                                                           COURIOF APPEALS lily I
                                                           'STATE OF WASHINGTON

                                                            2010 JUN 1 1 AM 10: 3I


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ANNE M. PRICE,
                                                         No. 76066-1-1
                      Appellant,
                                                         DIVISION ONE
               V.
                                                         PUBLISHED OPINION
STACY GONZALEZ; JOSE GONZALEZ
and SARA GONZALEZ, and the marital
community composed thereof,

                      Respondents.                       FILED: June 11,2018


       APPELWICK, C.J. — Price sued the wrong defendant. The trial court
dismissed, because the statute of limitations expired before the proper defendant

received notice. Price argues that this was error, because her amendment to the

complaint relates back to the original filing of the complaint. We affirm.

                                      FACTS

       Stacy Gonzalez rear-ended Anne Price. Price's declaration describes the

exchange of information that occurred immediately after:

             The driver who hit me was an emotional mess — she was
      crying, had labored breathing, and was shaking. I was very worried
      for her. I asked her if she was okay and she said no. She said she
      had just left her doctor's office] and her heart was not good. That
      made me even more worried for her, so I asked again if she as okay.
      She said no, but that she was on her way to another doctor's
      appointment. I said that we should call the police or an ambulance
      but she insisted that we not.


       1 Stacy was pregnant at the time.
No. 76066-1-1/2

             I suggested we exchange information, so we both went to our
      cars to get that. I didn't have any paper handy, so my mother gave
      me a receipt that she had, so I could write on the back of it. I walked
      back to the other driver and she handed me her insurance card; her
      hand was shaking. I gave her my insurance card and we each wrote
      down the other's contact information. The other driver did not write
      down her name and information on a piece of paper and give it to me
      — she gave me her insurance card and I wrote down her contact info
      on my mom's slip of paper. . . .

             At no time did the other driver tell me her name, otherwise I
       would have written it down. The only ID [(identification)] she gave
       me was her insurance card, she did not show me her driver's license.
       Based on the information the driver handed to me, I believed her
       name was Sara Gonzalez.

In fact, Sara Gonzalez was Stacy's2 mother.

       On November 13, 2015,the last day before the statute of limitations expired,

Price filed a summons and complaint for personal injuries against Sara Gonzalez.

Sara's answer stated that Price had sued the wrong defendant.

      The trial court granted Price leave of court to amend her complaint. On

January 27, 2016, over two months after the statute of limitations had expired,

Price amended her complaint to name Stacy as a defendant, in addition to Sara

and Jose Gonzalez.3 On February 4, 2016, within 90 days of the filing of the

original complaint, Sara's attorney accepted service on behalf of both Sara and

Stacy. On September 2, 2016, the defendants moved to dismiss. They argued

that the amended complaint did not relate back to the original complaint, because

Stacy, the proper defendant, did not receive notice within the statute of limitations



       2 We refer to Stacy and Sara Gonzalez by their first names for clarity. We
intend no disrespect.
       3 Although the trial court allowed Price to amend the complaint, this did not
establish that the action against Stacy was procedurally or jurisdictionally valid
under CR 15, which governs relation back of amended complaints.

                                             2
No. 76066-1-1/3


period, as required by CR 15(c). The trial court granted this motion, because

"defendant Stacy Gonzalez did not receive notice of the institution of the action

mistakenly brought against her mother within the period of time provided by law

for commencing the action against her which was three years from the date of the

November 13, 2012 accident."

       Price appeals.

                                    DISCUSSION

       Price makes two arguments. First, she argues that her amended complaint

relates back to the original complaint under CR 15(c). Second, she alternatively

argues that Washington courts should change their interpretation of CR 15(c) to

conform to the federal rule that allows relation back of pleadings within 90 days of

the expiration of the statute of limitations.

       The trial court granted summary judgment to Gonzalez, because it found

that Stacy did not receive notice of the institution of the action within the statute of

limitations, as required by CR 15.4 This court reviews de novo a trial court's

decision to grant summary judgment. Lakev v. Puget Sound Energy, Inc., 176

Wn.2d 909, 922, 296 P.3d 860 (2013). It performs the same inquiry as the trial

court, and will affirm an order of summary judgment when there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law. Id.

       4 The trial court's order is titled in relevant part "order granting
defendants'. . . motion to dismiss due to the expiration of the statute of limitations."
But, the parties agree that the order was a summary judgment order, despite the
order's title, because the trial court considered matters outside the pleadings.
When the trial court has considered matters outside the pleadings, this court
reviews a trial court's order as a grant of summary judgment. Lakey v. Puget
Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013).

                                                3
No. 76066-1-1/4


It reviews the evidence in the light most favorable to the nonmoving party, and

draws all reasonable inferences in that party's favor. Id.

  I.   Relation Back

       Price first argues that she satisfied the requirements of CR 15(c). Our

Supreme Court has described the purpose CR 15(c) as follows:

               Plaintiffs occasionally sue incorrect defendants by mistake
       and do not realize who the correct defendants are until after the
       statute of limitations period expires. We have a court rule that deals
       with that scenario: CR 15(c). If plaintiffs amend their complaint and
       meet the requirements of that rule, we treat their amended complaint
       as "relat[ing] back to the date of the original pleading," and thus
       timely.

Martin v. Dematic, 182 Wn.2d 281,288, 340 P.3d 834(2014)(alteration in original)

(quoting CR15(c)).

       CR 15(c) has two textual and one judicially created requirements. Id. at

288. The first and second (textual) requirements are:

       [VV]ithin the period provided by law for commencing the action
       against the original party, the party to be brought in by amendment
       (1) has received such notice of the institution of the action that the
       new party will not be prejudiced in maintaining her or his defense on
       the merits, and (2) knew or should have known that, but for a mistake
       concerning the identity of the proper party, the action would have
       been brought against the new party.

CR 15. Third, Washington courts have followed federal courts and added an

"inexcusable neglect" prong, which disallows relation back if the error was due to

inexcusable neglect. Martin, 182 Wn.2d at 289.

       The party seeking for its amended complaint to relate back has the burden

to prove these three conditions are satisfied. Id. at 288-89. But, CR 15(c) is to be

liberally construed on the side of allowance of relation back of an amendment after


                                            4
No. 76066-1-1/5


the statute of limitations has run, particularly where the opposing party will be put

to no disadvantage. Perrin v. Stensland, 158 Wn. App. 185, 194, 240 P.3d 1189

(2010).

       A. Notice Within the Limitations Period

       The first requirement of CR 15(c) is that the added defendant had notice of

the action within the period provided by law for commencing the action against the

original party. Martin, 182 Wn.2d at 288. Our Supreme Court has interpreted this

to mean within the applicable statute of limitations. Id.

       Price presents three alternative arguments to satisfy this prong. First, she

argues that there is a question of material fact as to whether Stacy had actual

notice of the action within the statute of limitations. Second, she argues that

knowledge of the action should be imputed from Sara to Stacy due to a "community

of interest." Third, she argues that the statute of limitations should be equitably

tolled under these facts, and, if so, Stacy would be deemed to have received notice

within the appropriate limitation period.

       1. Actual Notice

       Price first argues that there is a question of material fact regarding whether

Stacy had actual notice of the complaint within the statute of limitations. Price did

not serve Stacy within the statute of limitations period. However, she argues that

Stacy's affidavit leaves open the question of whether Stacy received actual notice,

on November 13, 2015, the date the statute of limitations expired. Price relies on

the specific language of Stacy's affidavit: "Prior to November 13, 2015, I was not

aware a lawsuit had been filed against my mother." (Emphasis added.) And,


                                             5
No. 76066-1-1/6


Stacy's declaration states that she did not know about the lawsuit before

November 13, 2015. Price asserts that this alleged ambiguity leaves open the

possibility that Stacy received notice of the lawsuit on November 13, 2015.

       But, other portions of the declaration foreclose this interpretation, even

when viewed in the light most favorable to Price. Stacy's declaration states that "it

was not until an attorney called my mother about the lawsuit that my mother told

me she had been mistakenly sued regarding this accident.            I do not recall

specifically when this call occurred but it was sometime after November 24, 2015."

(Emphasis added.) Sara's declaration states that the first time she heard about

the lawsuit was on a call from an attorney, and that that call occurred "Islubseguent

to" November 13, 2015. (Emphasis added.) Thus, while Stacy did not know of the

action before November 13, she also did not know of the action until after

November 24. Actual notice has not been established.

       2. Community of Interest

       Price alternatively argues that knowledge should be imputed to Stacy under

a "community of interest" between Stacy and Sara. Price cites four cases where

courts have imputed knowledge to misnamed parties when a community of interest

exists between the named party and the new party. In Perrin, this court found a

community of interest between a deceased defendant and the defendant's estate.

158 Wn. App. at 188, 196. In LaRue v. Harris, 128 Wn. App. 460, 465, 115 P.3d

1077 (2005), the court imputed notice, based on a community of interest, to the

insured decedent's estate from a properly served insurer. In both Schwartz v.

Douglas, 98 Wn. App. 836, 840, 991 P.2d 665 (2000) and Craig v. Ludy, 95 Wn.


                                             6
No. 76066-1-1/7


App. 715, 717,720,976 P.2d 1248(1999), this court found a community of interest

between a deceased defendant and his insurer, when the original complaint

named the deceased defendant, rather than his estate. These four cases all

involve a legal alignment of interests such as that between an insurer and insured,

or decedent and estate. But, Price cites no Washington authority where a court

has found a community of interest based on a factual circumstance such as

cohabitation or a familial relationship.5 This is insufficient to create a community

of interest for the purposes of CR 15(c).

       3. Equitable Tolling

       Price alternatively argues that the statute of limitations should be equitably

tolled. Equitable tolling permits a court to allow an action to proceed when justice

requires it, even though a statutory time period has nominally elapsed. City of

Bellevue v. Benyaminov, 144 Wn. App. 755, 760, 183 P.3d 1127 (2008). "[T]his

court allows equitable tolling when justice requires." Millay v. Cam, 135 Wn.2d

193, 206, 955 P.2d 791 (1998). "The predicates for equitable tolling are bad faith,

deception, or false assurances by the defendant and the exercise of diligence by

the plaintiff." Id.; see also Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805,

812, 818 P.2d 1362 (1991) ("In the absence of bad faith on the part of the

defendant and reasonable diligence on the part of the plaintiff, equity cannot be

invoked.") The party asserting that equitable tolling should apply bears the burden




       5Price conceded below that evidence was insufficient to sustain a family
car doctrine claim, and that dismissal of any family car claims was appropriate.
The family car doctrine is therefore not at issue on appeal.

                                             7
No. 76066-1-1/8


of proof. Nickum v. City of Bainbridge Island, 153 Wn. App. 366, 379, 223 P.3d

1172 (2009).

       Courts typically permit equitable tolling to occur only sparingly, and should

not extend it to a garden variety claim of excusable neglect. Benyaminov, 144 Wn.

App. at 761. Appellate courts review a decision on whether to grant equitable relief

de novo. Trotzer v. Vig, 149 Wn. App. 594, 607, 203 P.3d 1056 (2009).

       Trotzer is an example of the hesitancy with which courts apply equitable

tolling. In 2000, Vig cleared a walking trail on Trotzer's land, mistakenly believing

that it was on his property. Id. at 599. Vig wrote a letter to Trotzer that stated, "In

the future, we will never do any work near the property line without first consulting

you." Id. at 600. Two years later, Vig and Trotzer met by chance at a store, and

briefly conversed. Id. Vig told Trotzer that they intended to extend the trail, but on

their own property. Id. Trotzer commissioned a survey, and discovered that some

of the trail was on his property. Id. at 600-01.

       Trotzer filed a complaint for trespass against the Vigs, but this occurred

outside the statute of limitations with respect to the 2000 trespass. Id. at 601,606.

Trotzer argued equitable tolling should apply, because the Vigs' letter gave false

assurances that they would consult Trotzer prior to further action. Id. at 606. This

court disagreed, and held that equitable tolling did not apply. Id. at 607. Although

the meeting was by chance, the court viewed the brief conversation at the store as

satisfying that promise to "consult" Trotzer. Id. Thus, it found no false assurances,

and no grounds for equitable tolling. Id. Viq illustrates the narrowness with which

Washington courts have applied the "false assurances" prong.


                                              8
No. 76066-1-1/9


       Here, no facts suggest that Stacy made a deliberate attempt to mislead.

Immediately after the accident, Price observed Stacy to be shaken up. Viewing

the facts most favorably to Price, Stacy gave Price her insurance card, but not her

driver's license, identification, or name. Nothing suggests that Stacy told Price that

she was the person named on the insurance card. She merely gave her the card.

Price then made an inference. These facts do not meet RCW 46.52.020(3)'s

requirements6 for information exchange following a collision. But, they do not

establish bad faith, or any affirmative false assurances that Stacy was Sara. Nor

do they suggest reasonable diligence from Price. In the three years following the

collision, nothing in the record suggests that Price used the contact information,

the insurance card, the vehicle information, or made any other efforts to verify the

driver's true identity. Stacy was the registered owner of the vehicle she was

driving, and a cursory records search therefore would have shown that Stacy was

likely the driver. But, the only act Price took in identifying the driver was inferring

the driver's identity from the insurance card.

       Courts should apply equitable tolling only sparingly. As the party seeking

relation back under CR 15(c), Price has the burden of showing that Stacy had

notice within the statute of limitations period. Martin, 182 Wn.2d 288-89. She has

not met that burden.




        6 RCW 46.52.020(3) imposes a duty on drivers to exchange certain
information at the scene of a motor vehicle accident. Neither party relies on
compliance, or lack thereof, with the mandatory exchange of information statute.
It is therefore not at issue.

                                              9
No. 76066-1-1/10


       Because Price cannot meet the first prong of the CR 15(c) requirements,

we need not address the remaining prongs.

 II.   Foreign Authority

       Price alternatively argues that Washington courts should align its

interpretation of CR 15(c) with federal courts' interpretation of Federal Rules of

Civil Procedure (Fed. R. Civ. P.)15(c). .

       Washington CR 15(c) states that an amended pleading bringing in a new

party will relate back to the original pleading if, "within the period provided by law

for commencing the action," the new party had notice and knew or should have

known of the action against him or her. CR 15(c). The Martin court viewed this as

the applicable limitations period. 182 Wn.2d at 288. By contrast, The federal rule

states that an amended pleading bringing in a new party will relate back to the

original pleading if, within 90 days after the complaint is filed, the new party had

notice and knew or should have known of the action against him or her. FED .R.

Civ. P. 15(c); 4(m).

       Price asserts that Washington courts should follow the federal approach.

But, this ignores the obvious textual differences between the Washington and

federal rules. "Federal authority is persuasive in interpreting language of a state

court rule that parallels a federal rule." Craig, 95 Wn. App. at 719 n.2. The

Washington rule does not parallel the federal rule in this regard. Federal courts




                                             10
No. 76066-1-1/11


allow the 90 day window for adding misnamed parties, because the federal rule

explicitly allows this. The Washington rule does not.7

      The trial court correctly determined that Washington law requires that a

misnamed party receive notice of the action within the statute of limitations period.

      We affirm.




WE CONCUR:




       7 The advisory committee notes highlight the significance of this difference.
Fed. R. Civ P. 15(c) advisory committee's note to 1991 amendment. They state
that the federal rule was changed in 1991 to explicitly overrule a United States
Supreme Court decision that disallowed amendment after the statute of limitations
expired. Id. That case, Schiavone v. Fortune,477 U.S. 21,30-31, 106 S. Ct. 2379,
91 L. Ed. 2d 18 (1986), held that the Fed. R. Civ. P. 15(c) in place at the time
required notice to a misnamed defendant within the statute of limitations period.
At the time, former Fed. R. Civ. P. 15(c)(1987) imposed the same requirement
that the current Washington CR 15(c) imposes: a pleading will relate back only if
the misnamed defendant receives notice "within the applicable limitations period."
Id. at 31. The Schiavone court found that the explicit text of the federal rule
required notice within the statute of limitations period. See id. The Schiavone
court reasoned that any other result would require a change to the text. See id.
That change was eventually made, as evidenced by the current federal text.
       In effect, we are in the same position that the Schiavone court. The current
Washington rule CR 15(c) requires notice within the statute of limitations. Any
other approach would require a textual change to Washington CR 15(c).
Washington has not made such a change.

                                            11
                            Price v. Gonzalez, No. 76066-1-1

        DWYER, J. (dissenting) — Today the majority announces that an individual

who leaves the scene of an automobile collision without providing her true name,

address, or driver's license—in clear violation of the law—may nevertheless

evade civil liability for her wrongful acts. Because I believe that the legislature

did not intend to reward a criminal for successfully deceiving the unsuspecting

victim of the criminal's tortious actions, I dissent.

       On November 13, 2012, a vehicle driven by Stacy Gonzalez crashed into

the rear end of Anne Price's vehicle. Stacy did not reveal her name or provide

Anne with either her driver's license or any contact information. Rather, Stacy

furnished Anne with an insurance card bearing the name of her mother—Sara

Gonzalez) Stacy did not inform Anne that the insurance card bore the name of

someone other than her. Relying on the information provided to her, Anne filed

suit against Sara. By the time that Anne sought to amend her complaint and

name Stacy as the rightful defendant, the statutory limitation period had expired.

       The majority declines to apply equitable tolling to permit this action to

proceed. In so holding, the majority faults Anne for making "an inference" that

Stacy complied with the law. The majority further concludes that Stacy's illegal

actions following the collision are insufficient to "establish bad faith, or any

affirmative false assurances that Stacy was Sara." Majority at 9. I disagree. I

believe that, because the law required Stacy to provide her name, address,



        1 The trial court's order was effectively a grant of summary judgment. Accordingly, all
reasonable inferences are drawn in the light most favorable to Anne Price, the nonmoving party.
Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860(2013).
No. 76066-1-1/2
Price v. Gonzalez — Dissent


identification, and insurance information to Anne at the scene of the collision—

and because no authority required Anne to affirmatively investigate the veracity

of that information—the statutory limitation period is necessarily tolled until such

time as the true information, required by statute, is provided.

       Equitable tolling is appropriate "when justice requires." Millay v. Cam, 135

Wn.2d 193, 206, 955 P.2d 791 (1998). "The predicates for equitable tolling are

bad faith, deception, or false assurances by the defendant and the exercise of

diligence by the plaintiff." Millay, 135 Wn.2d at 206. "In Washington equitable

tolling is appropriate when consistent with both the purpose of the statute

providing the cause of action and the purpose of the statute of limitations."

Millay, 135 Wn.2d at 206.

      "[T]here is a strong public policy implicated in preventing individuals from

eluding their substantive obligations by simply invoking the statute of limitations."

Pub. Util. Dist. No. 1 of Klickitat County v. Walbrook Ins. Co., 115 Wn.2d 339,

349, 797 P.2d 504 (1990). Indeed,"Mlle simple existence of statutes of limitation

does not mean exceptions thereto are never appropriate." Sidis v.

Brodie/Dohrmann, Inc., 117 Wn.2d 325, 330, 815 P.2d 781 (1991). "The

purpose of the statute of limitations is to compel actions to be commenced within

what the legislature deemed to be a reasonable time, and not postponed

indefinitely. However, the statute's operation could be tolled for what the

legislature regarded as a good reason." Sidis, 117 Wn.2d at 330 (quoting

Summerrise v. Stephens, 75 Wn.2d 808, 812, 454 P.2d 224(1969)).



                                          2
No. 76066-1-1/3
Price v. Gonzalez — Dissent


      There exists a strong public policy requiring people to stop and disclose

information at the scene of an automobile collision. Brown v. ProWest Transp.

Ltd. 76 Wn. App. 412, 418, 886 P.2d 223(1994). This public policy has been

codified by our legislature and deemed to be of such significance that criminal

liability attaches to those who fail to comply with the statute's requirements. That

statute provides:

      (1) A driver of any vehicle involved in an accident resulting in
      the injury to or death of any person or involving striking the body
      of a deceased person shall immediately stop such vehicle at the
      scene of such accident or as close thereto as possible but
      shall then forthwith return to, and in every event remain at, the
      scene of such accident until he or she has fulfilled the
      requirements of subsection (3) of this section; every such stop
      shall be made without obstructing traffic more than is necessary.

             (2)(a) The driver of any vehicle involved in an accident
      resulting only in damage to a vehicle which is driven or attended
      by any person or damage to other property must move the vehicle
      as soon as possible off the roadway or freeway main lanes,
      shoulders, medians, and adjacent areas to a location on an exit
      ramp shoulder, the frontage road, the nearest suitable cross street,
      or other suitable location. The driver shall remain at the suitable
      location until he or she has fulfilled the requirements of
      subsection (3) of this section. Moving the vehicle in no way
      affects fault for an accident.

             (b) A law enforcement officer or representative of the
      department of transportation may cause a motor vehicle, cargo, or
      debris to be moved from the roadway; and neither the department
      of transportation representative, nor anyone acting under the
      direction of the officer or the department of transportation
      representative is liable for damage to the motor vehicle, cargo, or
      debris caused by reasonable efforts of removal.

            (3) Unless otherwise provided in subsection (7) of this
      section the driver of any vehicle involved in an accident
      resulting in injury to or death of any person, or involving
      striking the body of a deceased person, or resulting in damage
      to any vehicle which is driven or attended by any person or

                                       - 3-
No. 76066-1-1/4
Price v. Gonzalez — Dissent


      damage to other property shall give his or her name, address,
      insurance company, insurance policy number, and vehicle
      license number and shall exhibit his or her vehicle driver's license
      to any person struck or injured or the driver or any occupant of, or
      any person attending, any such vehicle collided with and shall
      render to any person injured in such accident reasonable
      assistance, including the carrying or the making of arrangements
      for the carrying of such person to a physician or hospital for medical
      treatment if it is apparent that such treatment is necessary or if
      such carrying is requested by the injured person or on his or her
      behalf. Under no circumstances shall the rendering of assistance or
      other compliance with the provisions of this subsection be evidence
      of the liability of any driver for such accident.

              (4)(a) Any driver covered by the provisions of subsection (1)
      of this section failing to stop or comply with any of the requirements
      of subsection (3) of this section in the case of an accident resulting
      in death is guilty of a class B felony and, upon conviction, is
      punishable according to chapter 9A.20 RCW.

             (b) Any driver covered by the provisions of subsection
      (1) of this section failing to stop or comply with any of the
      requirements of subsection (3) of this section in the case of an
      accident resulting in injury is guilty of a class C felony and,
      upon conviction, is punishable according to chapter 9A.20
      RCW.

             (c) Any driver covered by the provisions of subsection (1) of
      this section failing to stop or comply with any of the requirements of
      subsection (3) of this section in the case of an accident involving
      striking the body of a deceased person is guilty of a gross
      misdemeanor.

            (d)This subsection shall not apply to any person injured or
      incapacitated by such accident to the extent of being physically
      incapable of complying with this section.

             (5) Any driver covered by the provisions of subsection
      (2) of this section failing to stop or to comply with any of the
      requirements of subsection (3) of this section under said
      circumstances shall be guilty of a gross misdemeanor:
      PROVIDED, That this provision shall not apply to any person
      injured or incapacitated by such accident to the extent of being
      physically incapable of complying herewith.


                                        4
No. 76066-1-1/5
Price v. Gonzalez — Dissent


             (6)The license or permit to drive or any nonresident privilege
      to drive of any person convicted under this section or any local
      ordinance consisting of substantially the same language as this
      section of failure to stop and give information or render aid following
      an accident with any vehicle driven or attended by any person shall
      be revoked by the department.

              (7) If none of the persons specified are in condition to
      receive the information to which they otherwise would be entitled
      under subsection (3) of this section, and no police officer is present,
      the driver of any vehicle involved in such accident after fulfilling all
      other requirements of subsections (1) and (3) of this section insofar
      as possible on his or her part to be performed, shall forthwith report
      such accident to the nearest office of the duly authorized police
      authority and submit thereto the information specified in subsection
      (3) of this section.

RCW 46.52.020(emphasis added).

       Here, pursuant to RCW 46.52.020, Stacy was legally required to take the

affirmative step of furnishing Anne with all of the information necessary to identify

herself immediately following the collision. Stacy did not comply with the law.

Rather, she provided Anne with the name and insurance information of another

individual—her mother—thereby concealing her identity and violating the law.

Stacy's refusal to provide her personal information at the scene of the collision

was contrary to longstanding public policy and RCW 46.52.020. Her refusal

establishes bad faith or false assurances.

       Conversely, Anne complied with the requirements of RCW 46.52.020 and

brought a claim against the individual named on the insurance card that was

provided to her at the scene of the collision. Anne was under no legal duty to

independently research or verify that the information provided to her at the scene

was true. To the contrary, the "inference" drawn by Anne in accepting that


                                         5
No. 76066-1-1/6
Price v. Gonzalez — Dissent


information as true was one protected by the force of law. No further action was

required of Anne to establish that she acted diligently under these circumstances.

Her compliance with applicable statutory requirements establishes her diligence,

as determined by the legislature.

       It is untenable that Stacy's violation of the statute's requirements could

result in criminal liability but be insufficient to establish bad faith or false

assurances in the context of a civil action. Such a result does nothing to

advance the purposes of either the statute of limitation or the hit and run statute.

Today's decision, in fact, undercuts the legislature's goal in passing the hit and

run statute. Rather than penalizing the noncompliant, the majority deems them

worthy of windfalls.

       I disagree that our legislature intends to allow criminals who successfully

conceal their identities to escape civil liability for their tortious actions. Stacy's

noncompliance with the requirements of RCW 46.52.020 establishes bad faith or

false assurances. Anne's compliance with the statute, standing alone, is

sufficient to establish that she acted with diligence. Accordingly, I would hold that

the statutory limitation period was equitably tolled.

       It is not just to incentivize criminality. It is not just to deny recompense to

the victim of criminality. I would reverse the order of dismissal.




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