                                                                            FILED 

                                                                          DEC 5,2013 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


KEITH 1. DIXON AND REBECCA 1.                 )
DIXON, husband and wife;                      )         No.30537-6-III
                                              )
                     Appellants,              )
                                              )
       v.                                     )
                                              )         UNPUBLISHED OPINION
YAKIMA HMA, LLC, d/b/a YAKIMA                 )
REGIONAL HOSPITAL, a for-profit               )
limited liability company; EDUARDO            )
MEIRELLES, MD and JANE DOE                    )
MEIRELLES, husband and wife; and              )
UNKNOWN JOHN and/or JANE DOES                 )
Nos. 1-20;                                    )
                                              )
                     Respondents.             )

       KORSMO, C.J. -    Keith Dixon and his wife sued his surgeon and hospital for

complications arising from surgery after he had been negligently dropped from a gurney.

The trial court dismissed the action for failure to accomplish service within the statute of

limitations period. We affirm.

                                          FACTS

       The case arose after Mr. Dixon was dropped from his gurney on May 29,2008,

shortly before his scheduled back surgery at Yakima Regional Hospital (Regional). The

surgery proceeded despite the incident. Complications, including at least one and
No.30537-6-III
Dixon v. Yakima HMA, LLC


perhaps two strokes, occurred during the operation as the result of increased blood

pressure.

       The Dixons filed suit in the Yakima County Superior Court on May 25, 20 II. The

following day, their counsel mailed a letter to Regional which was received May 31. The

letter invited Regional "to engage in meaningful mediation with my clients" and cited to

RCW 7.70.100(3). Plaintiff did not immediately serve Regional or the surgeon, Dr.

Eduardo Meirelles. 1 Service was accomplished on Regional on August 25 and on Dr.

Meirelles on October 3. The 90 day period for service expired August 23.

       The defendants moved to dismiss the action as time barred. The trial court found

that the letter was a request for mediation, but concluded that it was ineffectual due to the

suit being filed prior to the mediation request. The court then ruled that it lacked

jurisdiction as the action was not timely served. After the order of dismissal was entered,

the Dixons appealed to this court.

                                        ANALYSIS

       The sole issue in this appeal is whether the trial court correctly concluded that the

action was untimely. The Dixons argue that their request for mediation tolled the statute




       ICounsel explained at oral argument that service purposely was delayed in order
to pursue mediation.

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Dixon v. Yakima HMA, LLC


of limitations for an additional year, making their service on the defendants timely. We

agree with the trial court and affirm the dismissal. 2

       This case involves the interplay of three statutes. The first, RCW 4.16.350(3), is

the medical malpractice statute of limitations. In relevant part, it provides that such

actions "shall be commenced within three years of the act or omission alleged to have

caused the injury or condition."

       The second statute, RCW 4.16.170, has several provisions of import to this case.

It first provides that a statute of limitations "shall be deemed commenced when the

complaint is filed or summons is served whichever occurs first." The plaintiff IS required

to serve one or more of the defendants personally within 90 days of filing. Id. It also

provides that when "following filing, service is not so made, the action shall be deemed

to not have been commenced for purposes of tolling the statute of limitations." Id.

       The final statute, RCW 7.70.110, provides:

       The making of a written, good faith request for mediation of a dispute
       related to damages for injury occurring as a result of health care prior to
       filing a cause of action under this chapter shall toll the statute of limitations
       provided in RCW 4.16.350 for one year.

RCW 7.70.110 is a tolling provision. Morris v. Swedish Health Servs., 148 Wn. App.

771, 776, 200 P.3d 261 (2009). Ifa plaintiff makes a good faith request for mediation



       2In light of our resolution, we do not address the efficacy of the May 26 letter as a
mediation request.

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No. 30537-6-111
Dixon v. Yakima HMA, LLC


prior to filing a cause of action for medical malpractice, the three year statute of

limitations under RCW 4.16.350(3) is tolled for one year.3

         The statute of limitations is an affirmative defense that must be proved by the

defendant. Haslund v. City o/Seattle, 86 Wn.2d 607, 620-21,547 P.2d 1221 (1976). A

plaintiff asserting an exception to the statute of limitations, however, bears the burden of

proving that a tolling provision applies. Cannavina v. Poston, 13 Wn.2d 182, 190-91,

 124 P.2d 787 (1942) (recognizing the burden of proof rests on a party asserting partial

payment as a rationale to toll the statute of limitations); State v. Walker, 153 Wn. App.

701, 707,224 P.3d 814 (2009) (State bore burden of establishing exception to statute of

. limitations ).

         The trial court granted the motion for summary judgment, finding that it lacked

jurisdiction to hear the Dixons' claims because they filed their complaint a day before

they requested mediation, and RCW 7.70.110 only tolls the statute of limitations when

the request for mediation is made prior to the filing of a cause of action for medical

malpractice. Since the Dixons did not invoke the tolling provision, the three year statute

of limitations barred the Dixons' claims when they failed to serve the defendants within

90 days of filing.


       3 Whether or not a party has made "a written, good faith request for mediation"
sufficient to invoke the tolling provision ofRCW 7.70.110 is a question of law, which
this court reviews de novo. Breuer v. Presta, 148 Wn. App. 470, 475, 200 P.3d 724
(2009).

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No.30537-6-III
Dixon v. Yakima HMA, LLC


       The trial court did not err in finding that the Dixons failed to invoke the tolling

provision ofRCW 7.70.110. Ifa statute's meaning is plain on its face, then courts give

effect to that meaning as an expression of legislative intent. Dep '( ofEcology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1,9,43 P.3d 4 (2002). The plain language of the

statute is clear: the one year tolling period provided by RCW 7.70.110 applies only to a

written, good faith request for mediation that occurs prior to filing a cause of action

under chapter 7.70 RCW.4 The Dixons filed their action on May 25, one day before they

notified the respondents of their intention to file suit and inviting them to mediate the

claims. Under the plain language ofRCW 7.70.110, the Dixons failed to invoke the

tolling provision and therefore the statute of limitations expired before the Dixons served

the respondents.

       The essence of the Dixons' argument is that by making the mediation request

following filing, they effectively invalidated the filing. They cite no relevant authority

for that proposition. Their argument also fails under the language of the statutes. As

noted, the mediation request was effective under RCW 7.70.110 only ifmade before

filing. That did not happen, so the request was a nullity. The filing was only effective if

the action was "commenced" by serving within 90 days. RCW 4.16.170. That also did


        4 This reading of the statute also makes sense in light of the apparent purpose of
RCW 7.70.110, which is to facilitate settlement of disputes through pre suit mediation.
Unruh v. Cacchiotti, 172 Wn.2d 98, 114,257 P.3d 631 (2011). Generally, filing suit
prior to inviting mediation probably does not indicate a good faith intent to mediate.

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No.30537-6-III
Dixon v. Yakima HMA, LLC


not happen here. Because the statute of limitations period was neither tolled by a timely

request for mediation nor by timely service, the trial court correctly concluded that the

action was not timely commenced.

       Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                        Korsmo, C.J.

WE CONCUR:




                                                        Fearm     J.




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