintiff filed suit against the defendant on October 12, 1973.

The trial court held the limitations period began to run on May 14, 1970, the effective date of the amendments to RCW 26.28.010, giving 18-year-olds the right to sue and be sued as adults. Appellant contends it did not begin then because she could not have brought suit at that time, as the long-standing doctrine of interspousal tort immunity barred her from suing her husband while she was married [293]*293to him. She argues her cause of action against her then-husband did not “arise” until the Freehe decision (or at least until the parties’ divorce, which may have “vitiated” the immunity — Manion v. Pardee, 79 Wn.2d 1, 482 P.2d 767 (1971)) because it was precluded by ruling case law, and that where an action against a defendant is so prohibited the statute of limitations on it must be held impliedly tolled.

We are not persuaded that a judicial doctrine like that dispensed with in Freehe is the same as a positive rule of law such as was involved in Seamans v. Walgren, 82 Wn.2d 771, 514 P.2d 166 (1973), on which appellant relies. Seamans held that the statute of limitations was tolled on a claim against a legislator barred by Washington Const. art. 2, § 16, which provides that legislators “shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement of each session.” Where such a constitutional or statutory obstacle to bringing suit is legislatively removed, it has been held that the statute runs on from the date of amendment lifting the bar. Mallard v. State, 194 So. 447 (La. Ct. App. 1939); Riesberg v. State, 40 Misc. 2d 676, 243 N.Y.S.2d 887 (1963). A few courts have reached a similar result where there is a similar change in court-made law. See, e.g., United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir. 1972). Appellant would have us follow these cases. The majority and, we think, better rule, however, is that the statute is not tolled by the existence of adverse decisional law. Akers v. State Marine Lines, Inc., 344 F.2d 217, 220 (5th Cir. 1965); Zorgias v. SS Hellenic Star, 370 F. Supp. 591 (E.D. La. 1972).

Any other holding would create serious problems. As pointed out in In re Estate of Horman, 5 Cal. 3d 62, 71, 485 P.2d 785, 95 Cal. Rptr. 433 (1971):

Under claimants’ tolling theory, whenever a precedent was overturned recognizing a right of action theretofore denied by case law, all persons who had been aggrieved between the decision of the precedent case and the deci[294]*294sion of the overruling case could then file suit, no matter how many years had elapsed between. Such a proposition cannot be sustained.

For similar reasons in Versluis v. Haskell, 154 F.2d 935, 943 (10th Cir. 1946), the court reached the same conclusion, stating:

The only sure way to determine whether a suit can be maintained to a successful result is to try it. The application of the statute of limitations cannot be made to depend upon the constantly shifting state of the law, and a suitor cannot toll or suspend the running of the statutes by relying upon the uncertainties of controlling law. It is incumbent upon him to test his right and remedy in the available forums.

In addition to these considerations, we feel we are bound by the Freehe decision itself to reject appellant’s argument. Appellant’s position is that the limitations period should be held to have been tolled while interspousal suits were disallowed. Although the issue was never before decided in this state, it does appear to have been the common law that the statute does not rim on interspousal claims barred by the traditional immunity rule. Curles v. Curles, 241 F.2d 448 (D.C. Cir. 1957); Linker v. Linker, 28 Colo. App. 131, 470 P.2d 921 (1970); Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966); Fawcett v. Fawcett, 85 Wis. 332, 55 N.W. 405 (1893). But if we would have followed this rule while interspousal immunity was still the law, Freehe has eliminated that immunity, and has done so retroactively. Freehe held not only that immunity would not exist in future suits, but also that it did not exist on previously-arisen suits such as Mrs. Freehe’s, and such as appellant’s. It must follow, then, that any tolling of the statute of limitations which may once have been allowed was eliminated by Freehe, and the tolling was eliminated retroactively, just as was the immunity. Appellant cannot benefit from the old tolling rule, any more than respondent can take advantage of the once-existing rule of interspousal immunity from which it stemmed.

Thus we hold that appellant could and should have filed [295]*295suit despite the unfavorable pre-Freehe

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Stephens v. Stephens
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Bluebook (online)
534 P.2d 571, 85 Wash. 2d 290, 1975 Wash. LEXIS 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephens-v-stephens-wash-1975.