### FILED 

### NOVEMBER 16, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III



### COURT OFAPPEALS, DIVISIONIII, STATE OFWASHINGTON
WILLIAM RUMBURG and CAROL RUMBURG, husband and wife and the marital community comprised thereof, Appellants, V. FERRY COUNTY PUBLIC UTILITY DISTRICT #1, A PUBLIC UTILITY COMPANY; and JOHN DOE(S), Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 34572-6-111

ORDER WITHDRAWING OPINION

THE COURT on its own motion finds that the opinion filed November 16, 2017, should be withdrawn. Therefore, IT IS ORDERED, the court's opinion filed November 16, 2017, is hereby withdrawn and a new opinion will be filed this day. PANEL: Judges Siddoway, Pennell, Korsmo FOR THE COURT:

### FILED NOVEMBER 16, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE WILLIAM RUMBURG and CAROL RUMBURG, husband and wife and the marital community comprisedthereof, Appellants,


### v. FERRY COUNTYPUBLIC UTILITY DISTRICT #1, 

### A PUBLIC UTILITY COMP ANY; and JOHNDOE(S), Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) 

### No. 34572-6-111

PUBLISHED OPINION

SIDDOWAY, J. -Atissue is whether William and Carol Rumburg timely filed suit undertolling and grace periodsprovidedby RCW4.96.020, the local government tort claim filing statute. After serving a second notice ofclaim on local government defendants and allowing 60 days for the defendants to respond, the Rumburgs relied on the statutory 5-day grace period in filing suit. The respondents contendthatthe 5-day graceperiod could apply only afterthe Rumburgs' first, early, notice ofclaim. In resolving reasonable questions about how the tollingprovision operates, the Washington Supreme Courthas provided a bright-line clarification, repeated several times inpublished decisions, that the tolling provision adds 60 days to the end ofthe

### No. 34572-6-111 Rumburg v. Ferry CountyPUD #1


### otherwise applicable statute oflimitations. Given this construction ofthe statute and its 2009 amendment requiring procedural requirements to be "liberally construed so that substantial compliance will be deemed satisfactory," we construe RCW 4.96.020(4) to apply the 5-day grace period after the 60-day extension ofthe statute oflimitations. The Rumburgs' action was timely. PROCEDURAL BACKGROUND On July 16, 2012, William Rumburg suffered injuries at an event in Republic City Park from the collapse ofa tent set up by Ferry County Public Utility DistrictNo. 1 (PUD). Mr. Rumburg submitted a handwritten notice oftort claim to the PUD on November 30, 2012. Nearly two and a halfyears later, on June 28, 2015, the Rumburgs had their first consultation with their current lawyer. The lawyer, unaware ofthe earlier notice oftort claim, filed a second notice ofclaim on July 14, 2015. Sixty-three days later, on September 15, 2015, he filed a summons and complaint. The PUD eventually filed a motion to dismiss the Rumburgs' action as time barred, based on the more than 3 year and 60 day passage oftime between Mr. Rumburg's July 16, 2012 injury and the September 15, 2015 commencement ofthe lawsuit. 1 

### The trial court granted the motion to dismiss. The Rumburgs appeal.

1 

### The parties do not dispute that the three year statute oflimitations providedby RCW 4.16.080 applies. 2 

# t

### No. 34572-6-111 Rumburgv. Ferry CountyPUD #1
ANALYSIS In chapter 4.96 RCW, the legislature has waived the sovereign immunity oflocal government entities and their officers, employees or volunteers, buthas required that "[f]iling a claim for damages within the time allowed by law shall be a condition precedent to the commencement ofany action claiming damages." RCW4.96.010(1). After a notice ofa tort claim is presented to a local government defendant, the plaintiff must wait until 60 days have elapsed before commencing a lawsuit. RCW4.96.020(4). "The purpose ofthis claim is 'to allow government entities time to investigate, evaluate, and settle claims' before they are sued." Renner v. City of Marysville, 168 Wn.2d 540, 545,230 P.3d 569 (2010) (quotingMedina v. Pub. Util. Dist. No. 1 of Benton County, 147 Wn.2d 303, 310, 53 P.3d 993 (2002)). The notice ofclaimrequirement would effectively shorten the limitations period for tort claims against local government defendants by 60 days were it not for parallel language in RCW 4.96.020(4) that tolls the period oflimitations for 60 days. Although it is never a good idea to wait to commence a lawsuit until shortly before the statute oflimitations expires, procrastination proved especially perilous for parties suing local government defendants under former RCW 4.96.020(4) (2006). For a plaintiffwhose action would otherwise become time-barred in the 60 days following a notice ofclaim, there was at most one day on which suit could be commenced without

3No. 34572-6-111 Rumburgv. Ferry CountyPUD #1 being too early (and violating the 60-day waiting rule) or being too late (and timebarred).2 The difficulty was illustrated in Medina. In that case, the plaintifffiled his notice oftort claim for personal injury 2 days before the statute oflimitations would expire. Medina, 147 Wn.2d at 307. The county denied the claim after only a week. Id. at 308. Theplaintiffthen waited until 56 days had passed from the date ofhis notice ofclaim before filing suit. Id. Although his lawsuit was timely under the statute oflimitations given the 60-day tolling period, our Supreme Court affirmed dismissal ofthe lawsuitbecause he commenced suit too soon: he did not wait for the full 60-day waitingperiod to run. Id. at 307. The courtrefused to construe the statute as creating a variable waitingperiod that ended in Mr. Medina's case when the PUD denied his claim. Id. at 318. In a dissenting opinion, Justice Chambers identified the problem with the identical 60-day waiting and tolling periods for plaintiffs whopresent a notice ofclaim within 60 days ofthe expiration ofthe statute oflimitations. Because such actions would become time-barred during the waitingperiod but for the companiontolling period-andbecause the tolling period is exactly equal to, not longer than, the waiting period-"Medinawas

2 We say "atmost," because in Troxell v. RainierPublic SchoolDistrictNo. 307, the Supreme Court recognized that given its construction ofthe statute, a claimant who waited until the last day ofthe original statute oflimitations periodto serve notice ofa claim would find it impossible to both comply with the waitingperiod and commence suitbefore becomingtime-barred. 154 Wn.2d 345, 356, 111 P.3d 1173 (2005); andsee id. at 364 (Chambers, J., dissenting). 4

### No. 34572-6-III Rumburgv. Ferry CountyPUD#1 

### required by unyielding law to file his complaint on a single magic date; 

### precisely 60 days after the notice was filed
.... No margin oferror, according to the majority, is permitted,
even an error in favor oftimely compliance." Medina, 

### 147 Wn.2d at 327-28 (Chambers, 

### J., dissenting) (emphasis added). In 2009, RCW 4.96.020(4) was amended. Arguably in response to this timing difficulty for plaintiffs with claims against local government defendants, the amendments provided a 5-day grace period. Statutory construction ofthat amendment and earlierenacted language identifying the 60-day waiting and tolling periods proves critical here. Statutory interpretation is a question oflaw that we review de novo. Jametsky v. Olsen, 

### 179 Wn.2d 756,761,317 P.3d 1003 (2014). Our fundamental objective is to ascertain and carry out the legislature's intent, and ifa statute's meaning is plain on its face, we give effect to thatplain meaning as an expression oflegislative intent. Dep 'tof Ecology v. Campbell & Gwinn, LLC, 

### 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002) "If

### the statutory language is susceptible to more than one reasonable interpretation, then a court may resort to statutory construction, legislative history, and relevant case law for assistance in discerning legislative intent." Christensen v. Ellsworth, 

### 162 Wn.2d 365, 373, 173 P.3d 228 (2007). Applying the statute to the facts ofthis case, we agree with the PUD that only the Rumburgs' first, November 30, 2012 notice ofclaim triggered a 60-day waiting period.



### 5No. 34572-6-111 

### Rumburgv. Ferry County PUD #1
Thatresult follows from theplain "firstpresented" language ofRCW4.96.020(4) highlighted below: No action subjectto the claim filing requirements ofthis section shall be commenced
. . . until sixty calendar days have elapsed afterthe claim 

### has first beenpresentedto the agent ofthe governing body thereof. (Emphasis added.) This is not a case in which the Rumburgs filed two substantively different claims. 

### CfMedina, 147 Wn.2d at 310 (property andpersonal injury claims
were distinct and separate, and each was subject to RCW 4.96.020(4)). The 60 days elapsing after the Rumburgs' claim was "firstpresented" ran from November 30, 2012 to January 29, 2013, a period whenthey were not atrisk oftheir claim becomingtime-barred and did not need the statute oflimitations "tolled," in the
sense of"take[n] away," "ma[de] null," or "remove[d]." 

### See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 2405 (1993). Inthis respect, their case is like 

### Castro V. 

### StanwoodSchoolDistrictNo. 401, 151 Wn.2d 221, 86 P.3d 1166 (2004), in which a student's notice ofclaim was presented to the school district well before the expiration of any limitationperiod. The district argued that RCW 4.96.020 should be construed as only tolling the statute oflimitations ifneeded to carry a plaintiffto the end ofthe 60-day waiting period. 

### Castro, 151 Wn.2d at 223. Since the student did not need the 60-day reprieve to avoid a time bar, the district argued he was not entitled to extend the limitations period by 60 days. The Supreme Court disagreed. It concluded that the legislature intended to assure a person injured by the negligence ofa local government 6No. 34572-6-111 Rumburgv. Ferry CountyPUD #1
defendant the entire number ofdays provided by the three-year statute oflimitations period, and that days lost to the waitingperiod mustbe made up later. "Essentially, the provision adds 60 days to the end ofthe otherwise applicable statute oflimitations." 

### Id. at 226.The fact that the Rumburgs did not enjoy a second 60-day period following their second notice ofclaim is not what led to dismissal oftheir claims. Their lawyer, unaware ofthe first notice ofclaim, assumed that the statute oflimitations onthe Rumburgs' claim would expire on July 16, 2015. Given theirright to have 60 days added, the limitations period would expire instead on September 14, 2015. The Rumburgs are not contending they were entitled to two 60-day tolling periods. Rather, the parties' dispute is over whether the Rumburgs could claim the benefit ofa five-day grace period for filing suit, added by amendment in 2009. The following sentence was added to RCW 4.96.020(4) by the 2009 legislation: Forthe purposes ofthe applicable period oflimitations, an action commenced within five court days after the sixty calendar day period has elapsed is deemed to have beenpresented onthe first day after the sixty calendar day period elapsed. LAWS OF 2009, ch. 433, § 1. The Rumburgs' lawyer waited 60 calendar days from the second notice ofclaim,
or until Sunday, September 13, 2015, and relying on the 5-day grace period filed the
summons and complaint on Tuesday, September 15. The last day to file withoutthe 5-
7No. 34572-6-111 

### Rumburg

### v. Ferry County PUD#1 day grace period was Monday, September 14, 2015. The last day to file 

### with the 5-day grace period was Friday, September 18, 2015. The language in the amendmentto RCW 4.96.020(4) critical to this appeal is "an action commenced within five court days after 

### the sixty calendar dayperiodhas elapsed." (Emphasis added.) There are arguably two "sixty calendar day period[s]" addressed by the statute, since RCW4.96.020(4) "has two subparts. One subpart sets the time that a government entity must be given to investigate and settle a claim, and the other tolls the statute oflimitation during that time." 

### Troxell v. 

### RainierPub. 'Sch. Dist. No. 307, 154 Wn.2d 345, 361, 111 P.3d 1173 (2005) (Chambers, J., dissenting). The 

### waitingperiodhas been characterized as a period of"intervening days." 

### Id. at 354-55. By contrast, the 

### tollingprovision has been consistently characterized as "'add[ing] 60 days to the end ofthe otherwise applicable statute oflimitations."' 

### Id. at 349 n.2 (quoting 

### Castro, 151 Wn.2d at 226); 

### accordEstate of Connelly v. 

### Snohomish County Pub. Util. Dist. No. 1,145 Wn. App. 941,945,187 P.3d 842(2008). It was clearbefore the 2009 amendmentthatthe tolling provision added 60 days to the end ofthe otherwise applicable statute oflimitations, so it is not clear which "sixty calendar day period" the 5- day grace period is intendedto follow. A new subsection (5) added to RCW4.96.020 by the 2009 legislation tells us how to construe the statute inthe event its language is not clear:

8No. 34572-6-111 

### Rumburgv. Ferry CountyPUD #1
Withrespect to the content ofclaims under this section and all procedural requirements in this section, this section must be liberally construed so that substantial compliance will be deemed satisfactory. LA

## ws OF 2009, ch. 433, § 1. Our Supreme Court has interpreted "substantial compliance" in the context ofclaim filing statutes to require that the claimant make a bona fide attemptto comply withthe law and that its actions actually accomplish or advance the statute'spurpose. 

### Renner, 168 Wn.2d at 545-46 (citing

### Brigham v. City of Seattle, 34 Wn.2d 786,789,210 P.2d 144 (1949)). The Rumburgs have demonstrated a bona fide attempt to comply with the law, and the filing ofa second, lawyer-prepared notice ofclaim following the earlier notice handwritten by Mr. Rumburg advanced the statute'spurpose. Liberally construing the statute to allow for substantial compliance supports construingthe 5-day grace period as following the 60-day extension ofthe statute oflimitations.3 The PUD nonetheless argues that there is some evidence the legislature intended the 5-day grace periodto address the timing trap that arose only for claimants providing late notices ofclaim, whose waitingperiod coincides with the 60 days added to the otherwise applicable statute oflimitations. In essence, the PUD argues that the 5-day grace period was only intended to help tort claimants who "needed"the margin oferror.

3 Construing RCW 4.96.020(4) in this way is different from holding that a tort claimant can substantially comply withthe statute oflimitations. We agree with the PUD that allowing substantial compliance with the limitations periodprovided by RCW 4.16.080 would beproblematic. 9No. 34572-6-111 

### Rumburg v. Ferry County PUD #1
Butconstruing the statute as extending the benefit ofthe 5-day grace periodto all tort claimants is consistent with the Supreme Court's earlier construction ofRCW 4.96.020(4) as extending the benefit ofan additional 60 days to all tort claimants, notjust those who "needed" the extra 60 days. Local governments cannot reasonably complain about a merely 5-day margin oferrorbeing extended to all tort claimants. We reverse the trial court's dismissal ofthe Rumburgs' complaint and remand for further proceedings. 

# ?J~w i \),_. oway, 

### J. 

# =() (f WE CONCUR:

Pennell, J.

10