On March 9, 2021, Division III of the Court of Appeals issued Hanson v. Carmona, et. al., 16 Wash.App.2d 834, ___ P.3d ___ (2021), holding that a claimant is required to submit pre-suit notice on the municipality when suing a government employee in her individual capacity, regardless of whether the government entity is a named defendant.
- Factual and procedural background.
On September 6, 2016, Miriam Gonzalez Carmona struck a vehicle driven by Kylie Hanson after Carmona drove through a red stop light. Ms. Carmona was employed by a local government entity. Hanson brought suit against Carmona and an advisory council that oversees the local entity, but did not submit a statutory notice of claim with the advisory council. Defendants brought summary judgment of dismissal, which was denied by the trial court who concluded the suit against Carmona individually survived the lack of pre-suit government notice. Division III of the Court of Appeals accepted discretionary review.
- The Hanson court re-affirmed that the pre-suit notice requirement extends to local government employees in their individual capacities and rejected the argument that the pre-suit notice statutes violate the separation of powers doctrine.
Judge George B. Fearing authored the unanimous decision reversing the trial court. The court first noted that RCW 4.96.010 and RCW 4.96.020 require a claim for damages prior to filing a lawsuit against local government entities and “their officers, employees, or volunteers” acting in those capacities for the local government entity. Id. at 840 (emphasis in original). Relying primarily on Hyde v. University of Washington Medical Center, 186 Wn. App. 926, 347 P.3d 918 (2015), the Hanson court noted that prior cases have held the pre-suit notice statutes extend to suits arising from the conduct of a government employee “even if the claimant only sues the employee.” Id. at 840-41 (citing Hyde, 186 Wn. App. at 930-31).
The Hanson court rejected Hanson’s novel argument that RCW 4.96.010 and RCW 4.96.020(4) are unconstitutional under the separation of powers doctrine because the notice statutes act as procedural rules that only the State Supreme Court can adopt and implement. The court noted that RCW chapter 4.96 originated as a result of the legislature’s authority to conditionally waive sovereign immunity of the government. “Critically important” to the court’s analysis in Hanson, was the fact that because the right to sue the State or local government must be derived from statutory enactment, “the legislature may establish the conditions which must be met before that right can be exercised.” Id. at 844.
The court acknowledged that RCW 4.96.020(4), which is similar to statutes that had been stricken down for violating the separation of powers doctrine, does add an additional procedural obstacle for plaintiffs. However, the court noted that the Washington Constitution expressly grants the State Legislature the power to waive sovereign immunity and to impose conditions on suits against the state and municipal corporations. Id. at 851-52. Further, in the other cases where the statutes were stricken down, notably the pre-suit notice requirement for medical malpractice claims under the former RCW 7.70.100(1), the court highlighted that the suits were brought against private as well as public entities, including McDevitt v. Harborview Medical Center, 179 Wn.2d 59, 316 P.3d 469 (2013).
- Impact and import of Hanson’s holdings.
The Hanson opinion is important for at least three reasons. First, it re-affirmed the requirement that lawsuits brought against local government entities and their employees be only brought after providing the pre-suit notice contemplated by RCW 4.96.010 and RCW 4.96.020(4).
Second, the Hanson case should also be instructive to potential claimants and their counsel regarding the import of adequately researching the defendants prior to filing suit, and to also not wait near the end of the statute of limitations before filing suit. The plaintiff filed suit approximately ten (10) days prior to the expiration of the statute of limitations. This meant that, because of the failure to provide pre-suit notice, the dismissal that should have been ordered by the trial court would have been with prejudice because plaintiff could not remedy her initial procedural error by submitting a tort claim within the statute of limitations and re-filing her suit.
Third, Hanson appears to be the first published case where a plaintiff argued RCW 4.96.010 and RCW 4.96.020(4) conflicts with the CR 3(a) and thus violate the separation of powers doctrine. It is interesting that Judge Fearing, who practiced in civil litigation for over 30 years and primarily represented municipal corporations and law enforcement officers, would explicitly invite the Supreme Court to visit the question of whether RCW 4.96.020(4) violates the separation of powers doctrine. Id. at 852.