Justia.com Opinion Summary: Central to this case is the proper interpretation of a 2006 statute of limitations and statute of repose applicable to a claim for medical malpractice. Appellant Lisa Unruh filed suit against her orthodontist, Dr. Dino Cacchiotti, alleging that his negligent treatment when she was a minor resulted in her losing her teeth and having to undergo extensive implant surgery. The Doctor successfully moved for summary judgment, contending that the statute of limitations had expired. At the Court of Appeals, the Doctor raised an alternative ground for dismissing Appellant's case based on an eight-year statute of repose. After requesting supplemental briefing, the Court of Appeals certified the case for the Supreme Court's review. After review of the applicable legal authority, the Court held that neither the statute of limitations nor the statute of repose barred Appellant's claim. The Court reversed the trial court's decision and remanded the case for further proceedings.
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
lisa unruh,
Appellant,
NO. 84707-0
v.
dino cacchiotti, d.d.s. and JANE DOE
CACCHIOTTI, husband and wife, and the
marital community composed thereof,
EN BANC
Filed July 21, 2011
Respondents.
STEPHENS, J.—This case concerns the proper interpretation of the 2006
statute of limitations and statute of repose applicable to claims for medical
malpractice.
Lisa Unruh filed a lawsuit against her orthodontist, Dr. Dino
Cacchiotti, alleging that his negligent treatment when she was a minor resulted in
her losing her teeth and undergoing extensive implant surgery. Cacchiotti moved for
summary judgment under the statute of limitations and prevailed. At the Court of
Appeals, Cacchiotti raised an alternative ground for dismissing Unruh’s claim based
on the eight-year statute of repose. After requesting supplemental briefing, the
Unruh v. Cacchiotti, D.D.S., et ux., 84707-0
Court of Appeals certified the case for our review. We reverse the trial court and
hold that neither the statute of limitations nor the statute of repose bars Unruh’s
claim.
FACTS AND PROCEDURAL HISTORY
Negligence Claim
Lisa Unruh was born on January 3, 1986. When she was nine years old,
Unruh began seeing Cacchiotti.
Unruh suffered from a severe underbite that
resulted from her lower jaw growing faster than her upper jaw. To alleviate this and
other problems, Cacchiotti began a treatment plan involving braces. Cacchiotti first
placed braces on Unruh’s upper teeth in 1995 and later added them to her lower
teeth in 1996. Cacchiotti removed the braces in August 1999. Unruh had her final
follow-up visit in November 2000.1
During Cacchiotti’s treatment of Unruh, the roots of several of her teeth were
resorbed2 when her permanent teeth erupted into the path of the roots. As a result of
the root resorption, Unruh eventually lost many of her permanent teeth and had to
have implant surgery.
Unruh’s father learned from a dentist who was treating Unruh’s stepmother
that the braces may have caused Unruh’s root resorption. According to Unruh’s
stepmother, when she asked Cacchiotti about the likely cause, he told her that some
1
Unruh received further treatment from Cacchiotti beginning in November 2002 to
prepare her mouth for jaw surgery with another doctor. Unruh does not base her
negligence claim on this later treatment.
2
“[R]esorb” means “to swallow or suck in again.” Webster’s Third New
International Dictionary 1934 (2002).
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Unruh v. Cacchiotti, D.D.S., et ux., 84707-0
people are not meant to have braces and that Unruh should not have had braces
because they were destroying her roots. Unruh’s stepmother testified that she did
not suspect Cacchiotti had done anything wrong, but instead assumed that the
braces had simply exacerbated a genetic predisposition to root resorption.
Over the next several years, a number of different doctors told Unruh that her
prior orthodontic care caused her root resorption. In March 2006, Unruh and her
stepmother met with Dr. Ronald Bryant, who presented a slide show on tooth
implants. According to Unruh’s stepmother, it was at this appointment that she
asked Bryant why Unruh’s teeth were falling out:
I said, “Why are her teeth falling out?” I said, “Was it something
hereditary?” And he said, “No, she has root reabsorption [sic].”
And I said, “What does that mean? I have no idea.” And he said, “It
is caused from braces being put on and kept on too long. This is what the
cause of root reabsorption [sic] is.” And I said, “Okay. So this wasn’t a
birth defect or” – I said – he said, “No, that was the cause of her loss of
teeth.” And I said, “Okay. Thank you.”
Clerk’s Papers at 244-45. At that point, according to Unruh’s stepmother, the
family realized for the first time that Cacchiotti may have done something wrong.
They decided to consult an attorney.
2006 Legislation
On June 7, 2006, the legislature enacted two statutes related to claims for
medical malpractice. Final B. Rep. on Second Substitute H.B. 2292, at 8, 59th
Leg., Reg. Sess. (Wash. 2006) (noting effective date of legislation).
RCW
4.16.350, which contains the statute of limitations for medical malpractice claims,
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was amended to include an eight-year statute of repose. Laws of 2006, ch. 8, §§
301-02.
The amendment was a response to DeYoung v. Providence Medical
Center, 136 Wn.2d 136, 150, 960 P.2d 919 (1998), in which this court struck down
a prior version of the medical malpractice statute of repose under the privileges and
immunities clause of article I, section 12 of the Washington State Constitution.
The legislature also amended RCW 4.16.190, the general provision that tolls
statutes of limitations for minor plaintiffs in civil actions, including cases of medical
malpractice. Gilbert v. Sacred Heart Med. Ctr., 127 Wn.2d 370, 375, 900 P.2d
552 (1995) (construing former RCW 4.16.190 (1993) to toll the statute of
limitations for minor plaintiffs in medical malpractice cases). The 2006 amendment
to RCW 4.16.190 specifically eliminated tolling for minors in medical malpractice
cases. Laws of 2006, ch. 8, § 303.
Trial Court and Court of Appeals Proceedings
After obtaining counsel, on November 16, 2006 Unruh sent Cacchiotti a 90day notice of intent to sue under former RCW 7.70.100 (2006).
Cacchiotti’s
insurance representative responded, and Unruh’s counsel and the representative
began discussing resolution of the case. Unruh turned 21 on January 3, 2007. A
few days later, on January 12, Unruh’s counsel sent a letter to Cacchiotti’s
insurance representative requesting mediation under RCW 7.70.110. The insurance
representative responded by letter stating, “You have requested mediation based on
RCW 7.70.100, and, therefore, we agree that the statute of limitations is tolled for
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Unruh v. Cacchiotti, D.D.S., et ux., 84707-0
one year by RCW 7.70.110.” CP at 318. The parties agreed to mediate the dispute
and set a date for September 2007. Before the parties could meet, Cacchiotti
backed out of the mediation. Unruh filed her negligence lawsuit on September 27,
2007.
Cacchiotti moved for summary judgment based on the statute of limitations,
RCW 4.16.350(3).3
The trial court granted summary judgment to Cacchiotti,
finding no genuine issue of material fact and that the statute of limitations had
expired. CP at 345-49. Unruh appealed.
At the Court of Appeals, Unruh initially focused her argument on the statute
of limitations’ one-year discovery period.
She argued she did not discover
Cacchiotti’s breach of duty until the March 2006 visit with Bryant.
She
acknowledged discovering before that time that the braces caused her root
resorption, but she believed her injury resulted from a combination of her braces and
a genetic predisposition to root resorption, not her braces and Cacchiotti’s
negligence. Until the notion of a genetic predisposition was dispelled by Bryant,
Unruh did not suspect Cacchiotti had done anything wrong.
In his response, Cacchiotti argued that the three-year limitations period
expired before Unruh filed suit in September 2007. He also argued that Unruh’s
3
RCW 4.16.350(3) states that an action
based upon alleged professional negligence shall be commenced within
three years of the act or omission alleged to have caused the injury or
condition, or one year of the time the patient or his representative
discovered or reasonably should have discovered that the injury or
condition was caused by said act or omission, whichever period expires
later . . . .
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Unruh v. Cacchiotti, D.D.S., et ux., 84707-0
claim was not saved by the discovery rule because she learned about her cause of
action more than one year before filing the lawsuit. Alternatively, Cacchiotti argued
that, even assuming Unruh did not discover her claim until the March 2006 visit
with Bryant, the claim was still untimely because the request for mediation under
RCW 7.70.110 was defective and thus did not toll the limitations period.4
In
another alternative argument, Cacchiotti contended that, even assuming the request
for mediation effectively tolled the one-year discovery period, the lawsuit was still
untimely under the newly reenacted eight-year statute of repose.
The Court of Appeals requested supplemental briefing from both parties on
the effect of the statute of repose on this court’s decision in DeYoung. The court
also requested briefing regarding the effect of the 2006 nontolling amendment to
RCW 4.16.190 on this court’s decision in Gilbert. In her supplemental brief, Unruh
raised constitutional challenges to the 2006 legislation, though she asserted that the
case could be resolved on statutory grounds.5 The Court of Appeals certified the
case to this court, and we retained it for direct review.
The parties’ briefing provides varying time lines of the events in this case.
The following dates are relevant:
Aug. 1999
4
Without being tolled by RCW 7.70.110, the one-year discovery period would
have expired in March 2007, approximately six months before Unruh filed her lawsuit.
5
Several organizations filed amicus briefs addressing the constitutional questions.
They include: Washington State Medical Association, American Medical Association,
and Physicians Insurance A Mutual Company (WSMA et al.); Washington State
Association for Justice Foundation; and Washington Defense Trial Lawyers.
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Cacchiotti removes Unruh’s braces
Nov. 2000
Unruh’s final visit with Cacchiotti
Jan. 3, 2004
Unruh turns 18
June 7, 2006
Legislature (1) reenacts the eight-year
medical malpractice statute of repose
and (2) amends RCW 4.16.190 to
eliminate tolling for minors in medical
malpractice cases
Nov. 16, 2006
Unruh serves 90-day notice of intent to
sue
Jan. 3, 2007
Unruh turns 21
Jan. 12, 2007
Unruh sends request for mediation
Sept. 27, 2007
Unruh files lawsuit
ANALYSIS
The sole question in this case is whether Unruh’s claim for medical
malpractice was timely filed. This question breaks down into two parts. First, did
Unruh file her claim within the statute of limitations? Second, is Unruh’s claim
barred by the statute of repose? Because Cacchiotti initially argues that Unruh’s
claim is barred by the statute of limitations, we turn first to that issue. We review de
novo an order granting summary judgment. Ranger Ins. Co. v. Pierce County, 164
Wn.2d 545, 552, 192 P.3d 886 (2008).
I.
Timeliness of Unruh’s Claim under the Statute of Limitations
The statute of limitations for medical malpractice claims consists of two
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limitations periods: a three-year period and a one-year discovery period. RCW
4.16.350(3). Cacchiotti argues that Unruh filed her claim more than three years
after the last alleged act or omission, three years after Unruh’s 18th birthday, and
one year after Unruh discovered she had a cause of action. At the Court of Appeals,
Unruh’s opening brief focused on application of the discovery rule rather than the
three-year limitations period. There is no need to consider the discovery rule,
however, if Unruh’s claim is timely under the three-year statute of limitations. So,
our analysis begins there.
The three-year limitations period commences at the time of the last act or
omission that allegedly caused the injury. See Caughell v. Group Health Coop. of
Puget Sound, 124 Wn.2d 217, 229, 237 n.6, 876 P.2d 898 (1994). In this case, the
alleged negligence began in 1995 when Cacchiotti applied braces to Unruh’s teeth,
and it continued until at least August 1999 when the braces were removed.
Although Unruh continued seeing Cacchiotti until November 2000, the alleged
negligence appears to have ceased in August 1999 with the removal of the braces.
We will assume for purposes of analysis that the limitations period was triggered in
August 1999.6
6
At the trial court, Cacchiotti maintained that the allegedly negligent conduct
continued until November 2000, when Unruh had her last appointment with Cacchiotti.
CP at 32. At the Court of Appeals, Cacchiotti altered this time line to say the allegedly
negligent conduct ceased in August 1999, when Cacchiotti removed Unruh’s braces.
Resp’ts’ Br. at 4. It makes no difference to our analysis of the statute of limitations.
However, if the effective date is November 2000, then even under Cacchiotti’s statutory
argument, the eight-year statute of repose would not bar Unruh’s claim, as the repose
period would not have expired until November 2008.
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Although the three-year limitations period began running in August 1999, it
was immediately tolled due to Unruh’s minority. The tolling statute in effect at the
time, former RCW 4.16.190, tolled the statute of limitations for minors in medical
malpractice cases. Gilbert, 127 Wn.2d at 375. Unruh turned 18 on January 3,
2004, and the three-year limitations period began running on that date.
On November 16, 2006, Unruh served Cacchiotti with a 90-day notice of
intent to sue, which extended the time for filing the lawsuit for 90 days. Former
RCW 7.70.100(1).7 On January 12, 2007, within the 90-day window, Unruh made
a request for mediation under RCW 7.70.110, which tolled the three-year limitations
period for an additional year. On September 27, 2007, within the one-year tolling
window, Unruh filed her claim. The lawsuit was therefore timely under the threeyear limitations period.
Cacchiotti takes issue with every step of this analysis. First, he argues that
the 2006 nontolling amendment to RCW 4.16.190 eliminated the effect that Unruh’s
minority had on tolling the statute of limitations. Second, Cacchiotti argues that,
even if the statute of limitations was tolled during Unruh’s minority, the 90-day
notice of intent to sue did not bridge the gap between the time when the three-year
limitations period would have expired (January 3, 2007) and when she sent her
request for mediation (January 12, 2007). Third, he argues that, even if the statute
7
The provision of former RCW 7.70.100 requiring a 90-day notice of intent to sue
was recently invalidated by this court based on separation of powers. Waples v. Yi, 169
Wn.2d 152, 158-61, 234 P.3d 187 (2010). It was a statutory requirement at the time
Unruh served her notice.
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Unruh v. Cacchiotti, D.D.S., et ux., 84707-0
of limitations was tolled until Unruh sent her request for mediation, the request itself
did not toll the limitations period for an additional year because it was defective.
None of Cacchiotti’s points is winning.
A. Prospective Effect of the 2006 Nontolling Amendment to RCW
4.16.190
On June 7, 2006, the legislature amended RCW 4.16.190 to eliminate tolling
for minors in medical malpractice cases. Laws of 2006, ch. 8, § 303. At that time,
Unruh was no longer a minor. Cacchiotti nonetheless argues that the amendment
applies retroactively to eliminate tolling during Unruh’s minority.8 We disagree.
A statute that imposes a new limitations period is presumed to run
prospectively, unless the legislature intends otherwise. 1000 Virginia Ltd. P’ship, v.
Vertecs Corp., 158 Wn.2d 566, 584, 146 P.3d 423 (2006). Thus, when a claim
accrues before the statute goes into effect, the new limitations period begins to run
on that claim from the effective date of the statute’s enactment. Hanford v. King
County, 112 Wash. 659, 662, 192 P. 1013 (1920) (“[T]he limitation of the new
statute, as applied to pre-existing causes of action, commences when the cause of
action is first subjected to the operation of the statute . . . .”); Merrigan v. Epstein,
112 Wn.2d 709, 717, 773 P.2d 78 (1989) (“‘[T]he new limitations law operates . . .
on causes of action which accrued prior to the change in law, but the new period of
8
Cacchiotti does not actually use the term “retroactive.” He says the nontolling
amendment (and the statute of repose) applies prospectively. Resp’ts’ Suppl. Br. at 7-9.
It is clear, however, that in substance he means the applicable statutes apply retroactively
in that they began operating on Unruh’s claim in August 1999, seven years prior to their
enactment. Id. at 10, 17.
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limitation starts to run from the effective date of the statute which makes the
change.’” (emphasis omitted) (quoting Lewis H. Orland & David G. Stebing,
Retroactivity in Review: The Federal and Washington Approaches, 16 Gonzaga L.
Rev. 855, 882 (1981))); Torkelson v. Roerick, 24 Wn. App. 877, 879, 604 P.2d
1310 (1979) (“[A] new statutory limitation may operate on a claim that has accrued
prior to the amendment of the statute of limitation by beginning to run as of the
effective date of the amended statute.”). “‘Th[is] same principle has been applied to
tolling statutes.’” Merrigan, 112 Wn.2d at 717 (quoting Orland & Stebing, supra,
at 882).
Our analysis in Hanford is illustrative. Hanford suffered injuries on March 1,
1919 when he was struck by a vehicle owned and operated by King County.
Hanford, 112 Wash. at 659-60. On June 11, 1919, the legislature enacted a new
law requiring plaintiffs to present claims of damages to the board of county
commissioners within 60 days of the claim accruing. Id. at 660-61. If the claim was
not timely presented, the plaintiff could not file a lawsuit. Id. at 661. Hanford did
not properly present his claim to the King County board of commissioners until June
28, almost 120 days after his claim had accrued. Id. at 660. Still, we rejected the
argument that Hanford was barred from pursuing his claim. Id. at 662. We held
that the new statute applied to Hanford’s claim prospectively and that the 60-day
period was not triggered until the date of the statute’s enactment, June 11, 1919. Id.
In other words, Hanford “had sixty days after the statute went into effect in which to
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file a claim.” Id.
The same rule was applied to a new tolling provision in Torkelson. 24 Wn.
App. at 879.
Torkelson turned 18 in October 1970 and was injured in an
automobile accident a few months later. Id. at 878. At the time of the accident,
RCW 4.16.190 tolled the statute of limitations until a plaintiff reached the age of 21.
Id. But in August 1971, the legislature amended RCW 4.16.190 to eliminate tolling
after the age of 18. Id. at 878-79. The court held that the new tolling provision
applied to Torkelson’s claim prospectively. Id. at 880. Even though Torkelson
turned 18 back in October 1970 and was injured shortly thereafter, the court held
that the amended statute’s elimination of tolling did not operate on her claim until
the date of enactment, i.e., August 1971. Id. Torkelson therefore received the full
three years from August 1971 to file her claim under the statute of limitations. Id.
The application of this rule to the present case is straightforward. Unruh’s
claim accrued in August 1999 when Cacchiotti removed her braces, but former
RCW 4.16.190 immediately tolled the statute of limitations because Unruh was a
minor. On January 3, 2004, Unruh turned 18 and the three-year limitations period
began to run.
Though the legislature eliminated tolling for minors in medical
malpractice cases in 2006, the amendment operates on Unruh’s claim only from the
date of enactment. The amendment cannot reach back in time to eliminate the effect
of Unruh’s minority in tolling the statute of limitations between August 1999 and the
time she turned 18 in January 2004. Because Unruh was already an adult by the
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time the legislature eliminated tolling for minors in 2006, the nontolling amendment
simply has no effect on her claim.
Cacchiotti does not cite any evidence of legislative intent indicating that the
nontolling amendment to RCW 4.16.190 should apply retroactively, particularly
when the effect would be to undo what was already accomplished under the former
law. We hold that the nontolling amendment to RCW 4.16.190 applies from the
date of its enactment and does not eliminate tolling during Unruh’s minority.9
B. Tolling of the Statute of Limitations by 90-Day Notice of Intent to
Sue
Under former RCW 7.10.100, Unruh was required to serve Cacchiotti with a
90-day notice of intent to sue before filing her lawsuit. The statute is clear that
service of the notice of intent to sue extends the time for commencing the action: “If
the notice is served within ninety days of the expiration of the applicable statute of
limitations, the time for the commencement of the action must be extended ninety
days from the service of the notice.” Former RCW 7.70.100(1).
Unruh served Cacchiotti with the 90-day notice of intent to sue on November
16, 2006. The three-year limitations period was set to expire on January 3, 2007,
9
Because we hold that the 2006 nontolling amendment to RCW 4.16.190 does not
eliminate tolling during Unruh’s minority, we need not reach her alternative arguments
that the amendment violates the constitutional right of access to courts as well as the
privileges and immunities clause of article I, section 12. While we do not decide this
case on constitutional grounds, in Gilbert we indicated that the categorical elimination of
tolling for minors would give rise to “compelling” constitutional challenges. 127 Wn.2d
at 378.
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less than three months later. Accordingly, service of the notice of intent to sue
tolled the statute of limitations for 90 days from the date of service, or until the
middle of February 2007.
At oral argument before this court, Cacchiotti asserted that the notice of intent
to sue did not toll the statute of limitations because it would require us to “stack”
separate tolling provisions. In Cacchiotti’s view, the statute of limitations cannot be
tolled by both the notice of intent to sue and the later request for mediation. We
reject this novel and unsupported proposition.
The statute of limitations for medical malpractice cases in RCW 4.16.350(3)
contains no prohibition against tolling by one or more separate statutory provisions.
Had the legislature intended such a restriction, it could have included one. See, e.g.,
RCW 11.40.051(2) (prescribing limitations period for claims against a decedent and
noting that “[a]n otherwise applicable statute of limitations applies without regard
to the tolling provisions of RCW 4.16.190” (emphasis added)). Moreover, neither
the statute governing notice of intent to sue, former RCW 7.70.100, nor the statute
governing request for mediation, RCW 7.70.110, purports to serve as the exclusive
tolling provision for medical malpractice cases. Restricting tolling to only one of
these statutes would ignore the sound policy that underlies application of other
applicable tolling provisions. Unruh’s notice of intent to sue under former RCW
7.70.100 tolled the statute of limitations for 90 days.
C. Tolling of the Statute of Limitations by the Request for Mediation
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Even though the statute of limitations was tolled due to Unruh’s minority and
her 90-day notice of intent to sue, she still needs the tolling provided by her request
for mediation in order for her action to be timely.10 Cacchiotti does not dispute that,
as a general proposition, a request for mediation under RCW 7.70.110 tolls the
statute of limitations for one year. He argues, however, that Unruh’s request was
defective because she served it on his insurance representative rather than on him
personally. This argument requires us to interpret RCW 7.70.110 to decide whether
a request for mediation can toll the statute of limitations when it is not served
directly on the defendant.
In any question of statutory construction, we strive to ascertain the intention
of the legislature by first examining a statute’s plain meaning. Dep’t of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). If the statute’s
meaning is plain on its face, then we give effect to that meaning as an expression of
legislative intent. Id. “Plain meaning is discerned from the ordinary meaning of the
language at issue, the context of the statute in which that provision is found, related
provisions, and the statutory scheme as a whole.” Christensen v. Ellsworth, 162
Wn.2d 365, 373, 173 P.3d 228 (2007) (citing Campbell & Gwinn, 146 Wn.2d at 912).
RCW 7.70.110 states in its entirety:
The making of a written, good faith request for mediation of a dispute
10
Unruh’s minority and the 90-day notice of intent to sue tolled the statute of
limitations only until the middle of February 2007, and Unruh filed her lawsuit in
September 2007.
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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.
Cacchiotti argues that it would be unreasonable to interpret RCW 7.70.110 to
permit a request for mediation on anyone other than the defendant. Unruh counters
that, because the statute does not specify to whom a request must be made, it is
reasonable to interpret RCW 7.70.110 to allow a request on the defendant or the
defendant’s authorized agent.
The unstated but apparent purpose of RCW 7.70.110 is to facilitate
settlement of disputes through mediation. Implicit in this purpose is the notion that
the defendant receives notice of the request for mediation. Nothing in the plain
language of the statute restricts the method of giving notice to personally serving a
request for mediation on the prospective defendant. Cacchiotti’s argument thus
requires us to stray from settled principles of statutory construction and read into
RCW 7.70.110 a limiting requirement that is not present. Cf. Rest. Dev., Inc. v.
Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003) (noting that we will not
“add words where the legislature has chosen not to include them”).
We construe RCW 7.70.110 to toll the statute of limitations when a request
for mediation is made on the defendant or the defendant’s authorized agent. Under
this interpretation, the defendant will receive notice that the plaintiff has requested
mediation under RCW 7.70.110 and will have an opportunity to assent to the
request. This reading of RCW 7.70.110 is also consistent with the procedural
informality of the statute. Unlike its companion provision, former RCW 7.70.100,
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which outlined specific procedures for serving the 90-day notice of intent to sue,
RCW 7.70.110 does not contain detailed service procedures. It requires only that
the request for mediation be “written” and be made in “good faith.”
RCW
7.70.110.
Cacchiotti contends that, even if a request served on a defendant’s agent is
proper under the statute, no agency relationship existed here. Whether an agency
relationship exists is generally a question of fact for the jury. O’Brien v. Hafer, 122
Wn. App. 279, 281, 93 P.3d 930 (2004).
But the record convinces us that
Cacchiotti’s insurance representative took responsibility for the defense of the suit
from the very beginning. Unruh initially directed her correspondence to Cacchiotti
by serving him with the 90-day notice of intent to sue under former RCW 7.70.100.
Shortly after, Cacchiotti’s insurance representative contacted Unruh’s counsel
purporting to act on Cacchiotti’s behalf, and they began discussing resolution of the
case.11 Unruh’s counsel followed up on their discussions by directing a letter to the
representative and requesting mediation under RCW 7.70.110.
The insurance
representative then responded by letter stating, “You have requested mediation
based on RCW 7.70.100 and, therefore, we agree that the statute of limitations is
tolled for one year by RCW 7.70.110.” CP at 318 (emphasis added). The parties
later agreed to a mediation date, but Cacchiotti ultimately decided not to mediate.
Unruh persuasively argues that the only reasonable conclusion, based on the
11
Notably, Cacchiotti does not question the representative’s authority to act on his
behalf in responding to the notice of intent to sue.
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course of correspondence and Cacchiotti’s assent to the mediation, is that the
insurance representative was acting as Cacchiotti’s agent. Cacchiotti counters that
authority to act as an agent cannot be inferred from the acts of the insurance
representative alone. But, Cacchiotti’s argument would essentially require Unruh to
prove what only Cacchiotti knows—whether the agent who initially responded to
Unruh’s notice of intent to sue was actually representing Cacchiotti. We reject
Cacchiotti’s attempt to undermine the agency relationship between him and the
insurer responsible for providing his defense. Unruh’s request for mediation tolled
the statute of limitations for one year, and her filing of the lawsuit in September
2007 was therefore timely.12
II.
Timeliness of Unruh’s Claim under the Statute of Repose
Cacchiotti argues that, even if Unruh filed her claim within the statute of
limitations, it is barred by the statute of repose. RCW 4.16.350(3) sets a maximum
eight-year period for filing a medical malpractice lawsuit. The statute provides that
“in no event shall an action be commenced more than eight years after [the] act or
omission.” RCW 4.16.350(3).
In DeYoung, this court struck down a prior iteration of the medical
malpractice statute of repose, holding that it violated the privileges and immunities
clause of article I, section 12 of the Washington State Constitution. DeYoung, 136
12
Because Unruh’s claim was timely under the three-year limitations period, we
need not address the arguments raised under the one-year discovery period with regard to
whether there are genuine issues of material fact concerning when Unruh or her parents
knew she had a cause of action.
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Unruh v. Cacchiotti, D.D.S., et ux., 84707-0
Wn.2d at 150. The legislature reenacted the statute on June 7, 2006. Laws of 2006,
ch. 8, §§ 301-02.
Cacchiotti argues that the statute of repose applies “retroactively” to Unruh’s
claim such that the eight-year period began running in August 1999, on the last date
of the alleged act or omission.13
In Cacchiotti’s view, then, the statute of repose
expired in August 2007, one month before Unruh commenced her lawsuit. Unruh
responds that the statute of repose began running on the date it was enacted, June 7,
2006, which means the repose period does not expire until June 2014.
As explained previously, when a claim accrues before a new statute of
limitations goes into effect, the new limitations period begins to run on that claim
from the effective date of the statute’s enactment. Hanford, 112 Wash. at 662.
This rule applies equally to statutes of limitation and statutes of repose. See 1000
Virginia Ltd. P’ship, 158 Wn.2d at 583-84 (“Regardless of how the statute is
characterized [i.e., as a statute of limitation or a statute of repose], it is presumed to
run prospectively, as are all statutes.”). Running the new limitations period from the
date of enactment ensures that “the full time allowed by the new statute is available
to the [plaintiff].” Hanford, 112 Wash. at 662.14
13
As discussed supra note 8, Cacchiotti does not characterize his argument in
terms of “retroactivity,” although his position is that the statute of repose began operating
seven years prior to its enactment.
14
The three-year limitations period and the one-year discovery period under RCW
4.16.350(3) do not run from the date of the 2006 legislation because those limitations
periods are not new. Unlike the nontolling provision of RCW 4.16.190 and the repose
provision of RCW 4.16.350(3), the three-year and one-year limitations periods were in
effect long before Unruh’s claim accrued.
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Unruh v. Cacchiotti, D.D.S., et ux., 84707-0
We assume Unruh’s claim accrued with the removal of her braces in August
1999. At that time, no statute of repose existed, as this court’s 1998 decision in
DeYoung struck down the prior version of the statute of repose.
While the
legislature reenacted the statute of repose in June 2006, we cannot agree with
Cacchiotti that the new repose period began running seven years before the statute
was enacted. Rather, the statute of repose applies to Unruh’s claim prospectively
from the date of its enactment on June 7, 2006, meaning the eight-year repose
period began running on that date. Because the repose period will not expire until
June 2014, the newly reenacted statute of repose does not bar Unruh’s claim.
Amicus WSMA et al. contends that the general rule of prospective
application should not govern here because the legislature intended the statute of
repose to apply retroactively. WSMA et al. relies on a statement of legislative
intent contained in the 2006 reenactment to the statute of repose: “The legislature
. . . intends that the eight-year statute of repose reenacted by section 302 of this act
be applied to actions commenced on or after [June 7, 2006].” Laws of 2006, ch. 8,
§ 301.
Though no other evidence of legislative intent is provided, WSMA et al.
believes that this statement alone indicates clear intent that the statute of repose
apply retroactively.
A limitations provision will not be given retroactive effect “unless it appears
that such was clearly the legislative intention.” Hanford, 112 Wash. at 661
(emphasis added); see also Densley v. Dep’t of Ret. Sys., 162 Wn.2d 210, 223, 173
-20-
Unruh v. Cacchiotti, D.D.S., et ux., 84707-0
P.3d 885 (2007) (recognizing that the presumption of prospective application “can
only ‘be overcome if [] the Legislature explicitly provides for retroactivity’”
(quoting State v. T.K., 139 Wn.2d 320, 329, 987 P.2d 63 (1999))). The legislative
statement here does not evince a clear intent that the statute of repose apply
retroactively. The quoted statement indicates that the statute of repose should apply
“to actions commenced on or after [June 7, 2006],” but it does not specify whether
the statute should apply prospectively or retroactively to such actions. Laws of
2006, ch. 8, § 301. At best, the statement is ambiguous. Under the general rule
discussed above, we presume the new limitations period applies prospectively. And
if the claim accrued before the date of enactment, the limitations period begins to
run from the date of enactment. The legislature’s ambiguous statement of intent
with regard to the newly reenacted statute of repose is not enough to overcome this
presumption.
Even if we agreed with Cacchiotti that the statute of repose began to run in
August 1999, Unruh’s claim would still survive. Under former RCW 4.16.190, a
statute of repose is tolled during a plaintiff’s minority. Gilbert, 127 Wn.2d at 376
(citing Merrigan, 112 Wn.2d at 716). Because the 2006 nontolling amendment has
no effect on the tolling that occurred during Unruh’s minority, the statute of repose
could not begin to run until Unruh turned 18 on January 3, 2004. Thus, even under
Cacchiotti’s theory, the earliest the repose period could expire on Unruh’s claim is
January 2012.15
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Unruh v. Cacchiotti, D.D.S., et ux., 84707-0
CONCLUSION
Unruh timely filed her claim within the statute of limitations. The 2006
nontolling amendment to RCW 4.16.190 does not eliminate tolling during Unruh’s
minority. Unruh’s notice of intent to sue and request for mediation effectively tolled
the statute of limitations until she filed her lawsuit in September 2007.
Nor is Unruh’s claim barred by the statute of repose. The statute of repose
applies prospectively from the date of its enactment in 2006, meaning the eight-year
period began running on that date. Even if the statute of repose began to run when
Unruh’s claim accrued in August 1999, Unruh’s status as a minor immediately
tolled the repose period under former RCW 4.16.190. We reverse the trial court’s
order of summary judgment and remand for further proceedings consistent with this
opinion.
AUTHOR:
Justice Debra L. Stephens
WE CONCUR:
Chief Justice Barbara A. Madsen
Justice Mary E. Fairhurst
Justice Charles W. Johnson
Justice James M. Johnson
Justice Gerry L. Alexander
15
Because we hold that the statute of repose does not bar Unruh’s claim, we need
not reach Unruh’s alternative arguments that the statute of repose violates the separation
of powers doctrine and the privileges and immunities clause of article I, section 12.
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Unruh v. Cacchiotti, D.D.S., et ux., 84707-0
Justice Tom Chambers
Justice Charles K. Wiggins
Justice Susan Owens
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