January 2008

Updates and Clarifications

Concerning the article “Procedural Perfection Required,” by Mark A. Johnson, which appeared in the December 2007 Bar News: After the December issue went to print, the Washington State Supreme Court issued an opinion in Wright v. Terrell, 2007 WL 3293393 (November 8, 2007). The opinion reversed and remanded the decision of the Court of Appeals in Wright v. Terrell, 135 Wn. App., 722 (2006) in which, citing the Supreme Court’s decision in Bosteder v. City of Renton, 155 Wn. 2d 18 (2005), the Court of Appeals held that, even if a lawsuit is filed only against employees of a municipality, and not the entity, serving a non-judicial claim under former R.C.W. 4. 96.020 was mandatory if the conduct at issue was committed by the employees within the scope and course of their employment for the municipality. The Wright Supreme Court held that since five justices in Bosteder had found “that former RCW 4.96.020 does not apply to claims against individuals,” the Bosteder decision was not a plurality on the point (as the Wright Court of Appeals had concluded) and, therefore, the Court of Appeals had “misread” its opinion and “that former RCW 4.96.020 (2001) does not apply to claims against individual government employees” (emphasis added).

Readers should note that after the Supreme Court’s decision in Bosteder, the Legislature amended the statute to require the filing of claims when the conduct of individual employees is at issue. Given that the statute has now been amended, and given the prolific number of appellate decisions challenging compliance with the jurisdictional prerequisite of properly serving and filing a non-judicial claim, the author suggests that, irrespective of the Supreme Court’s decision in Wright, a claim should be served and the statutory waiting period observed in every case in which the conduct of an employee of a state or a municipal corporation is at issue.

In addition, under the section of the article entitled “Hospitals Can Hurt You,” the following sentence needed clarification: “Nearly every county in the state has a hospital operated by a county-owned public hospital district.” In fact, only King County has a “county-owned” hospital (Harborview). In other counties the PHDs are municipal corporations. The author would like to thank Richard Goldsmith, director of Legal and Public Affairs of the Association of Washington Public Hospital Districts, for pointing out the muddy language. A list of the public hospital districts can be found on the Association’s website at www.awphd.org.