                                                                                               FILED
                                                                                         COURT OF APPEALS
                                                                                             DIVISION 11

                                                                                        201511AR    0          8: 31

                                                                                         STAI      r AM 3 t.      O?1

                                                                                         BY




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II

    B.R.,t                                                                   No. 44874 -2 -II


                                       Appellant,


             v.




    SUZANNE HORSLEY, FREDERICK                                           PUBLISHED OPINION
    HORSLEY, KEITH TIMMER, and CHURCH
    OF THE LIVING WAY,


                                       Respondents.


             JOHANSON, C. J. —      The issue in this appeal is the application of the statute of limitations


to    a   claim    of childhood sexual   abuse.     B.R. appeals from the trial court' s grant of summary

judgment in favor of Suzanne and Frederick Horsley, Keith Timmer, and the Church of the Living

Way (Horsley) finding that her claim for damages against Horsley for childhood sexual abuse was

time barred under RCW 4. 16. 340( 1). 1 Although B.R. had counseling for the sexual abuse when

she was a teenager, the record demonstrates a genuine factual dispute regarding when she




t We refer to the appellant by her initials in order to protect her privacy.
1
     We    refer   to the   defendants collectively   as "   Horsley" except where necessary to name each
individually.
No. 44874 -2 -II



discovered the        extent     and   cause     of   her   claimed     injuries.   Accordingly, we reverse the order

dismissing her claims and remand for trial.

                                                               FACTS


         Between June 2002 and late 2004, B.R. was sexually abused by Suzanne Horsley, an adult

youth group leader at the Church of the Living Way. B.R. was 13 years old when the abuse began,

and she   turned 18        in September 2006.          Suzanne Horsley pleaded guilty to several counts of child

molestation.




         Kelly Peck, a mental health therapist, treated B.R. while she was still a minor from October

2005   until   July   2006 for      symptoms related           to her    abuse   including " stress, anxiety, depression,

anger,   feelings     of   betrayal,   guilt,    worry, [ and]    problems with      memory."     Clerk' s Papers ( CP) at


103.   During the time Peck treated B.R., B.R. was not married, was not sexually active, and had

never been employed. In July 2006, a few months before her 18th birthday, B.R. discontinued her

treatment with Peck.


          In 2008, B.R. married a man who had been her first boyfriend. Over the next several years,


B. R: and her husband struggled in their marriage. B. R. experienced sexual dysfunction and a lack

of   intimacy,   and she and        her husband         argued about whether         to have   children.   Her symptoms,


including      flashbacks,       guilt,    and    other     emotional    problems,     were worse than she had ever


experienced,      and      the   marital   problems         continued until      their divorce in 2011.    B. R. was also


confused about her sexuality. She engaged in a sexual relationship with a woman that also caused

significant confusion in her life.




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No. 44874 -2 -II



           B. R. also experienced problems at work. These problems began in 2009, when she became

a   high   school volleyball coach and attempted                   to become        a   firefighter.    B. R. also struggled to


reconnect with her religion, but the church was no longer a comforting influence in her life.

           By   November 2011, B. R.           was    in   therapy      with   Mary     Dietzen, Ph.D., in Spokane.         It was


then that B. R. realized the serious effect of the abuse on her adult relationships, sexuality, work,

and   spirituality.        Dr. Dietzen helped B.R. to understand how Horsley' s sexual abuse triggered

symptoms based on the different, new life events that B.R. was experiencing.

           On January 3, 2012, after several months of treatment with Dr. Dietzen, B.R. sued Horsley.

Horsley moved for summary judgment, arguing that the statute of limitations barred B.R.' s suit.

In opposition to Horsley' s motion, B.R. presented portions of Dr. Dietzen' s deposition, during

which the following exchange, relevant to the statute of limitations, occurred:

                   Q. ' Did you ask her how long she had felt this way, that the abuse by Horsley
           had taken from her certain things that she felt were important, such as intimacy,
           sexuality, and those kinds of things?
                      A. I   got   the impression that it'     s   been in the last,        you   know, two -- two -plus
           years,     because   she' s   holder [   sic]   now, she' s --      she takes classes, she' s out in the
           world, she' s      away from that         environment,         she' s   in   a   relationship --   got in this
           relationship with Jody.
                      So   more of    it has   come   to her --    you know, to the forefront in the last year
           or two, I would say, she' s developed a lot more of an understanding of kind of the
           impact.


CP    at   159 -60.    The trial court granted Horsley' s motion for summary judgment,concluding that

B.R.' s suit was time barred by the three -year statute of limitations.2 B.R. appeals that order.




2 RCW 4. 16. 340( 1).

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No. 44874 -2 -II



                                                  ANALYSIS


           The issue here is whether reasonable persons could only conclude that B.R. realized that

her injuries were connected to the childhood sexual abuse more than three years before she filed


suit.     We hold that there are genuine issues of material fact that preclude summary judgment

regarding when B.R. connected her injuries to the childhood sexual abuse.

                                             I. STANDARD OF REVIEW


           We review a summary judgment order de novo. Camicia v. Howard S. Wright Constr. Co.,

179 Wn.2d 684, 693, 317 P. 3d 987 ( 2014).            Summary judgment based on the statute of limitations

is appropriate only where the pleadings, depositions, interrogatories, admissions, and affidavits in

the record establish that no genuine issue of material fact exists regarding when the statutory period

began.     Young Soo    Kim   v.   Choong -Hyun   Lee, 174 Wn.   App.   319, 323, 300 P. 3d 431 ( 2013); CR


56( c).    Therefore, the trial court could only grant summary judgment finding that the statute of

limitations barred B.R.' s claims as a matter of law if no genuine issue of fact exists as to when

B. R.   realized   the cause and extent of     her injuries. Goodman v. Goodman, 128 Wn.2d 366, 373,


907 P. 2d 290 ( 1995).       The statute of limitations is an affirmative defense and the defendant bears


the burden of      proof.    Korst   v.   McMahon, 136 Wn.    App.   202, 208, 148 P. 3d 1081 ( 2006).      We


perform the same inquiry as the trial court, review the evidence in the light most favorable to the

nonmoving party,       and   draw    all reasonable   inferences in the nonmoving party'   s   favor.   Lakey v.

Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P. 3d 860 ( 2013).




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No. 44874 -2 -II



                         II. THE CHILDHOOD SEXUAL ABUSE STATUTE OF LIMITATIONS


          The parties agree that RCW 4. 16. 340( 1)( c) is the controlling provision. The statute states,

in relevant part,


          All claims or causes of action based on intentional conduct brought by any person
          for recovery of damages for injury suffered as a result of childhood sexual abuse
          shall be commenced within the later of the following periods:

                    c) Within three years of the time the victim discovered that the act caused
          the injury for which the claim is brought:
                    PROVIDED, That the time limit for commencement of an action under this
          section is tolled for a child until the child reaches the age of eighteen years.


RCW 4. 16. 340( 1).


          The legislature' s intent in enacting this statute of limitations was to provide

          a broad and generous application of the discovery rule to civil actions for injuries
          caused by childhood sexual abuse.... [ I]ts primary concern was to provide a broad
          avenue of redress for victims of childhood sexual abuse who too often were left
          without a remedy under previous statutes of limitation.

C.J.C. v. Corp. ofthe Catholic Bishop of Yakima, 138 Wn.2d 699, 712, 985 P. 2d 262 ( 1999).

            T] his special statute of limitations is unique in that it does not begin running when the

victim    discovers      an   injury. Instead, it specifically focuses on when a victim of sexual abuse

discovers the   causal        link between the   abuse and   the   injury   for   which   the   suit   is brought." Korst,


136 Wn.     App.    at   208 ( citing RCW 4. 16. 340( 1)(   c)).   This is because "[      t] he legislature specifically

anticipated that victims may know they are suffering emotional harm or damage but not be able to

understand    the   connection     between those    symptoms and       the abuse."        Korst, 136 Wn. App. at 208.

          Application of the statute of limitations allowed the plaintiffs in Korst to go forward, while


it precluded the plaintiff' s claims in Carollo v. Dahl, 157 Wn. App. 796, 803, 240 P. 3d 1172

 2010).    B.R. contends that in Carollo, Division Three of this court misapplied Korst' s holding,


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No. 44874 -2 -II



while Horsley contends that B.R.' s claims are even more clearly barred by the statute of limitations

than Carollo' s claims.


            In Korst, the plaintiff sued her parents for damages caused by her father' s sexual abuse.

136 Wn. App. at 204 -05. The abuse started when she was 8 years old and continued until she was

14.    Korst, 136 Wn.            App.   at   204.   In 1995, Korst wrote her father a letter acknowledging his

mistreatment of           her.   Korst, 136 Wn.         App.       at   204.      Seven years later, in 2002, Korst entered


counseling for       problems      that      she was   having      with     her   son.   Korst, 136 Wn.         App.    at   204.   During

those sessions, she learned that her father' s abuse was the likely cause of those problems. Korst,

136 Wn.      App.    at   204 -05. Korst sued her parents, and the trial. court granted a directed verdict in


her parents' favor reasoning that the 1995 letter showed that she had connected the abuse with her

injuries    at   the time that she wrote         it. Korst, 136 Wn.               App.   at   205.   We reversed, concluding that

although the letter showed that Korst resented her father for sexually abusing her, it did not show

that Korst understood the effects of his abuse. Korst, 136 Wn. App. at 209.

            In Carollo, the       plaintiff was molested as a               teenager     by    a   camp    counselor.
                                                                                                                         157 Wn. App.

at   798.   He sought counseling for emotional difficulties in 1988 and was told at that time that the

abuse was the likely source of these difficulties. Carollo, 157 Wn. App. at 798. In 1995, he " was

diagnosed        with various       posttraumatic        stress     disorder ( PTSD)               symptoms"      such as depression,


flashbacks,       and nightmares.            Carollo, 157 Wn. App. at 798 -99. In 2008, Carollo filed suit after

his   symptoms       became       much worse and         he   was unable           to function       at   this job.   Carollo, 157 Wn.


App. at 799. His new symptoms included panic disorder, major anxiety, major depressive disorder,

and agoraphobia.            Carollo, 157 Wn.           App.   at   799.     Carollo left his job and entered therapy where




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No. 44874 -2 -II



his counselor related the new symptoms to the childhood sexual abuse. Carollo, 157 Wn. App. at

799.


          The trial court dismissed the suit as time barred. Carollo, 157 Wn. App. at 802. Division

Three affirmed, holding that, unlike in Korst, the plaintiff could not claim that he had only recently

connected    his   emotional    harm to   childhood sex abuse.          Carollo , 157 Wn.    App. at   802 -03. " Rather,


Carollo is claiming that the severity of his most recent symptoms should entitle him to the more

lenient   provisions of       the   discovery   of   harm   provision   in the   statue."   Carollo, 157 Wn. App. at

802.


          This   case   is   more   like Korst than Carollo.       Like Korst, B.R. did not understand the full


effect of the childhood sexual abuse until she entered counseling as an adult. Although B.R. had

dealt with serious symptoms of her abuse for many years, she presented evidence that, until

recently, she was not aware that her new, adult difficulties with her marriage, her work, and

connecting with religion were caused by the childhood abuse.

                                      III. GENUINE ISSUES OF MATERIAL FACT


          In light of the statute of limitations and the case law interpreting it, we review the record

de novo and determine whether the trial court erred when it found that, based on the record, no

genuine dispute of material fact exists as to when B.R. realized the cause and extent of the injuries


she alleges.     There are three sources of evidence that support B. R.' s claim that within the three -


year statute of limitations she discovered new or more serious injuries that were caused by the

abuse: B.R.' s declaration, and Dr. Dietzen' s and Peck' s deposition testimony. We recount below

some of the evidence presented by both parties that demonstrates the existence of a genuine dispute

of material fact regarding when B.R. connected the sexual abuse to her claimed injuries.


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No. 44874 -2 -II



        B. R. declared that ( 1) her injuries began in 2008 with the problems that she experienced


throughout her     marriage until    it   ended   in 2011, (   2) she suffered additional injury in 2009 due to

her problems at work as a volleyball coach and in training to be a firefighter, and ( 3) the final new

or more serious injury that she alleged occurred in 2010 when she attempted to reconnect with and

seek comfort in her religion. B.R. further declared that after she began therapy with Dr. Dietzen

in 2011,   she   began " to   realize   how seriously     affected"   she was   by   the   abuse "   in relationships,


sexuality,   work[,]   and spirituality" and established the causal connection. CP at 178.

                         A. PROBLEMS WITH INTIMACY AND IN HER MARRIAGE


        Because she was not sexually active in 2006 when she was a young teen prior to meeting

and marrying her husband, B. R.' s sexual dysfunction and problems with intimacy are new injuries

that occurred at the earliest when she was married in 2008 and continued until her divorce in 2011.


B.R.' s intimate relationship with her husband caused " worse flashbacks and emotions than [ she]

had ever had before" and this was, at least, a more serious injury. CP at 176. Her sexual confusion

was   further    complicated   by   her intimate relationship       with a woman.      B. R.' s fear about having

children is also a new injury because she had never considered starting a family before her •

marriage.




        B.R.' s declaration explaining the genesis of her problems with sexual dysfunction and Dr.

Dietzen' s deposition testimony where she stated that she thought B.R. had not experienced these

problems     before the last " two -plus     years,"    demonstrate that a triable question exists regarding

whether she experienced a new injury relating to intimate relationships during the three -year

statute of limitations. CP at 159. Peck' s deposition testimony also lends support to this conclusion




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No. 44874 -2 -II



because     she   testified that   during    the time that           she treated B. R., B. R. was not married or


romantically involved with anyone and did not have any children.

          These injuries are precisely the type of injuries for which the legislature intended to provide

a   remedy    when   it   considered     the 1991   amendment          to RCW 4. 16. 340.            In enacting the 1991

amendment to the statute of limitations for actions based on childhood sexual abuse, the legislature


recognized that these are the types of injuries that a victim may not fully understand until later in

life: "   Even though victims may be aware of injuries related to the childhood sexual abuse, more

serious    injuries may be discovered many           years       later."   LAWS   OF 1991,         ch.   212, § 1( 5).   In fact,


when considering the 1991 amendment, the House Judiciary Committee specifically identified

marital problems and sexual dysfunction as examples of more serious injuries that victims of


childhood sexual abuse will,        necessarily,     not experience or understand until                  later in life. HOUSE


COMM. ON JUDICIARY, H.B. REP: ON ENGROSSED SUBSTITUTE HB 2058, 52d LEG., REG. SESS.


 Wash. 1991).


           Horsley points to B.R.' s deposition testimony as evidence that her injuries are not new or

more serious. As an example:


                   Q.     Next   page,   62, that   visit   is   on   March 8     of [ 20]   06.     It says ` B[.R.]
           continues to have some interpersonal struggles with her relationships with boys and
           mixed feelings she has towards sex and how she feels her ` abuse ruined it all for
           her.
                   Did I read that accurately?
                   A. That could be an accurate statement.
                   Q. Did you feel that what Suzanne Horsley had done to you had ruined
           many aspects of your life?
                   A. I feel that, yes.
                  Q. Including but not limited to having healthy relationships with boys and
           being able to engage in sex in a healthy way?
                   A. Yes.
                   Q. You still have those problems today?
                   A. Yes.


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No. 44874 -2 -II




CPat96.


          We reject the conclusion that " problems with boys" as a young teen is, as a matter of law,

the same injury as marital problems, lack of marital intimacy, confusion and trepidation about

childbearing, and sexual dysfunction. B.R.' s deposition testimony simply confirms that a triable

issue of fact exists as to what type of injuries she suffered and when she connected them with her


abuse.    These excerpts from B.R.' s deposition testimony do not address B.R.' s evidence that she

experienced new and more serious injuries due to new life experiences as an adult and that she


realized only after counseling with Dr. Dietzen in 2011 that these injuries were related to Horsley' s

abuse.



                                         B. PROBLEMS WITH EMPLOYMENT


          B.R. also identifies work -related problems as a new injury that she connected to the

childhood sexual abuse after counseling with Dr. Dietzen. Beginning in 2009, B.R. had difficulties

and experienced panic at work as she was              training   to be   a   firefighter, " knowing   [ as a firefighter

that   she] might   have to   help   a   known   child molester,"   and she was afraid to fall asleep at the fire

station   because   she   thought that her frequent,     nocturnal   yelling     would   hurt her job   prospects.   CP


at   177. Dr. Dietzen declared that "[ m] any        child sexual abuse survivors struggle in the work place

with   accepting authority,"    that B.R. was struggling because she felt " controlled" at work, and that

these symptoms can impede workplace success and development. CP at 207. B.R. also struggled

to control her emotions as a high school volleyball coach because she experienced anger that


someone in a similar position of authority exploited her vulnerability when she was younger and

sadness when faced with the happiness that she never enjoyed as a teenager. B.R. was unaffected

by any of these work -related problems in 2006 and did not experience them until 2009.

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No. 44874 -2 -II



           Horsley argues that these injuries are not different from the injuries that B.R. reported to

Peck. Horsley again points to B.R.' s deposition testimony:

                         Q. What other ways, if at all, have the symptoms or the residues of the
           abuse affected your ability to do your job?
                         A. There'    s sometimes when      I just don' t feel like   doing   anything.   My job
           is   a   very   social    job. We deal a lot with the public and there' s sometimes where
           even with my job at the Red Lion where I just don' t feel that I want to be around
           people.

                         Q. That' s something that you had years ago as well --
                         A. Yes.
                         Q. --   when you Saw Peck?
                         A. Yes.


CP   at   98.       This deposition testimony may conflict with B.R.' s declaration where she stated that

she experienced different injuries when she worked as a volleyball coach and tried to become a


firefighter.3 And this deposition testimony does not address Dr. Dietzen' s observations about

B.R.' s difficulties with authority. These arguable conflicts in the evidence demonstrate that triable

issues of fact exist regarding whether she suffered new work -related injuries within the three -year

statute of limitations.




3 We also conclude that B.R. did not file her declaration merely to create a conflict with her
deposition testimony. It is generally impermissible to file an affidavit or declaration after giving
 clear answers to unambiguous [ deposition] questions which negate the existence of any genuine
issue     of material       fact."    Marshall   v.   AC & S Inc.,   56 Wn. App. 181, 185, 782 P.2d 1107 ( 1989)
 alteration         in   original).     A contradictory declaration "       without     explanation"      is insufficient.

Marshall, 56 Wn. App. at 185. Here, however, B. R.' s deposition testimony was not unambiguous
and the declaration explains, with additional details, the specific new injuries that she suffered —
marital problems, work problems, sexual dysfunction, and problems with her religion. Moreover,
Dr. Dietzen' s deposition testimony and declaration provide additional support for B.R.' s argument
that these injuries are different in kind.
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No. 44874 -2 -II



                                    C. PROBLEMS CONNECTING WITH RELIGION


          Finally, B.R. identifies her inability to reconnect with and seek comfort from her religion

as an   injury   that   she   did   not connect    to her   abuse until   her counseling        with    Dr. Dietzen.   B.R.


realized that " when [ she] tried to return to church in 2007 and again in 2010 that religion is not


comforting because        of [her] abuse."     CP at 177. She also discussed this problem with Dr. Dietzen.


Dr. Dietzen declared that "[           i]t is increasingly recognized that spirituality can have a major

buffering   effect on     traumas     such as sexual assault....          Because B[. R.]       was abused by a church

leader,   and    because      she   was   blamed for her       abuse   by    church       leaders, she has experienced


spirituality    as a negative rather      than a   positive experience."       CP    at   207 -08.   Horsley advanced no

contrary argument.


          Viewing the evidence and all reasonable inferences in B. R.' s favor, and having no

argument from Horsley against it, it is reasonable to infer that B.R. did not causally connect her

discomfort with religion to her abuse until she discussed it with Dr. Dietzen beginning in 2011.

Thus, summary judgment based on the statute of limitations is inappropriate on this claim.

                                                    IV. CONCLUSION


          In summary, B.R. argues that she experienced new or more serious injuries from her sexual

abuse when she was married, became sexually active, discussed having children with her husband,

got a job, and tried to reconnect with the church. B.R. presented evidence that these injuries are


new or more serious because she did not understand how her sexual abuse would affect these parts

of her life until she actually had these experiences and entered into sexual abuse counseling with

Dr. Dietzen in 2011.          This evidence, together with Horsley' s contrary evidence and viewed in a

light   most   favorable to B. R., demonstrates that           material     facts   are   in dispute.    Thus, a jury must


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No. 44874 -2 -II



resolve   the factual issues   and   determine   whether   the   statute of   limitations bars her   claim.   Oostra


v.   Holstine, 86 Wn. App. 53.6, 543, 937 P. 2d 195 ( 1997), review denied, 133 Wn.2d 1034 ( 1998).

Accordingly, we reverse the trial court' s summary judgment order and remand for trial.




 We concur:




 MAXA J.




SUTTON, J.




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