*1 C.J., Hicks, Dolliver, Horowitz, Brachtenbach, Utter, Tem., Pro JJ. JJ., Soule, Williams, Deierlein concur. 31, 1980.] En Banc. December 46896-6.
[No. v. F. F. McNeal, Respondent, Allen, al, et Donald Respondents. al, L. Appellants, Kahn, W. et (of Mays Gavin, Robinson, William H. Kendrick, Red- *2 Mays), appellants. man & for (of pro Haggerty Kahn, se,
L. W. and John Mathew D. P.S.), respondents. Griffin, Inc., for respondent brought J.—The this action for Rosellini, seeking malpractice, damages medical in the amount of Responding complaint, $500,000. to the the allegation asserted a counterclaim that this violated RCW injurious reputation peace 4.28.360, and was to the and of appellant They party mind of the doctors. also filed a third complaint against respondent attorneys upon the based allegations. upon same These were dismissed respondents. motion time, At the same the amount alleged damage complaint.1 from stricken provides: RCW 4.28.360 any personal injuries, complaint action civil damages sought shall not contain a statement but prayer damages shall a contain shall be as deter- A a mined. defendant in such action at time
request rately plaintiff setting sepa- from statement forth any special damages general the amounts damages sought. days Not later than fifteen after service request plaintiff, of such to the shall have served the defendant with such statement. disputed damages 1It is not the statement the amount of claimed was 4.28.360, inadvertent. Prior RCW to enactment of the amount of the claim (RCW
properly 4.32.040(3)) complaint, both was included under statute (CR 8(a)). practice necessary give and court rule This was deemed notice to the defendant, judgment may and because the rule that not exceed the amount complaint, claimed in the unless the claim has been amended before the case has Hackney, (1961); been submitted. See McKelvie v. 360 P.2d 58 Wn.2d 746 Phillips, (1970). Whether, Ware v. 77 Wn.2d P.2d 444 under RCW 468 4.28- .360, actions, abrogated personal injury question rule been has not presently court. before the proce- correctly that the statute The trial court held substantive, dural, than reveals rather allegations abrogate common law rule that intent to pleadings absolutely privileged form the and cannot are damage basis for a action. rule found in the of defamation.
This law
Allegedly spoken statements, or written libelous by party judicial proceeding, or of a counsel the course absolutely pertinent privileged if or material are are sought, or the redress or relief whether statements legally Gold Chin relief. Seal are sufficient to obtain that (1966). chillas, State, Inc. v. 420 P.2d 69 Wn.2d immunity privilege The liability. absolute avoids all defense of supra; Chinchillas, State, Gold Inc. W. Seal (Second) (4th 1971); Prosser, § Torts ed. Restatement §§ is obvi of Torts The amount 586-87 ously allegations pertinent sought, the relief respect protection within the the rule. fall attorneys public policy privilege of based *3 securing of them of justice court the utmost free- to as officers the in for dom their efforts to secure attorney's their clients. publishing defamatory
purpose matter, his knowledge falsity, truth, in its or its are of belief even his of amenability importance only determining the attorney disciplinary power the of which he to the of court (Second) § Torts is an officer. See Restatement of judicial privilege parties vein, of to same the the according proceedings public is based the interest to all of access to the courts men the utmost freedom private disputes. justice for settlement of their Restate- (Second) supra. Torts, ment abso- made are
The fact that statements
attorney may
lutely privileged
abuse
not
an
does mean that
privilege
pointed
impunity.
Twelker
out in
As we
Wilson, Inc.,
This section originated part regulate as of a bill to malpractice restrict actions. bill was amended and Sess., enacted in Ex. Laws of 2d ch. originally 56. As proposed the applied only section to such It actions. was amended to all apply personal injury to actions and was 4.28, made a part RCW to pertaining commencement of actions. parties agreed are that the records of the legislature silent to
are as the reasons for the enactment. The defend- quote Report ants from a on Secretary's Commission Malpractice, Health, Medical Department Education Welfare, at page indicates that its purpose unnecessary eliminate friction caused between legal medical and professions claims "astronomical damages." According report, such claims
attract anxiety sensational newspaper coverage, impose needless notoriety
and often unfounded upon defendant physicians, feeling create unfair persecution world medical and are of no special plain- benefits to the tiff-patient.
It has suggested also been that of the fact publication a patient suing large may his doctor sum suits, inspire bring others to it influ- similar prospective jurors. ence which, do any,
We not know if of these considerations the had in legislature mind. Whatever reasons for introduc- innovation, ing procedural legislature made personal actions, apply injury all just medical malpractice actions.
The appellants maintain that the disciplinary actions may which inadequate, taken the trial court are damage already because the has filing been done with the complaint. reason, For suggest this that
269 for right in of action the statute implied court find should a cause action While provision. with its noncompliance dis- to deliberate deterrent damages might greater be a no reason statutory there is provisions, regard is no will occur. There violations anticipate that deliberate mind. any prospect such legislature had showing that court will endeavor officers of the presumed It is to be that violation When a governing procedure. the rules abide occur, likely due to inadvertence it will be more than does here, than to habit, case force of as was the springing from The sanctions disregard willful of the statute. habits to correct old should be sufficient impose
court occur, time, and if deliberate violations within a reasonable to dis- punishment enough severe the court can make courage emulation. courts of provisions have been before the
When similar (the Pennsylvania only jurisdictions York and New they have subject), which we find authorities substantive; than procedural, been held to be rather offending alle afforded has been to strike the Gregor, See Dries v. 398, Misc. 2d 395 N.Y.S.2d gations. 90 Co., & Pennsylvania Light Power Paytas (1977); 135 (C.P. 1959). County L.J. Lehigh 29 448 legisla find in no hint that We can the statute anything proce to do more than amend ture intended procedural, the rule was recognized dural rule. It substantive, chapter it it rather than when included Furthermore, statute, being with dealing pleadings. law, strictly construed common must be derogation of the found, will be unless change law intent 679, Tyler, 140 Wash. clarity. In re Estate appears with Faulkner, (1926); Kuehn v. 456, 684, A.L.R. 250 P. 51 1088 (1925); Gem 290, 241 P. A.L.R. 571 Wash. 45 136 P.2d Trading Cudahy Corp., Co. v. App. 22 Wn. 588 P.2d grounds, on 603 other (1978), Wn.2d aff'd an expressed is there Nowhere the section noncompliance to create a cause action intent *5 therein, forth nor procedural requirement set is there can be any language implied. from such an intent judgment The is affirmed. and
Stafford, Horowitz, Dolliver, Hicks, Williams, JJ., Tern., and J. Pro concur. Hamilton, (dissenting) majority J. holds that
Brachtenbach, —The dispositive. not the court is It misstates the an issue before procedural posture thereby of this case and bolsters and upon bottoms erroneous statements. its rationale those majority appellants states: "the asserted a counter- 4.28.360, was allegation claim that violated RCW and appel- of mind of injurious reputation peace and In not lant doctors." fact the defendant doctors did label any point, plead they, claim nor did at the nature their of mind. injury reputation peace their and in original allege defendants their counterclaim $500,000, violated complaint, claiming damages and, they damaged RCW 4.28.360 as a result "have been at the time of trial." an amount as shall be determined complaint allegations party Identical are made the third against attorneys. plaintiff's party plaintiffs
Counterclaimants and the third are They will be two doctors who were defendants below. third party Plaintiff and the appellants. referred to as defendants, to as attorneys, will be referred plaintiff's respondents. first, to dismiss the
Respondents made two motions: party complaint upon counterclaim the third based and attorney plaintiff's affidavit of records files and the spuri- solely upon the basis that "defendant's claim [sic] second, for judgment ous and CR 14" a motion violates motions is Only support on brief to pleadings. question raised. privilege dismiss, In motions to defendant opposing affidavits newspaper showing articles copy doctors attached a $500,000, complaint, malpractice the amount claimed expressed had persons organizations stated that was a state- concern over the amount claimed and there reputa- ment in the affidavit that each doctor believed his and he had been injured tion as a medical doctor had been later, caused considerable embarrassment. As demonstrated these affidavits should be considered. brief, opening argument, their brief and oral reply deny any defamation. There is claim based which will discussed later. position
merit their majority states that the amount *6 complaint. stricken from the It is true that moved for an complaint by deleting order amend his the dollar damages. amount of motion in specific That was made reli- 15(a) upon ance CR which requires leave of court to amend present under the circumstances here. No such order in appears record; necessarily, the stated dollar amount complaint remains it properly since has never been amended so far appeal as the record on is concerned. The order of party dismissal the counterclaim and third com- plaint was entered but no in the judgment dismissal is record as by directed the order of dismissal. majority correctly
The states that "the trial court held that the statute procedural is rather than [RCW 4.28.360] substantive." The trial court The ruling. made such order of plaintiffs dismissal stated that language complaint privileged is and that defendant doctors have by failed to make and the nature of the action cannot make special a claim for damages. nothing support There is fact, majority's ruling, assertion. his oral the trial "I judge really stated: don't know the legislature what statute, they particular intended when enacted that remedy by whether intended to create a and for the defendant or it just procedural whether or not was matter that court could expunge and should even on his own motion." (1)
The majority leaps then to several conclusions: within the procedural statute because it is included (2) chapter dealing pleadings; damage allegation with (3) defamation; privileged because the law of there is no legislative intent to create a for violation of the stat- claim (even though majority leg- ute to discuss what the fails (4) was); islative intent court sanctions imposed that attorney against offending adequate though are even never determines that this was the intent. majority argu- out of appellants' dismisses hand the necessarily statutory ment claim implied prohibition against stating the amount of claimed. here, That not dispositive majority issue but the does single discuss a case cited of their support theory. issue, turning
Before
to the central
note must be made of
some confusion
employed by respondents.
the motions
There was a "motion to dismiss
CR 14." That rule deals
per
party practice.
only
alleged
third
basis
is that
spurious
claim is
CR 14.
and violates
The first reason is
ground
for such motion.
court found no violation of
appeal
the rule and
is no
from
joinder
proper.
There
motion, therefore,
only
that decision. The second
is the
one
12(b)(6)
alleges
upon
viable. It
it is based
CR
—failure
However,
granted.
state a claim
relief can be
goes
the motion then
on to state that
it is a motion for
12(c) motion,
judgment
on the
which is a CR
*7
by
which no
respondents.
reference is made
If
respondents
rely upon
defendants'
affidavits to
bring
within
party complaint
the counterclaim and third
action,
for sum-
defamation
their motion becomes one
12(c).
7(a)
See CR
of
mary
CR
for definition
judgment.
considered,
pleadings. If the affidavits were
then the order
of
of a
specificity requirements
dismissal does not meet the
certify
summary judgment
judge
order. The trial
did not
American Universal Ins. Co. v.
any record of
proceedings.
Ranson,
(1962).
811, 815,
59 Wn.2d
Respondents thereby precluded are from an assertion that party complaint the counterclaim and third sound defamation to the doctors. Thus due affidavits defendant coun- language to the limited must be analysis our totally which are complaint third party terclaim and of defamation. any allegation devoid of substantial overcome the must respondents Consequently a true application by this court's test imposed hurdle 12(b)(6) motion. CR pursuant motion made repeatedly that a said
We have beyond 12(b)(6) it appears unless must be denied CR doubt facts, consis- no set plaintiff prove can would entitle complaint, which tent with the to relief. Dodd Funeral v. Ball & Corrigal omitted.)
(Citations Home, Inc., Wn.2d 959, 961, P.2d 580 doubt can beyond a appellants appear it Does I them to relief? no set which would entitle prove of facts foundation that, and the upon based submit deny the grievous to dismiss it is error for the motion stage. at appellants claim First, any discus- my position. There are two reasons It is premature. on defamation action ruling sion of and a It is claims. appellants' the basis of the alleged not which by The affidavits forcefully appellants. rejected relied were not element of defamation might inject an rule by the civil bound If the movants are by appellants. bound, those affi- assert, so they should be they us for consideration. are not even before davits a ruling on gratuitous gain should not a respondents case, is their when yet particularly in the theory not appellants when the problem motion which created theory. upon that disclaim reliance specifically claim, their forward with go allowed to If are scope be, within proof if their falls as should should claim, only then can and then and defamation nonex- prejudge with. We should the matter be dealt fail and indeed theory. prejudge Nor should we istent modification discuss, possible majority, does the as 4.28.360, RCWof rule enactment pleading privilege point appellants. raised *8 274
Second, we should hold that RCW 4.28.360 created an implied cause of action which appellants may assert their claims.
It has long recognized been that a enactment In Texas & Pac. may be the right foundation of a action. Ry. Rigsby, v. 33, 39, 241 U.S. L. 60 Ed. 36 Ct. S. 482 (1916), Supreme Court summarized principle:
A disregard of the command of the statute wrongful is a act, and where it results in damage to one of the class whose especial enacted, benefit the statute was right to implied recover from party default
. . . Indeed, may we trace principle back to 1703. Anonymous, (1703), 87 Eng. Rep. 791 it is declared:
for where-ever
a statute enacts
or
anything,
prohibits
anything,
advantage
person,
person
shall
remedy
him,
have
advantage given
recover the
or
to
to have satisfaction for
him
injury
contrary
done
statute;
law
the same
for it would
thing
be a fine
make a law
which one
right,
remedy
has a
but no
but
.
equity .
.
A variety
statutory
regulatory
schemes become
involved.
may carry
Violation
a penal penalty, may provide
procedures
entirely
administrative
silent on
remedy,
yet
but
be held to
civil
private
remedy.
create a
Judicial Implication
Rodos,
McMahon &
Private Causes
Action:
Appraisal
Retrenchment,
Re
80 Dick. L.
Implied Causes
(1976); Note,
Rev. 167
Action in the
Courts,
State
L.
Sellinger
See
v.
30 Stan.
Rev.
1243
Freeway
Sales, Inc.,
Mobile
Home
Ariz.
110
521 P.2d
Ass'n,
Wetherton
Growers Farm Labor
(1974);
1119
275
168, 174,
(1969):
Cal.
2d
App.
79
Rptr.
Cal.
543
"Violation
of a statute embodying
public policy
generally
action
though
specific
able even
remedy
provided
statute; any injured
public
member of the
for whose benefit
Heim
the statute
may bring
.";
was enacted
an action . .
gaertner
Co.,
v. Benjamin
Elec.
Mfg.
152, 155,
Ill.
2d
128
(1955):
N.E.2d
"When a statute is enacted for the
protection
particular
individuals,
of a
class
a violation of
liability,
criminal
well as
may result
in civil as
terms
its
men
specifically
the former
though
even
*9
Clinic,
Ill.
3d
v. Field
App.
74
therein."; Sherman
tioned
Motors
v. General
(1979); Pompey
154,
21,
N.E.2d
160
392
King
(1971);
537,
243
N.W.2d
Corp., 385
Mich.
189
Comm'n,
Improvement
Co. v. Environmental
Resources
Co.,
Realty
v. Urban
(Me.
Brinkmann
1970);
approved this persons class of protects a legislative provision When a but does not conduct requiring or certain proscribing violation, may, if the court remedy for the provide a civil in further- remedy appropriate it determines ance of the to and needed legislation of the purpose accord to an provision, assure the effectiveness action, using a right member of the class a injured cause of action existing tort action or a new suitable tort analogous existing to an action. (1979). (Second)
4
of Torts
874A
Restatement
§
under consid-
of statutes
language
Because of the varied
to
eration,
differing elements
courts have focused
A
cited
remedy
frequently
if
implied
determine
an
exists.
Ash,
66, 78,
L. Ed.
Cort v.
422
45
U.S.
test is enunciated
(1975):
26,
2d
In
determining whether
one,
factors are
several
expressly providing
a statute
for whose
First,
"one of the class
is the
relevant.
&
enacted," Texas
especial benefit
the statute was
(1916)
33,
Rigsby,
Co. v.
(empha
R.
241 U. S.
39
Pacific
federal
is,
create a
does the statute
supplied)
sis
right
cation of
—that
indi
Second,
is there
plaintiff?
favor of the
to
intent,
either
explicit
implicit,
legislative
National
e.g.,
See,
deny
or to
one?
such a
create
Assn.
Railroad
Passenger Corp. v. National
Railroad
(Amtrak).
(1974)
458,
Passengers, 414 U. S.
453,
460
underlying purposes
Third,
with the
consistent
remedy for the
imply
to
such
legislative
scheme
Investor
Amtrak,
Barbour, 421 U.
supra; Securities
e.g.,
See,
plaintiff?
(1975);
412,
423
Corp.
Protection
v.
S.
(1964).
finally,
And
Harvey,
the law, relegated cause action one to state States, basically an area the concern of the so that it would be to based inappropriate infer a cause action Wheeler, Wheeldin v. solely on 373 U. federal law? See Borak, I. Co. 647, J. Case (1963); cf. U. S. 652 377 S. Bivens v. Six Unknown Federal Narco- (1964); id., Agents, tics (1971); 403 U. S. at 400 394-395 (Harlan, J., concurring judgment). analyzing implied a statute determine whether an created, duty
cause action is we must mindful of our necessary "to be alert provide such remedies as are J.I. Case Co. v. make effective" the purpose. Borak, 426, 433, 377 U.S. 12 L. Ed. 2d S. Ct. Cort apply
Let us the criteria of the case RCW 4.28- .360. Are the one of the for whose benefit class the statute was question enacted? The is answered *10 question. For except whose benefit defendants could the statute have been enacted? It denies to the right specific to state a plaintiffs' dollar amount some attorneys may in placing deem to their benefit before the only trier of It plaintiff's damages. fact the estimate of can be to the benefit of the defendant the amount of dam- ages sought necessity is not complaint. allowed apprised damages the defendant to be of the maximum sought protected by his right request a statement plaintiff. only from the Thus it seems clear that defendants can benefit from the statute and are the class for whose benefit the statute was enacted. question any second is whether there is indication of intent,
legislative explicit implicit, either to create such a deny explicit expression or to one? There is no concede, deny remedy. intent to create or a the parties As However, history there is no legislative of assistance. we agree with the West court which Virginia observed: history any
Such event, necessarily would not be decisive . . . express right
since the omission of an a back- typically against action ground the statute occurs on this ambiguity ques- silence or legislative tion. _W. Va._,
Hurley Corp., v. Allied Chem. 262 S.E.2d there is indi- We must therefore determine whether implicitly cation of intent create such a rem- Hurley v. Allied edy. I out in pointed believe there is. As Corp., supra Chem. legisla- at we can assume that statutory implied ture is aware of the doctrine of causes legislature action and also assume that would not enact class granting rights a remedial statute to an identifiable enabling without members of that class to enforce those rights. remedy, implicit Without an creation of a the stat- ute meaningless. attorney majority refuge seeks the fact that an
subject supervision discipline of the court and that I immaterial matters stricken. with the agree totally that such is in accomplishing ineffectual purpose stage damage RCW 4.28.360. At that has Anyone occurred. aware of the tensions and debates legal between the of the professions medical knows bitter criticism coverage surrounding aimed at media a malpractice particularly action and the claimed dollar amount. It equal publicity is naive assume that will be given to motion original publicity to strike after the has already perfect example. occurred. This case is a There was full newspaper report So stating the amount claim. shows, far as the record to the publicity given plaintiff's effort to prayer specific eliminate the dollar *11 amount. of with willingness majority
The the to content itself an lit- vague after-the-fact sanction of some nature will be of parties statutory right prohibiting tle aid to the who have a very the majority action which the allows. majority damages concedes that a cause of action for of the
might greater disregard be a deterrent to deliberate statutory provisions but concludes that is no reason there will occur and that
to that deliberate violations anticipate pros- the had such showing legislature there is no that admis- pect doing, majority ignores mind. In so the attorney in his on the plaintiff's argument sion attorney stated: "We filed our motion to dismiss. That sanctuary privileged in a we did this court inadvertently, basis, but not solely perhaps so on the statute, really, I somehow or other was aware but of types various general pleading our we still continue (Italics to stating from time time." cases mine.) implicit
The third to be considered is whether an factor underlying purpose consistent with the cause action is only It is not consistent scheme. carry phi- to out legislative prohibition but essential real or advantage, If a can obtain the losophy. community, including an entire imagined, infecting knowledge claim potential plaintiff's with the of the jurors, legislature million was damages, of a half dollars then the enacting wasting act performing its time and useless necessary to Allowing a cause action is the statute. Borak, Co. v. achieve the result the statute. J.I. Case majority simply the idea stat- supra. ignores may for harm he a defendant designed compensate ute only if It the deter- suffer the statute violated. examines majority effect; suggested rent of the remedies none from the suffer when protect defendant harm he necessary or at least statute is violated. When statutory purpose, accomplishment helpful to decidedly implication its under receptive court should be Chicago, 441 U.S. University Cannon v. the statute. Ed. S. Ct. 60 L. 2d concerning the Cort tests federal- The fourth element of case. germane ism is not by character- its result majority attempts justify of a merely procedural as an amendment izing statute the section It this because rule. has determined it characterizes chapter dealing in the with what included
279
Actually
is
commence-
pleadings.
chapter
as
the
entitled
actions,
explain
RCW
fails to
majority
ment
4.28.
magic
of the
word
some-
"procedural"
how
invocation
If
point
how
the whole
the majority's
determines
matter.
chapter
4.28
consequence,
should
noted that
jurisdiction
concerns such fundamental
as
matters
when
service,
acquired,
commenced,
how civil
rights
actions are
of unknown
and heirs and
matters of a
claimants
other
I
unpersuaded.
substantial nature.
am
v.
Dries
Finally
In
majority
two
relies
cases.
Gregor,
(1977),
90
2d
Misc.
sylvania Light Co., Power County 29 Lehigh L.J. 448 (C.P. 1959). Contrary to majority, the assertion of the there procedural discussion of versus matters substantive nor was a to strike even discussed. The court was interpreting Pennsylvania civil procedural rule necessary limited a plaintiff stating an amount to estab- jurisdiction day lish of the court. The court said: "Some we penalize shall violating this rule when we gaining public- purpose violation was believe the jurors enormity of a ity prospective impress no harm that case since They loss." found that there was complaint filing months since the there were some 15 simply support trial. It before it could come to does majority's reliance.
I dissent. *13 C.J., J. Brachtenbach, Utter, concurs 45873, 45874, 31, 1980.] 45966. En Banc. December [Nos. Appellant, v. Washington, Tacoma- State Multiple Listing County Service, Pierce Respondents. al, et Appellant, Tri-City Washington, v. The State Respondent. Inc., Realtors, Board of on the Slade Relation Washington, State Appellant, Spokane Gorton, Board of Respondent.
Realtors,