December 2007

Procedural Perfection Required

Failure to comply with governmental claim filing requirements has resulted in numerous malpractice lawsuits against Washington attorneys — The six most common errors and how to ensure you have done it correctly

by Mark A. Johnson

Since January 2000, there have been a mind-boggling 80-plus appellate decisions, both reported and unreported, memorializing the difficulties Washington attorneys have encountered with the preparation and perfection of state and local government non-judicial claims. In the past 10 years, there have been more than 100 such decisions. Many of the cases reach the appellate courts following summary dismissal of the plaintiff’s claims because counsel for the plaintiff failed to comply with the statutorily imposed notice of claim requirements, a jurisdictional prerequisite for filing a lawsuit which the courts have essentially interpreted as requiring procedural perfection.

Lawsuits against the State of Washington are governed, generally, by RCW Chapter 4.92. The procedures for presenting a non-judicial claim are described in RCW 4.92.100, RCW 4.92.110, and 4.92.210(1). Claims against “local governmental entities” — cities, towns, counties, municipal corporations, quasi-municipal corporations, and public utility and public hospital districts — are governed by RCW 4.96 et seq. Both statutes require service of a verified claim, signed by the plaintiff (unless the plaintiff is a minor, is incapacitated, or resides out of state), on a designated agent and impose a 60-day waiting period prior to filing a lawsuit. The statute of limitations is tolled during the waiting period — essentially, a 60-day extension. RCW 4.92.210(1) requires that claims against the state be served on the State Department of Risk Management in Olympia. RCW 4.96.020(2) requires that each local governmental entity appoint an agent to accept service of claims and that such person’s identity and address be kept on file in the office of the county auditor in the county where the entity is located.

Although attorneys have, on occasion, been successful in arguing that the governmental entity should be equitably estopped from asserting the defense of failure to comply with non-judicial claim filing requirements, or that the entity waived its right of asserting a claim-filing defense,1 more often than not, the argument is rejected.

Since the primary purpose of this article is to highlight the most common errors made by attorneys in preparing and filing non-judicial claims, the following principles are gleaned from both reported and unreported decisions.
  
1. You Can’t Sign It, Counselor

Although signing pleadings as the legal representative of a client is what lawyers do on a daily basis, representational capacity does not extend to governmental claims. The claim must be verified and signed by the plaintiff himself unless the client is incapacitated, a minor, or a nonresident. Absent those circumstances, if an attorney signs a claim, the case will be dismissed. In Levy v. State, Schoonover v. State, Fields v. Knauss, and Shannon v. State, the plaintiffs’ cases were dismissed because the lawyer, not the client, signed the claim.2 The Schoonover court held that the attorney may not sign the claim even if the lawyer has a power of attorney from the client. In addition, although most of us would consider the dead to be “incapacitated” in the truest sense of the word, it is the administrator of the estate, not the administrator’s attorney, who must sign the claim.3

2. A 60-Day Waiting Period Means That 60 Days Have Elapsed — Not 59, Not 56, Not 16, Not 1

In Troxell v. Rainier School District No. 307, the plaintiff filed suit against the school district on the 60th day after filing notice of tort claim with the district.4 The Washington State Supreme Court concluded that strict compliance with the statutory time period required that 60 full calendar days elapse between service of the claim and commencement of the action. Because the plaintiff filed the lawsuit on the 60th day, the court dismissed the case against the school district.

In Sievers v. City of Mountlake Terrace, the plaintiff filed her tort claim the day before the expiration of the three-year statute of limitations and then waited 59 days to file her lawsuit, reasoning that since the 60th day was a Saturday, the statute of limitations (tolled during the 60-day waiting period) would expire that day.5 The Court of Appeals dismissed the case, holding that since Saturday and Sunday would not be included in the limitations period, the lawsuit would have been timely commenced had it been filed on Monday.

In Medina v. PUD No. 1 of Benton County, the Supreme Court, requiring strict compliance with the 60-day waiting period, dismissed the case of a plaintiff who waited 56 days.6 In Pirtle v. State, the claimant filed her lawsuit 16 days after filing a tort claim; case dismissed.7

In Schmitz v. State, the plaintiff filed a summons and complaint one day after filing a tort claim, but did not serve the State until well after the 60-day period had expired (but before the 90-day grace period in RCW 4.16.170 did). The court held that the action was commenced when the summons and complaint was filed and the 60-day waiting period requirement was, therefore, violated. The court stated: “This illustrates the flaw in Schmitz’s argument. He contends, on the one hand, that the action was not commenced under RCW 4.16.170 when he filed his complaint in superior court on July 19 and, therefore, he did not violate the 60-day waiting requirement of RCW 4.92.110. However, in order to obtain the 90-day grace period of RCW 4.16.170 which would make his October 17 service on the State timely, he must concede that the action was commenced for statute of limitations purposes on July 19 when the complaint was filed. Accordingly, under the facts of this case, we conclude that the filing of the complaint did commence the action as provided in RCW 4.16.170.” 

The 60-day waiting provision “essentially” adds 60 days to the end of the applicable statue of limitations.8

3. Right Department, Wrong Location

The state statute requires that the claim be served on the Office of Risk Management, in Olympia.9 The non-judicial claim service requirement should not be confused with the service of the summons and complaint which must be served on the attorney general, by leaving the summons and complaint in the Office of the Attorney General with the attorney general or an assistant attorney general.10 In Kleyer v. Harborview Medical Center, the plaintiff served his tort claim on a claims manager in the Department of Risk Management at the University of Washington, not the office of Risk Management in Olympia.11 The risk manager denied the claim and offered $8,000 in settlement. After suit was filed, the case was dismissed on motion by the defendants based on failure to serve the claim on the Office of Risk Management in Olympia even though the claim would have been referred to the risk manager who was served for handling. As to municipalities, each entity must designate an agent who will receive all claims for damages and the claim must be served on that agent.12 In Nichol v. Snohomish County Sheriff’s Dept., the plaintiff submitted a claim with an agent of the county who was not authorized to accept such claim on the county’s behalf — even though the county had designated an agent for accepting claims. The Nichol court dismissed the case based on plaintiff’s failure to meet the strict prerequisites of filing a claim under RCW 4.96.13

4. Even if the Case Is Brought Only Against Individuals, a Claim Must Be Filed if They Are Agents of a Governmental Entity

In Bosteder v. City of Renton, the plaintiff filed a claim for damages with the city and later served a copy of a summons and complaint on the city, naming as defendants the city as well as several employers of the state.14 The Washington State Supreme Court concluded that the tort claim filing requirement applies to suits against individuals when the alleged acts were committed in the scope of their employment. The Bosteder court dismissed the individual defendants from the action because the alleged acts were committed within the course of their employment and the plaintiff had failed to properly file a tort claim.

In Woods v. Bailet, the court dismissed the plaintiff’s medical malpractice case for failure to file a tort claim, holding that Pac Med (a public corporation organized by the City of Seattle) was a local governmental entity as defined in RCW 4.96.010.15 The dismissal included the claims against the individual physicians, with the court holding that the doctors who performed surgery on the plaintiff were Pac Med employees and could not be sued individually in the absence of a properly filed tort claim. See also Hardesty v. Stenchiever, where the court dismissed a medical malpractice case against individual University of Washington-employed physicians in the absence of a proper tort claim filing.16

5. Hospitals Can Hurt You

By all appearances, Valley Medical Center (VMC) in Kent is a privately owned hospital. The owner of VMC is, however, King County, through King County Public Hospital District No. 1. Nearly every county in the state has a hospital operated by a county-owned public hospital district. The Washington State Department of Health publishes a Directory of Community Hospitals and the Association of Washington Public Hospital Districts has a website (www.awphd.org), each of which should be consulted before suing any hospital. The State of Washington, of course, operates the University of Washington Medical Center, but it also deploys its residents and physicians employed by it to Children’s Hospital and Harborview Medical Center, among others. If you are representing a plaintiff in a medical negligence action against a public hospital district and you do not file a claim prior to filing suit, or if you have a case against the University of Washington or any of its physicians, interns, or residents (see the following sections) and you do not file a claim with State of Washington Department of Risk Management, you have not complied with a statutory condition precedent to filing suit, the case has been defectively commenced and it will be dismissed.

6. Not Just Torts, But Contract Claims Too (Sometimes)

The language of RCW Chapter 4.92 clearly indicates, and Washington courts have determined, that the claim-filing requirement applies to actions against the state arising out of the state’s tortious conduct only. In Horst v. State, the plaintiff filed a tort claim with the State of Washington’s Office of Risk Management, seeking damages under several tort claims and a breach of contract claim. The court concluded that because RCW 4.92.110 does not apply to claims against the state other than those arising out of tortious conduct, the statute of limitations was not tolled for 60 days for the breach-of-contract claim. Thus, because the plaintiff filed her breach-of-contract claim after the three-year statute of limitations had expired (believing that the statute was tolled for 60 days), the court dismissed the claim as time barred. On the other hand, Washington courts have interpreted RCW Chapter 4.96 to apply to both claims arising out of tortious and non-tortious conduct.17 In Harberd v.City of Kettle Falls, the Division III Court of Appeals held that the general requirements of the government claim-filing statute apply to all damage claims, while more specific requirements apply solely to claim arising out of tortious conduct. Accordingly, any person asserting a claim of damages must first file a claim of damages since the applicable claim filing provisions apply to both tort and breach of contract claims.18
 
How to Protect Your Client (and Yourself)

As soon as you open a file, immediately identify each governmental defendant and the agent for receiving a claim. Prepare and serve the claim as soon as you have identified a governmental defendant. If you need to wait, note the claim service requirement on your case list and calendar. When you prepare your complaint, always contain an averment that the plaintiff has complied with the procedural requirements of the statute — force the defendant to expressly admit or deny that you have complied and follow up with a request for admission or interrogatory as necessary. In medical-negligence cases, always check to see if the defendant is a public hospital district. Serve a claim even if the error occurred in an emergency room and it is operated by a corporation distinct from the hospital (as they often are), even if you do not intend to rely on the doctrine of ostensible agency. 

Mark A. Johnson practices plaintiffs’ professional liability and personal-injury law at the law firm of Johnson-Flora, PLLC in Seattle. He served on the WSBA Board of Governors from 2003-2006. He took office as WSBA president-elect in September and will become WSBA president in September 2008.
 
NOTES
 1.  Brevick v. City of Seattle, 160 P.3d 648 (2007).
 2.  Levy v. State, 91 Wn. App. 934, 957 P.2d 1272 (1998); Schoonover v. State, 116 Wn. App. 171, 64 P.3d 677 (2003), Shannon v. State, 110 Wash.App. 366, 40 P.3d 1200 (2002); Fields v. Knauss, 118 Wn. App. 1034, WL22080224 (2003).
 3.  Reyes v. City of Renton, 121 Wn. App. 496, 86 P.3d 155 (2004).
 4. Troxell v. Rainier School District No. 307, 154 Wash.2d 345, 111 P.3d 1173 Wash., (2005).
 5. Sievers v. City of Mountlake Terrace, 97 Wn. App. 181, 983 P.2d 1127 (1999).
 6.  Medina v. PUD No. 1 of Benton County, 147 Wn.2d 303, 53 P.3d 993 (2002).
 7.  Pirtle v. State, 83 Wn. App. 304, 921 P.2d 1084 (1996).
 8.  Castro v. Stanwood School District No. 401, 151 Wn.2d 221, 86 P.3d 1166 (2004).
 9.  RCW 4.92.100; RCW 4.92.210(1). 
 10.  RCW 4.92.020.
 11.  Kleyer v. Harborview Medical Center, 76 Wn. App. 542, 887 P.2d 468 (1995). Harborview Medical Center is a county hospital managed by the University of Washington.  Serve both a county and state tort claim when suing Harborview.
 12.  4.96.020(2).
 13.  Nichols v. Snohomish County Sheriff’s Dept., 2003 WL 21061472 (2003).
 14.  Bosteder v. City of Renton, 155 Wn.2d 18, 117 P.3d 346 (2005).
 15.  Woods v. Bailet, 116 Wn. App. 688, 67 P.3d 511 (2003).
 16.  Hardesty v. Stenchiever, 82 Wn. App. 253, 917 P.2d 577 (1996).
 17.  Skvorak v. Thurston County, 2006 WL 461045 (W.D. Wash.).
 18.  Harberd v. City of Kettle Falls, 120 Wn. App. 498, 84 P.3d 1241 (2004), review denied, – P.3d –, 2004 WL 2709636 (Nov. 3, 2004).