                                                                                                                       ri     ED
                                                                                                              COFj fT% OF APPEALS
                                                                                                                    11;     SeCF    II

                                                                                                             2013 DEC 20 AM S: )
     IN THE COURT OF APPEALS OF THE STATE OF W

                                                     DIVISION II

KATHERINE E. MORSMAN,                                           I                           No. 426:


                                         Appellant,


         V.




CLARK COUNTY,                                                       I             UNPUBLISHED OPINION




         PENOYAR, J. —            Katherine Morsman appeals the trial court' s dismissal of her negligence


action against        Clark    County. Applying the version of RCW 4. 96. 020 in effect when Morsman

filed her notice of claim with Clark County, the trial court concluded at a summary judgment

hearing that Morsman had not met the statute' s claim filing requirement and that unless Clark

County was equitably estopped from claiming the protection of the statute, Mossman' s claim

should   be dismissed.           After a bench trial, the trial court concluded that Clark County was not

equitably estopped from asserting its improper filing defense and entered a final judgment

dismissing       Morsman'      s complaint with prejudice.               We hold the trial court was required to apply

RCW 4.96. 020 as amended and to determine whether Morsman substantially complied with the

pre -suit     tort   claim    filing   procedures.    We reverse the trial court' s grant of partial summary

judgment for Clark             County     and   its dismissal           of   Morsman'   s   case.    We remand for further


proceedings.



                                                          FACTS


I.          BACKGROUND


            On August 12, 2005, a Clark County sheriff' s vehicle rear -ended Morsman' s vehicle in

which she was          a passenger.        The Risk Management Division                     of   Clark   County   Department       of
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General Services ( Risk Management) was advised of the accident and began an investigation.


Risk Management paid for the property damage to Morsman' s vehicle and her insurance

company'      s   subrogation    claim   for   medical   treatment.!       By   March 2007, Risk Management


considered Morsman' s claim to be in " standby status, and no further action was contemplated."

Clerk' s Papers ( CP) at 152.


          In January 2008, Morsman hired attorney Michael Gutzler to represent her for ongoing

personal injuries caused by the August 2005 accident. After researching RCW 4. 96. 020 and the

proper method for commencing a suit against a county, Gutzler asked his legal assistant, Cheryl

Harney, to help determine where the initial tort claim notice form must be sent, a prerequisite to
                                                                           2
filing   a superior court action     for damages     against a   county.


            Harney first attempted to send the tort claim notice form to the Washington State Patrol' s

Risk Management Division;.however; the form was returned and she was advised to file the form


with Clark County. Harney contacted the Civil Unit of the Clark County Sheriff' s Office in July

2008; the Civil Unit told her to               contact   Clark   County' s      Risk Management.     Harney then

contacted Risk Management, which faxed Harney the tort claim notice form and advised her that

it was to be returned to 1300 Franklin Street. Both Risk Management and the clerk of the Board


of County, Commissioners are located on the sixth floor of the building at 1300 Franklin Street.



1
    There    was   damage to the     rear   bumper   cover of    the vehicle in the   amount of $  148. 00 in parts
and $ 657. 60 for paint and labor. Morsman' s initial medical damages totaled $3, 343. 83.

2
    Gutzler knew the tort claim notice must be filed because he had reviewed RCW 4. 96. 020 and
some related case law. Apparently he did not notice that RCW 4. 96. 020 directed that Clark
County was required to record their designated agent' s information with the County auditor. He
also apparently did not read the local Clark County rules, which would have shown the form
needed      to be filed   with   the clerk of the Board of      County   Commissioners.    Clark County Code §
2. 95. 060.
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           The form Risk Management faxed Harney did not direct the claimant to serve the form

on   any    particular
                            County    office.        Mark Wilsdon, the County' s Risk Manager, stated that no

instructions were given for how to file the form because Risk Management did not want to give

legal   advice.        Wilsdon also stated, however, that if someone were to come in person to deliver


the form to Risk Management and specifically asked where the form must be filed, his office

would      have directed the        person      to the   correct   location. But if the form was hand delivered and


no specific inquiry was made, either the person attempting to file the form may have been

directed to the correct location or the form may have simply been accepted with no comment.

Louise Richards, the clerk of the Board at the time Morsman' s tort notice was filed, testified that

she would not provide guidance about where to file the tort claim notice forms when asked

                                                                                                                              3
because         she was not an     attorney     and would,    instead, tell   claimants   to   speak with   their attorney.



           The only County office mentioned on the form was Risk Management, which was listed

at   the   top    of   the first   page.      The bottom of each page included Risk Management' s address,


telephone         number, and      fax   number.         The bottom     of each page also      included the    phrase: "   This


Tort Notice        conforms with         RCW 4. 96. 020."      Clerk' s Papers ( CP) at 146 -47.


            Based on the information on the forms and the information Harney received when she

spoke to Risk Management, Gutzler and Harney believed Risk Management was the proper

office     to   receive   Morsman'       s   tort   claim notice   form.   Harney had the completed tort claim notice




3 After legislative amendments to RCW 4.96. 020 in July 2009, all counties must now include
instructions on the form regarding how the form is to be presented and the name, address, and
business hours of the agent of the local government entity where the form must be filed.
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form, along      with       Gutzler'   s   letter   of representation,      hand delivered to Risk Management.4                      Risk

Management received and time stamped the letter and tort claim notice form on August 8, 2008.


II.       PROCEDURAL HISTORY


          On October 9, 2008, Morsman filed her summons and complaint, which were then


properly    served on         the Clark       County       Auditor.    Clark County sent Gutzler a letter on May 21,

2009, advising him that he had filed the tort claim notice form in the wrong office in violation of
                                                                                                                                 5
RCW 4. 96. 020         and    that Morsman'          s   voluntary dismissal         of   her   suit would   be   appropriate.




          Clark       County    moved        for summary judgment               on    December 8, 2010, arguing that "[ t] he


proper filing of a claim for damages is a ` condition precedent to the commencement of any

action    claiming damages'                against   the    County."       CP   at    16 ( quoting RCW 4. 96. 010( 1)).              Clark


County further argued that at the time Morsman filed her tort claim in 2008, former RCW

4. 96. 020 and the case law interpreting it required strict compliance with the tort claim notice

filing   procedures.         Clark County contended that the legislative amendments to RCW 4. 96.020 in

July 2009, which required only substantial compliance with the filing procedures for tort claim

notice forms, was not retroactive and should not be applied to Morsman.


          In its supporting memorandum, Clark County noted that in 1987, the Board of County

Commissioners           codified   Clark       County       Code § 2. 95. 060, and in subsection 2. 95. 060( A) provided


that tort   claims "        shall be filed with the Clerk of the Board [ of county commissioners for Clark

County]     and       Summons      and       Complaint       served upon        the       auditor,"   consistent with chapter 4. 96


RCW.        CP   at   17.    Clark County also noted that on July 8, 2003, the Board adopted Resolution

4
    There is no evidence in the record regarding the courier' s interaction with Risk Management
when the courier hand delivered the form and letter.

5
      By this point, the statute of limitations had run, barring Morsman from perfecting notice
required by chapter 4. 96 RCW.
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2003 - 07 - 05 appointing its clerk, Richards, as the agent to receive claims for damages against

Clark County.

          Morsman responded that she had substantially complied with the statute and that the

purposes of the statute were fulfilled because Clark County had received timely notice and had

an " unfettered    opportunity to investigate the        claim."   CP   at   26. Morsman also argued that Clark


County should be estopped from asserting her alleged failure to comply with the statute as a

defense because it had provided her with misleading information on the tort claim notice form

and sought to avoid giving guidance about where the form was to be filed.

          On March 11, 2011, the trial court granted partial summary judgment in favor of Clark

County    on   the issue   of   Morsman'   s"   compliance with the procedural requirement that her tort


claim notice    be filed   with   the Clerk     of   the Board."   CP   at   119.    The trial court determined the


legislative amendments to RCW 4. 96. 020 in July 2009 did not apply retroactively and thus held

Morsman to the former strict compliance standard.


          The trial court also ruled there was a genuine issue of material fact regarding Morsman' s

claim that Clark County was " estopped from asserting that filing with [ Risk Management] was

improper in this    case;"   and it set the case for trial on that issue. CP at 120.


          After a bench trial on the equitable estoppel issue, the trial court ruled that Clark County

was not estopped from asserting the defense that Morsman had improperly filed the tort claim

notice. The trial court entered its final judgment dismissing Morsman' s complaint with prejudice

on   August 26, 2011.      Morsman appealed.


          After Morsman filed her appellate brief, we granted Clark County' s motion to stay

proceedings pending our decision in Myles v. Clark County, 170 Wn. App. 521, 289 P. 3d 650

 2012),   review    denied 176 Wn.2d 1015, 297 P. 3d 706 ( 2013).                   Based on our holding in Myles,
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Morsman moved this court to consider additional evidence on appeal regarding whether the trial

court should have applied RCW 4. 96. 020 as amended in 2009 when ruling on summary

judgment and whether Morsman had sufficiently complied with the tort claim notice procedures.

A commissioner of this court initially denied Morsman' s motion to consider the additional

evidence, and Morsman did not seek review of the commissioner' s ruling by a three judge panel.

We later, however, requested additional briefing under RAP 12. 1( b) to address the issue of the

effects of our decision in Myles on Morsman' s appeal.


                                                      ANALYSIS


I.        SUMMARY JUDGMENT


          Morsman contends we have discretion to consider the trial court' s grant of partial


summary judgment in Clark County' s favor based on her failure to file the tort claim notice form

in the correct County office even though she did not argue this issue in her opening brief on

appeal.    Morsman further argues that we should reverse and remand this case under Myles


because Clark County did not file its motion for summary judgment until after the statutory

amendments to chapter 4. 96 RCW requiring liberal construction and deeming substantial

compliance with    the   pre -suit   filing   requirements sufficient.         Clark County responds that because

Morsman failed to appeal and assign error to the trial court' s grant of partial summary judgment

for Clark County, the sole issue on appeal is equitable estoppel and we may not decide this case

on any other issue. We disagree.

          Under RAP 1. 2( a)     and    12. 1( b),   we may decide a case on an issue not set forth in the

appellant' s opening brief. Here, the trial court did not.have the benefit of the Myles decision and

was   unable   to apply its   rationale       in   doing   justice   at   summary judgment.   Thus, to assure that


justice is done in this case, we address the trial court' s grant of partial summary judgment.
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Because we hold the trial court should have applied chapter 4. 96 RCW as amended, we reverse


the trial court' s grant of partial summary judgment for Clark County and its dismissal of

Morsman' s case, and remand for further proceedings.


           A.      STANDARD OF REVIEW


           We review an order for summary judgment de novo, engaging in the same inquiry as the

trial   court.   Jones   v.   Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P. 3d 1068 ( 2002).                             Summary

judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on


file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and     that the moving party     is   entitled   to   a   judgment     as a matter of     law." CR 56( c).


           We construe all facts and the reasonable inferences from those facts in the light most

favorable to the nonmoving party. Jones, 146 Wn.2d                            at   300.   Summary judgment is proper only

if   reasonable persons       could reach     but      one conclusion          from the     evidence presented.         Bostain v.


Food Express, Inc., 159 Wn.2d 700, 708, 153 P. 3d 846 ( 2007).                                       Interpretation of a statutory

amendment presents            only   a   question      of   law   and    is   reviewed      de       novo.   Dep' t of Ecology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P. 3d 4 ( 2002).


           B.      PRECIPITATING EVENT THEORY


           The trial   court    erred    in summarily         dismissing           Morsman'      s   claim   on   March 11,   2011,


because the amendments to former RCW 4. 96. 020 came into effect on July 26, 2009, almost two

years     before Clark   County filed its         motion      for summary judgment.                   Accordingly, the trial court

should have applied RCW 4. 96. 020 as amended to Clark County' s motion for summary

judgment.




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         Historically, courts required strict compliance with the procedural requirements of RCW

4. 96. 020. Medina v. Pub. Utility Dist. No. I ofBenton County, 147 Wn.2d 303, 316, 53 P. 3d 993

2002).        On July 26, 2009, however, the legislature added a fifth section to former RCW

4. 96. 020,     which     reads, "   With respect to the content of claims under this section and all


procedural       requirements        in this    section,   this section must be liberally construed so that

substantial compliance will              be deemed satisfactory."         LAWS of 2009,         ch.   433, § 1.     An amended


statute applies "`      when the precipitating event for the application of the statute occurs after the

effective date of the statute, even though the precipitating event had its origin in a situation

existing   prior    to the     enactment of    the statute. "'    Myles, 170 Wn..App. at 532 ( quoting Aetna Life

Ins. Co.   v.   Wash. Life &       Disability Ins. Guar. Ass' n, 83 Wn.2d 523, 535, 520 P. 2d 162 ( 1974)).

         Here, the legislative amendments requiring liberal construction and deeming substantial

compliance with chapter 4. 96 RCW' s pre -suit claim filing requirements sufficient became

effective on July 26, 2009. Clark County did not move for summary judgment until December 8,

2010.    Under Myles, even though the precipitating event had its " origin" in a situation existing

prior to these statutory amendments ( namely Morsman' s August 12, 2005 accident and her

subsequent       filing   of   her tort   claim notice with      Clark   County    on   August 8, 2008), the trial court' s


application of RCW 4. 96. 020 when it granted partial summary judgment on March 11, 2011,

occurred after July 26, 2009, the effective date of these amendments. Had the trial court had the

Myles case rationale before it when deciding Clark County' s motion for summary judgment

dismissal of Morsmmn' s tort action, it would have known it was required to apply these 2009

legislative amendments and would have determined whether Morsman had substantially, rather

than    strictly,    satisfied     the    notice   provisions     of     chapter   4. 96   RCW.         Uninformed by our

subsequent opinion             in Myles, however, the trial       court erred;     therefore,   we reverse        the trial   court' s
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grant of partial summary judgment for Clark County and its dismissal of Morsman' s tort action.

We remand for further proceedings.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




        Hunt, J.




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