                                                                                 FILED
                                                                        COURT. OF APPEALS
                                                                               DIVIS10bj II
                                                                          u JUL 14
                                                                                         AM 9: ca
                                                                       STATE ;OF VMSHINGTON
                                                                      8 Y_._




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

VALERIE ANDERSON and                                                 No. 46549 -3 - II
STEVEN B. ANDERSON, husband and wife
and the marital community thereof,

                                  Appellants,


             V.



MASON COUNTY; BARBARA
BRADSHAW and JOHN DOE BRADSHAW,
husband and wife and the marital community
thereof, owners of Allyn View Mobile Home
Park,                                                          UNPUBLISHED OPINION




         WORSWICK, J. — Valerie Anderson suffered injuries in 2011 when she fell into a sinkhole


she contends was caused by Mason County' s negligent decommissioning of a septic tank in 2000

or   2001.    Anderson appeals the superior court' s summary judgment dismissal of her claim

against Mason County. Anderson argues that the superior court erred in applying the

construction statute of repose, RCW 4. 16. 310, because ( 1) the discovery rule and not the statute

of repose applies to her claim, and ( 2) the statute of repose had not yet run because the county

performed repair work      in 2010. We   affirm.
No. 45407 -6 -II




                                                     FACTS


       In 1999 or 2000, Mason County required the Allyn View Mobile Home Park (Allyn

View) to convert their sewage disposal from a septic tank system to the county' s sewer system..

In 2000 or 2001, Mason County decommissioned the septic tanks.

       In 2010, a sinkhole formed at Allyn View. Allyn View' s owner and manager reported


the sinkhole to the county, alleging that the sinkhole formed because the septic tank was not

properly decommissioned. Clerk'         s   Papers ( CP)   at   28.   The county filled this hole with gravel in

February of 2010.

       In February of 2011, Valerie Anderson was walking at Allyn View in a different location

than the 2010 sinkhole, when anew sinkhole opened up beneath her. She fell into the sinkhole,

injuring her arm.

       Anderson     sued   the county   for her injuries.'       The county moved for summary judgment,

arguing that the six-year construction statute of repose barred Anderson' s recovery for injuries

stemming from the removal of the septic tanks in 2000 or 2001 because the cause of action did

not accrue until   2011.   The superior court granted the county' s motion. Anderson appeals. .

                                                   ANALYSIS


        Anderson argues that the superior court erred by ordering summary judgment dismissal

because the discovery rule barred application of the statute of repose until Anderson' s injury, or




  The record on appeal does not contain Anderson' s complaint. It appears she sued Mason
County for negligence.

2 RCW 4. 16. 310.


                                                           N
No. 45407 -6 -II




alternatively because the statute of repose has not expired by virtue of the county' s 2010 repair

work on a sinkhole. We disagree.


                                             I. STANDARD OF REVIEW


       We review a trial court' s order granting summary judgment de novo, engaging in the

same inquiry as the trial court. Clark County Fire Dist. No. S v. Bullivant Houser Bailey P. C.,

180 Wn.   App.   689, 698, 324 P. 3d 743,       review   denied, 181 Wn.2d 1008 ( 2014). We resolve all


factual disputes and reasonable inferences in favor of the nonmoving party. Clark County Fire,

180 Wn.   App. at 698. Summary judgment is appropriate where there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Clark County Fire,

180 Wn.   App.      at   698.   When construing a statute, we determine legislative intent by giving effect

to the plain language of a statute when possible. Parkridge 4ssocs., Ltd v. Ledcor Indus., Inc.,


113 Wn. App. 592, 602, 54 P. 3d 225 ( 2002).

                                      II. CONSTRUCTION STATUTE OF REPOSE

        The construction statute of repose provides:


        All claims or causes of action as set forth in RCW 4. 16. 300 shall accrue, and the
        applicable statute of limitation shall begin to run only during the period within six
        years after substantial completion of construction, or during the period within six
        years after the termination of the services enumerated in RCW 4. 16. 300, whichever
        is later.


RCW 4. 16. 310. RCW 4. 16. 300 provides that the statute of repose " shall apply to all claims or

causes of action of any kind against any person, arising from such person having constructed,

altered or repaired       any improvement     upon real   property."
No. 45407 -6 -II




        Statutes    of repose       differ from   statutes of   limitation because "` [ a] statute of limitation bars


plaintiff   from   bringing    an   already   accrued claim after a specific period of           time,"'   whereas a




cc statute of repose terminates a right of action after a specified time, even if the injury has not yet

occurred."'    1000 Virginia Ltd. P' ship          v.    Vertecs   Corp.,   158 Wn.2d 566, 574- 75, 146 P. 3d 423


 2006) ( quoting Rice     v.   Dow Chem. Co., 124 Wn.2d 205, 211- 12, 875 P. 2d 1213 ( 1994));                    see




also Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt &

Nichols-Kiewit Constr. Co., 176 Wn.2d 502, 511, 296 P. 3d 821 ( 2013). Thus, we perform a two-


step analysis for a cause of action arising from construction, alteration, or repair of an

improvement to real property: first, the cause of action must accrue within six years of either

substantial completion or termination of services and, second, the claim must be filed within the


applicable statute of limitations once the cause of action has accrued. 1000 Virginia Ltd. P' ship;

158 Wn.2d at 575.


                      III. DISCOVERY RULE DOES NOT RESCUE ANDERSON' S CLAIM


        Anderson first argues that the discovery rule and not the statute of repose applies because

she could not      have discovered the harm resulting from the                septic   tank   removal until   2011. We


disagree, because the discovery,,rule does not apply to Anderson' s claim.

        Our Supreme Court in Gevaart                v.   Metco Construction, Inc., 111 Wn.2d 499, 502, 760


P. 2d 348 ( 1988) has already rejected the proposition that the discovery rule overcomes the

statute of repose. The Gevaart court specifically held that the statute of repose limits the

discovery rule and absolutely bars claims that have not accrued within six years. Gevaart, 111

Wn.2d at 502. Anderson' s argument fails.




                                                                11
No. 45407 -6 -II




                              IV. STATUTE OF REPOSE BARS ANDERSON' S CLAIM


         Anderson next argues that her claim is not barred because the statute of repose began to


run in 2010 when the county filled a sinkhole. We disagree.

         Anderson argues that the 2010 sinkhole repair began a new statute of repose because it

was a " repair" under the meaning of RCW 4. 16. 300, and " Mason County was aware that the two

holes they   were   filling   were a part of a     larger   and connected septic   tank field." Br. of Appellant



at 12. But Anderson cites no authority for the idea that Mason County' s subjective knowledge of

other decommissioned septic tanks in the area means that the 2010 work triggered a statute of

repose relevant to the 2011 sinkhole. We reject this interpretation of the statute of repose.

         Furthermore, Anderson does not argue, nor are there any facts in the record to suggest,

that the 2010 repair work bore any causal relationship to the formation of the 2011 sinkhole.

Anderson' s cause of action arises from the decommissioning of the septic tanks in 2000 or 2001,

not from the filling of the sinkhole in 2010. It is undisputed that Anderson fell in a hole that
formed in 2011 in a different location than the 2010 repair. Anderson acknowledges that the


 improperly    filled   septic    tanks[,]"    not the filling of the sinkhole in 2010, gave rise to her claim.

Br. of Appellant at 9. Thus, the 2010 -work did not trigger a statute of repose relevant to

Anderson' s claim.


          Here, it is uncontested that the county substantially completed its work removing the

septic   tanks in   2000   or   2001.   Thus, any claim arising from this project had to accrue in 2007 at

the latest. And the parties agree that the cause of action did not accrue until 2011 when

Anderson fell into the          sinkhole.     Thus, her   claim   is barred under the   statute of repose.
No. 45407 -6 -II




        ENiiiONW-
                1.i


        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.




                                                                     Worswick, J.
 We concur:




 J , hanson, C. J.




 Melnick, J




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