*1 April 18, En 42221. Banc. [No. 1974.] Guardian, John P. v. Appellant, Cook, Respondent. Washington, Holt R. M. (of Cushman, Thomas & Holt), appellant. Slade Gorton, Attorney General, and Edward G. Holm Angelo Petruss, R. Assistants, for respondent. Erie Richards, Duane Horswill, W. and Horswill, Keller, Rohrback, Waldo Dan Moren, & Sullivan, amici curiae. July vehicle in J. On
Hamilton, riding Karen collided with a Shockley 13-year-old be- roadway next Highway located stump Prior Carnation, Washington. City Fall tween her mother had resided with and three Karen accident killed in the one whom was accident children, other mother, from her resided in the father, divorced in suit. Her part of and offered her no advice. the United States eastern only eighth grade had education and Karen mother an Her unsatisfactory in school had been retained due herself *2 grades. injury accident, of Karen suffered an a result the
As system paralysis from the which caused waist her nervous leg, injury shoulder, a a broken left broken down, leg, hip, left left side, broken ribs the broken a the left ruptured spleen surgical pelvis, requiring a re- broken injury kidneys liver and re- moval, bladder, severe surgical repair, quiring and a near tail- bone removal the January hospitalized until was when bone. She a her to wheelchair she returned to mother’s confined During hospitalization period, her mother home. was vitally primarily health and concerned with Karen’s and recovery. or The first time Karen her mother learned of a liability pаrt potential on the of when her the state was attorney concerning contacted an another matter on mother a Thereafter, 27, 1970, 1970. on March claim March warning charging post signs a failure stump right-of-way, remove from the was filed and to attorney. present This claim on Karen’s behalf her days within after Karen’s filed with state auditor filing hospitalization, although from fact oc- release days the date the accident. curred a full from of King County Superior upon Court the suit dismissed requirements 4.92.100,our basis that the “non- RCW statute, more than 120 met, claim” not been in that had days elapsed had the date of the accident and the between filing aof claim. statutory part of a
The instаnt “nonclaim” statute is up provide of the is scheme which set for agents: for the tortious conduct of its govern- acting Washington, in its The state of whether proprietary capacity, or for mental be liable dam- shall ages arising to the same extent out of its tortious conduct private person corporation. if it were a or p. § (Laws 753; Laws of 159, 2, ch. 4.92.090 1680); p. § 136, 1, ch. arising damages out state for All claims presented to and filed with tortious conduct shall be days twenty from the state auditor within one hundred veri- claims shall be date that the claim arose. All such accurately conduct and cir- fied and shall describe the injury damage, brought or cumstances which describe the about the рlace injury damage, and or state the time injury damage of all the names occurred, state persons involved, known, if contain the amount shall damages together claimed, with statement presenting actual residence of the time of the claimant at filing the claim imme- six months diately prior to the time claim If the claimant arose. incapacitated verifying, presenting, is from his prescribed claim in the time minor, or if the claimant is a during or is a nonresident the state absent therefrom required the time within the claim claim filed, which his presented, be verified, and filed on behalf *3 by any attorney, agent repre- of the claimant relative, senting him. respect With of content such сlaims this section liberally compli- shall be construed so that substantial satisfactory. ance will be deemed (Laws RCW p. 4.92.100 § of 1967, 164, 793; ch. of 2, Laws p. 753); 1963, § 159, ch. 3, against No action shall be commenced the state for
damages arising out of tortious conduct until a claim has presented first been to and filed with the state auditor. requirements The appli- of this section shall not affect the period cable of limitations within which an action must be begin commenced, but such shall and shall continue to required. run as if no claim were (Laws p. 754). § 4.92.110 of 159, 4, ch. These passed pursuant modifying statutes have been to and sovereign immunity, doctrine of and constitute a direct re sponse legislative obligation tо control and condition against suits § art. 26.1 as commanded Const. manner, law, 1“The shall direct in what and in what brought courts, suits Const. art. 26. state.” § (Italics ours.) appeal, plaintiff
In this contends that RCW 4.92.100 barring .110, Karen’s action the state for timely deprives guaran- failure to claim, file a Karen of the tees of the fourteenth amendment to the United States including process equal protection Constitution, due urges the laws. Plaintiff that the “nonclaim” statute in its entirety be declared invalid.
Although judgment we reverse the of the trial court plaintiff’s reinstate claim, broad, we decline to do so on the sweeping grounds by plaintiff, advocated for to do so vestiges would, in view, our abolish all the doctrine sovеreign immunity implicitly every other invalidate county, municipal, and district nonclaim ordi- statute, provision.2 nance or support invalidity, plaintiff of the contention of total heavily Highway Dep’t,
relies
on Reich v. State
386 Mich.
(1972).
Michigan
617,
We find the Reich case
rea
and its
soning unpersuasive.
Michigan high
pre
court had
viously interpreted
Michigan
constitution and the tort
providing
sovereign
claim statutes as
an
absolute waiver
immunity, thereby giving
right rise to a vested
action.
Grubaugh v. St. Johns,
384 Mich.
We are sаtisfied that our condi its immunity, tional waiver of as evidenced tort justifiably cognizant RCW 4.92.090,.100 and .110,was responsibilities § its under Const. realis art. 26 and practical private tic and differences between tort-feasors political potential and the state and its subdivisions political tort-feasors. The state and its subdivisions with departments, agencies, the multitude of ployees and em officers widespread and their diverse and activities, touch ing virtually every aspect of life within the render inherently the state and its subdivisions different from ordinary private opposed tort-feasor. Public funds as private funds are involved. The number of claims governmental agencies vastly greater against any than private ordinary private individual tort-feasor. An tort-fea normally immediately involving sor is aware of an incident potential liability, whereas claim statute is usually only sure and certain the state means which potential its subdivisions be alerted to aris ing governmental activity. from a These considerations we adequate import 4.92.100and believe sustain the
.110 challenge process the constitutional on due and equal protection grounds advanced Reich. remaining question,
The then, is whether within the sub- class of victims of tort there exists due process protection equal or respect, discordance. In this it is our incompatability view that there does arise an with due procеss equal protection requirements, only and in but and with an unyielding application por- inflexible and of that provides: tion of 4.92.100, RCW which If incapacitated verifying, claimant present- from ing, claimant filing prescribed and his claim in the time or if the is a minor, . . the claim be verified, presented, by any and filed on behalf of the claimant attorney, agent representing relative, or him. minority, physical Given injuries, Karen’s hospi- severe major surgery, coupled talization, and with her mother’s grief, worry, asserted disadvantage, and educational it appear manifestly unjust would fundamentally unfair apply above-quoted portion of RCW 4.92.100 as to permit compliance no excuse from strict with rеquirement. place, totally time In the first it is unrealistic require 13-year-old severely lying Karen, while in- jured paralyzed hospital in the months, for 6 should, days prepare within verify of the accident, a claim anyone or direct her mother or else to do so on her behalf. place, In the second it would be almost as unconscionable require allegedly that Karen’s mother, unlettered stricken greatly with the death of one child and concerned over the survival of a second, ferret out the facts of the pertaining potential liability accident, the law and the filing requirements, thereupon file a claim as Karen’s representative during or solicit the aid of another to do so hospital. the course of Karen’s first months Certainly, enacting the aforementioned proviso to 4.92.100 could not have intended such a unjust invidiously harsh and result —a result discrim- tortiously injured inates between those who are point physical incapacity mental for or more months disabling and those who are more fortunate and suffer less injuries. possibility may pos- that a friend or relative foresight timely sess the to file a claim on behalf of an incapacitated provides victim, in view, our too slender a bridge reed inherent discrimination, and it becomes arbitrary penalizes incapaci- and unreasonable when *6 through igno- tated if a friend or relative inadvertenсe or rance fails to act.
Early
history,
recognized
in this court’s
we
the manifest
injustice
rigid
unyielding imposition
pre-
of a
of time
scriptions
provisions upon persons incapaci-
in “nonclaim”
tated
the accident in suit. We held that it
at
became
question
incapacity
least a
of fact whether
from the acci-
prevented timely compliance
appli-
dent involved
with an
provision.
Spokane,
cable “nonclaim”
Born v.
719,
27 Wash.
(1902);
Although is a division of to ex- there as cusability compliance from strict time limitations in with provisions (Tort among “nonclaim” other state courts Against Entity Annot., Public 44 A.L.R.3d Notice, Claims — (1972)), reinvigorating Born now, we would neigh holding, adopt Supreme of the Court of our view boring Ketchikan, forth in Maier v. Alaska, as set (Alas. 1965), 403P.2d 34 at 37: adopt file a notice of claim We the view that failure to city prescribed charter
within the time disability claim excused because of the from which the disability after the arose and until reasonable time justice persuades us ceases. essеntial of such a view adopt jurisdiction. appellant If, contends, it for this city, injured negligence he was basically of the would be deprive unfair to him of recourse to the courts injuries prevented complying if the him from suffered permit requirements to with the notice such To charter. possible situation occur would make it for the city advantage wrong. to take of and benefit from its own concep- This would not be with our consistent traditional play justice. tion of fair and substantial Any holding other would, view, in our to due do violence process equal protection concepts. cases, In such where incapacity justify the days it, facts deem that 120 we would disability from removаl of a rea- would constitute sonable time within which a claim could be filed.
Accordingly, we reverse the order of dismissal and re- mand the cause for trial on the merits.
Hale, C.J., Brachtenbach, and Rosellini, Hunter, JJ., concur. *7 by (concurring) primary presented J. issue
Utter,
—The
plaintiff-appellant’s
personal
the dismissal of
in-
action for
jury damages against
120-day filing
the state is whether the
period requirement of RCW
violates the constitu-
4.92.100
protections
protection
process
equal
tional
of the
and due
clauses of the Fourteenth Amendment.
4.92.100 has
constitutionally challenged
never been
court,
in this
al-
though
previous
provi-
on one
occasion
its
we construed
O’Donoghue
sions.
v. State,
66 Wn.2d
The protection рrocess equal due to those a denial of persons asserting for al- of action the state causes legitimate provision leged has no acts. The tortious permit required supporting discrimi- it which is interest arbitrary natory operates in an It also classification. denying process. manner, the citizen due unreasonable majority opinion, agree reached I with the result disagree violation to find a broad with its refusal but process protection equal and due clauses. protection, equal under whether, test to be met is 120-day filing period requirement a classifica creates reasonably any legitimate state related to
tion is which process nоn- of law a interest, and under the due whether arbitrary, equitable classification exists. and reasonable 940, 54 Ct. York, Nebbia v. New 78 L. Ed. S. U.S. Lloyd (1934); 505, 89 Garretson Co. v. Robin A.L.R. Dwyer, (1934); son, Clark v. Wash. 353P.2d 941 425, 435, Wn.2d
For these clauses the Fourteenth Amendment single, invoked, there must be a identified class which is threatened an invalid and there must be classification liberty, property by improper life, or is threatened process. identify To of victims and the class considered presence any property gov- right, the state’s waiver of immunity analyzed. tort ernmental must be immunity government If the has waived its in tort and is potential aspect, like all other tort-feasors this then there only acts, one class of victims of tortious and not two identity dependent on classes, whether the the tort-fea- government private. government If sor is has waived immunity created a tort, its has cause action—a property right longer proven claims no frustrate —and permissible this once defense. abolishing governmen- I believe the text of RCW 4.92.090 immunity interpreted it, tal and the case law that has clearly establish our state has waived its liability. By given from tort statute, this the state has rise prior to a cause action which had not existed to its immunity. only enactment because of Not *8 immunity governmental does this waiver of tort create a in by state, vested in victims of tortious conduct the places subject upon legal plane also the stаte the same legal to the same other tort-feasors. rules as entitled “Tortious conduct of state —Lia- 4.92.090, § damages” bility 1961, 136, enacted in ch. was Laws for 608 by § 1963, 159,
1 and amended ch. 2. first Laws We Tacoma, 913, construed RCW 4.92.090in Kelso v. 63 Wn.2d (1964). previous ruling recognized 2 390 P.2d We there our immunity governmental existed, that it was for that in tort legislature change leg- condition, and found the change public policy islature announced the in our state’s by enacting Seattle, in 43 RCW 4.92.090 1961. Kilbourn v. (1953). Wn.2d 261P.2d 407 emphasize policy change to tort
To further clear in immunity, page Kelso, we in at 918: “If there is stated statute, 1961 room for doubt as to what was intended it has of the statute been removed the amendment legislative part, changed the 1963 This in session.” language maintaining of “consents to the of a suit damages” action be liable for dam- it for “shall ages.” (Italics mine.) by declaring leg- Kelso concluded very change islature had made its intention clear to policy “[t]he im- state and doctrine of munity preserved supra Tacoma, was not . Kelso v. at Seattle, 918-19. Hosea v. Wn.2d Evangelical reviewing
The next case RCW 4.92.090 was State, United Brethren 407 P.2d Church v. 67 Wn.2d (1965), emphasized, page again where we at 252: question There can be no but that the enactment (RCW 4.92.090) § Laws of ch.
intended to on a the doctrine of sov- abolish broad basis ereign have so held tort in this and we Evangelical these There are limitations in the case but pertain limitations are substantive character and scope given meaning (discretionary to be of tort example) not refer at all to ministerial, and do procedural altogether in an different conditions established statutory .100), provision (section relate to consent only. to suit unequiv- previous conclusions and the
Based our own language there can be no other conclu- .090, ocal of section *9 immunity for tort has sion that but appli- permits an been waived in this state. This conclusion guarantees which cation the Amendment Fourteenth 120-day filing period we deal the is under attack because property right single in with a and a this class victims cause of action. relationship immimity
Thе of the of tort the waiver with previously consent to be has been in sued discussed O’Donoghue supra. deciding question v. In the before State, page things it, court noted, 788, the at two distinct chapter (RCW passage occurred in the Laws 4.92). Washington sovereign First, “the State of waived its immunity [second] and consented to action it for arising damages (Italics mine.) out of its tortious conduct.” provided history filing The court then requirements, filing period found the which is now under passed prerequi constitutional attack was in 1963 and is a beginning site to the suit or action and is enacted pursuant § Thus, Const. art. 26. section .100 was not prerequisite immunity, found be a to the waiver of tort beginning but rather it conditions the of the suit or action. By characterizing filing period requirement, so as pursuant enacted recog- article section court O’Donoghue, page nized in at 790, that the issue in inter- preting “procedural section .100 was or remedial rather affecting right.” right than one a substantive The referred remedy is the claim and the is the enforcing right injury. means of to redress In this right recognized immunity case the is the waiver of tort only validity and we are then concerned with the of limita- remedy procedures. remedy on the then, essence is 0ans procedure right. law to enforce a right remedy, This difference between between immunity explicitly suit, and consent of tort waiver O’Donoghue, pages forthrightly at 790-91: stated provides . [and] . 4.92.090 “RCW provide procedure for realiza- 4.92.110 4.92.100 filing right.” period are claim and the tion of that interpreted procedural requirements not be imposed tort im- the substantive waiver conditions munity. gave recognition to the difference
Our case law first
clear
its consent
of tort
between the state’s waiver
Billings
P. 583
State,
to suit
Wash.
*10
Billings,
superior
of an
a
court dismissal
In
we affirmed
by
damages
the mis-
caused
contract,
action to recover in
agent.
brought under an
The action was
conduct of a state
ap-
against
permitted
the state. The
suits
1895 law which
provision permitting
pellant argued
not
suit was
that the
only
the state’s
suit,
but was also
the state’s consent
Finding
immunity in all
transactions.
waivеr of
business
pursuant
provision
2,
to article
at issue was enacted
rejected appellant’s contention and
26,
section
the court
by consenting
page
to be
did
state,
sued,
held,
293,
at
“The
retained all its
to defend” and “has
not
waive
legal rights”
re-
not
...
become
and “has
consented
negligence
sponsible
or
of its officers
the misconduct or
for
Billings
emphasized
being
agents”.
was that
What
legislature
directing the
to establish
26,
article
section
impose
procedures
suing
not
new liabili-
did
for
upon
responsibilities
state, nor was it a waiver
ties or
any legal
defenses.
(1912), we
329,
In Riddoch v. 68 Wash. governmental unit for dam action had the first injuries. ages personal dismissed for The actiоn was jurisdiction, superior and dismissal was court for lack of analy began Supreme The court its Court. affirmed Hypoth by affirming & Pac. in Northwestern sis the view (1897) P. 586 State, eek Bank v. Wash. Billings supra, State, that article section v. liability, imposes no no cause creates action— independently would exist' none state, where provide merely a rem- directs It
of it. recognized at common law as edy of action causes sovereign statute. or created against (Italics mine.) supra Thus, at 332. State, Riddoch v. legislation, pursuant mandate, enacted to the constitutional only provides remedy liability impose and does new any Billings, opinion or waive defense. As in the Riddoch distinguishes pursuant the consent to suit established article section and the waiver immunities or defenses. proceeded
The Riddoch court then the rule announce nonliability upon for torts which was found to be based obligation upon absence of and not mere absence of rem- edy. page The dismissal was then at affirmed, 340, because whereby There is no statute this state has assumed a
liability negligence for the or misfeasance of its officers agents, principle find we no established of law sustaining such a in the absence of such statu- tory assumption. We legislative now, assumption however, have the of liabil- ity in tort due to the waiver of tort in RCW 4.92.090, which if in existence in case, Riddoch’s would рermitted have the cause of action. County Superior ex rel. Pierce Court, 86 *11 (1915),
Wash. 685,
again
151P. 108
2,
article
section 26 was
recognized
as an authorization to control
regulate
right
separate
of suit, a matter
and dis
legal
tinct
might
from
whatever
defenses
be raised
state once
interpretation
suit was commenced. This
of the
authority
provisions
constitutional
for consent to suit
has
consistently
been
Supe
affirmed. State ex rel. Robinson v.
rior Court, 182
(1935);
Wash. 277, 279, 282-83, 46 P.2d 1046
Weber v. School
7,
Dist.
185
697,
Wash.
701-02,
Columbia Steel Co. v. State, 34 Wn.2d
(1949), provides between a demonstration of the difference immunity consent to suit. as a defense and the waiver imposed the court found no statute which Columbia Steel private upon to for interest awards re- parties interest tax and thus denied such refunds, covery though permitted. court reasoned: the suit was right statute, accorded
The extends no when sue the right plaintiff grant farther than bring introduced before and, if the evidence his action liability, the state’s sufficient to establish the trial court is judgment amount for the to recover the state due ... supra Thus, the state State,
Columbia Steel Co. v. at 712. suit) yet may permit (consent to itself to be a defendant (immunities). defenses reserve the to raise all lawful (1955); Pape Armstrong, P.2d 1018 v. 47 Wn.2d Bond 425P.2d 10 State, 746,749, 70Wn.2d Washington 241, 367 Ferries, 59 Wn.2d Gross v. pre- (1961), providеs yet example of our another P.2d immunity recognition of distinction between vious entirely different set to suit. An waiver and consent (Laws statutory provisions being evaluated they seq.) established conditional ch. 47.60 et but Authority Bridge rights under a of action the Toll yet provisions 4.92. unlike those RCW similar, scheme page recognized, analysis, at In its the Gross court immunity process, a distinction between “There is from jurisdiction, goes question (Ital- liability, law.” the substantive which deals with from chapter mine.) to liabil- a consent 5 of 259 was ics Section remaining provisions ity given act, and under the section 10 The critical to suit. section 6 was consent recovery, provided a claim must that, as a condition days failure tо accrued. The the claim filed after within *12 deny requirement 10 was held of section meet the provision conditioned operation 5 because of section filing period recovery .100 of section However, itself. recovery tort refer waiver condition not does merely its immunity conditions but all, in section .090 at dealing to suit. the consent terms with own analysis applied example in the statu- of the above An presented tory presently v. in Nelson us is before scheme (1966). There, Dunkin, 69 Wn.2d legislature page in when the at that noted, court immunity as to tort claims “its waived prerequisite required, suit . it as a . . filing of the claim of a claim . .
state, the immunity but of tort not found to condition waiver precеdent of an action. to the maintenance was a condition Finally, P.2d 2 913, 918, 390 Tacoma, in Kelso v. 63 Wn.2d (1964), recognized the section .090 waiver in first which we immunity, that the section of tort had asserted merely “specifies to be that the state consents .090 waiver any liability . .” We sued and this does not create adopt construction” of section declined to this “technical clearly legislative intent to waive its .090 which stated the immunity. tort previous summation, our case law has differentiated consenting to substan
between the state’s be sued its immunity. tive as affected These waivers cases have article sec made the differentiation because gave tion to be sued consent but does wаive defenses or immunities. Consistent analysis, long with this line of case must hold law we provides merely legislative consent to our constitution suit, .110, is distinct as enacted sections .100 and immunity, legislative from the waiver of as in tort sec Corning Muskopf Hosp. Dist., tion 55 Cal. 2d .090. See Rptr. 457, 11 359P.2d Cal. that the waiver of tort is unbridled Given procedural pertaining sued, conditions to the consent to be apply protection process equal we then and due 120-day filing requirement tests to the decide whether is unconstitutional. the cause of action in this Therefore, process, equal protection and due entitled, under case is *13 protection against arbitrary discriminatory the same in- any right by any brought terference other as or as if other victim of tortious conduct. plaintiff’s
The cause of action involved an accrued vested right proceed right to tort- —the legislature may feasor—which the not divest or burden in protection equal process. violation of or due legitimate supporting I believe no there is state interest 120-day filing period requirement equal pro- under an analysis waiving tection because from tort placed legal footing the state has on the itself same usually with other tort-feasors. reasons for The advanced the differential treatment exercised in .100 are section no longer justify treating valid. The basic reason advanced to differently provide prompt the state tois submission pending of notice of claim as to to so enable state conveniently investigation an witnesses, make of facts, and to obtain other Jour. information. See S. Mod- ernly, especially rationale, such when the state has waived argument liability, legitimate such to its as ceases to be capability investigation because the has the state same any potential and defense other defendant. This denies special impose requirements. to notice investigators police The state and has —civilian —and many attorneys assigned departments also, full-time and Attorney personnel, fact, makes This in the' General. investigate equipped to better in most instances state private tort-feasors, negligence most suits than defend provided privileges special law. are notice no whom apparent reality this case. The the above is to which injured accident in a one-automobile plaintiff was injured responded patrol from which state facility. hospitalization Thus, in a state party received notice of an had of the state instrumentalities fact, various thereby potential the state. claim aof accident ignored and a in-fact notice is this Yet, .100 under section provide plaintiff notice written placed duty legitimate being no state time frame. There within set sрecial privilege support its interest this equal protection operation denies the law continued victimized state tortious conduct. those any legitimate addition, interest, absent arbitrary purely capri- requirement becomes rights against cious and denies those with the state remedy required if the of claim is Due notice violated. process of law does countenance the variance treat- *14 compared ment to victims of to the other tort, private members of the natural of tort, class victims victims.
What is involved in this case is no less than a citizen jurisdiction seeking to in of a secure redress the courts that longer no raises discredited defense Special may in tort. in burdens classification necessary they they often be but are and void null where are not directed at the elimination of some social evil or the public good. Finding neither, advancement some I be- 120-day filing period requirement lieve the is unconstitu- tional.
Finley and Wright, JJ., concur with Utter, J. (concurring part dissenting part) J. in in
Stafford, agree majority’s holding —I with the that the doctrine of sovereign immunity appellant’s is still viable and con challenge stitutional merit, is without on based as it was grounds Highway Dep't advanced in Reich v. State agree Mich. However, N.W.2d 700 I do not holding with the that, under 4.92.100, RCW “where the incapacity justify days facts of it, we would deem that 120 disability from removal of the a would cоnstitute reason able time within a claim could be filed.” To that I extent dissent. majority’s attempt happy compromise
The reach clearly judicial tragic legislation. this case is result-oriented explicit disregard language in total in It is conceived article section 26 of the state constitution as well as the wording pursuant clear of RCW 4.92.100enacted thereto. provides: §2, Const. art. legislature by law, manner, shall direct in what
The may brought against and in be courts, what suits state. Clearly,
(Italics mine.)
power
the manner
direct
solely
may
given
brought against
is
which suits
be
the state
legislature.
judiciary
is not authorized
assume
power.
pure usurpation of
or even to share that
To do
is
so
power
§2, 26, the
that is
ours. Pursuant to Const. art.
part:
enacted
4.92.100which reads
arising
damages
All
out
claims
the state for
presented
tortious
state auditor within one hundred
date that
and filed with the
conduct shall be
twenty days
from
claim
If the claimant
arose.
...
incapacitated
verifying, presenting,
filing
from
his
prescribed
a minor
claim in
the claimant is
the time
if
presented, and
.
.
the claim
verified,
filed
by any
attorney, or
relative,
the claimant
behalf of
agent representing him.
mine.)
(Italics
specifically requires the
The statute
all
tort
one hundred
claims
state “within
twenty days
excep-
from the date that
claim arose.” No
*15
majority
provided
Nevertheless,
for
tion is
minors.
the
legisla-
holding
ground
basеs
on
that “the
its
the tenuous
proviso
enacting
ture in
the .
.
.
to RCW 4.92.100could
unjust
.”
not
intended
a
result
.
have
such harsh
approach
found in the statute’s
The weakness of this
is
statutory
language.
explicit
for either
It leaves no room
majority
interpretation.
contends
Yet,
or
the
construction
explicitly
legislature
not mean what
said.
the
did
it
by
wisely
creating
legislature acted
the
the
Whether
subject
judicial
proper
challenged
is
a
restriction
not
McKinney
McDonald, 71 Wn.2d
v. Estate
determination.
of
(1967);
52
Parosa,
Tacoma v.
974
Port
262, 264, 427 P.2d
(1958).
that the
The fact
181, 192, 324, P.2d
Wn.2d
give
exception
not
rise
does
legislature
for minors
no
made
by
judicial power
of a volun-
means
to do so
latent
to some
be
could
proviso.
if it
true even
This is
additional
teered
legislative
v. Roth,
omission
inadvertent. State
said
King
(1971); Boeing
P.2d 55
v.
715, 479
78 Wn.2d
County,
(1969);
160, 166,
proach perplexing problem. pro- to this The state has been possibly tected from stale and unknown On the claims. protected providing hand, other minors have been them range persons requisite awith wide authorized file the attempted claim. In short, has to balance the 120-day equities. filing period If the is too short, if a persons range wider should claims, be authоrized to file legislature, judiciary, constitutionally not the em- powered necessary adjustment. to make the
This is not dissent inconsistent our decision with recent Przbylski, in Thomas v. 83 Wn.2d Przbylski, that, if a court reasoned claim is made
against governmental entity a for contribution or indemni- it fication, cannot be said that a claim has arisen until judgment had a rendered him he claimant has case,, in an him. In action made payment has 120-day limitation would held the court properly claim, defined, time thus at the arises. to run begin was reached means Przbylski proper The result date on (i.e., resolution interpretation judicial arise). Przbylski, was a claim is deemed least limited however, that the were at clear, parties time for torts. The statute limitations overriding unre- left indefinite and potentially filing claims solvable, as in the instant case. I stated,
For the reasons dissent. April 18, En 42222. Banc. 1974.]
[No. Faye Appellant, Shafer, Washington, v. The V.
Respondent.