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Mollotte v. Lightfoot2/29/2000
Leo and Barbara Mollotte ask this court to reverse a summary judgment dismissal in favor of Lonny and Terry Lightfoot. The Mollottes filed a claim for damages suffered as a result of an automobile accident. The trial court dismissed the case after the statute of limitation had run. The Mollottes' initial attorney had mistakenly served the lawsuit on Mr. and Mrs. Lightfoot rather than their son Shaun Lightfoot, who was driving when the accident occurred. The Mollottes contend the Lightfoots violated CR 12(i) when, after being timely served with the lawsuit, they failed to inform the Mollottes that Shaun was the at- fault driver. We disagree and affirm.
The parties do not dispute the facts that underlie the filing of this appeal. On November 17, 1993, Mr. and Mrs. Mollotte were injured when their car was struck from behind by a vehicle driven by Shaun Lightfoot. Mrs. Mollotte was transported by ambulance to the hospital with head and back injuries and Shaun was cited for following too closely. Shaun is specifically named in the police report as the driver of the car that struck the Mollottes' automobile. Shaun's father, Lonny Lightfoot, was listed in the police report as the registered owner of the vehicle.
Within a few weeks of the accident the Mollottes retained an attorney, Stacy Lavin, to assist them with their legal claims. For approximately three years Mr. Lavin kept in contact with a series of claims adjusters representing Continental Insurance, the insurer of the vehicle Shaun was driving at the time of the accident. Just two days prior to the expiration of the statute of limitation for a personal injury action, Mr. Lavin, on behalf of the Mollottes, filed a summons and complaint for damages in Spokane County Superior Court. The defendants named in the summons and complaint were Lonny and Jane Doe Lightfoot. Mr. and Mrs. Lightfoot were served copies of the summons and complaint and a courtesy copy was provided to their insurance company. No one noticed or brought to the Mollottes' attention that Shaun's name had been omitted as a named defendant in the summons and complaint.
Nevertheless, the Lightfoots filed their answer more than three months later. They specifically denied any responsibility for the Mollottes' injuries. Their answer stated that: 'Plaintiffs' damages, if any, were proximately caused by the superseding, intervening negligence or actions of other third persons who are not party to this action.' (Emphasis added.) Further, the answer claimed that the Mollottes' claims were 'barred by failure to join an indispensable party.' Even with this information, the Mollottes did not attempt to amend their complaint to include Shaun as a defendant.
The Mollottes discharged Mr. Lavin and retained new counsel in August and September 1997. Even though represented by new counsel, the Mollottes did not request of the court leave to amend their original complaint.
Both parties made motions for summary judgment. The Mollottes' motion for partial summary judgment was on the issue of the affirmative defense of nonparty fault pursuant to CR 12(i). The Mollottes claimed that because Mr. and Mrs. Lightfoot failed to plead the defense in their answer they were precluded from raising the issue at trial. Additionally, because the Lightfoots had engaged in discovery related to the lawsuit, the Mollottes maintained that the defense should be deemed waived. The Lightfoots filed a motion for summary judgment pursuant to CR 56 contending there were no genuine issues as to any material fact and that the lawsuit should be dismissed with prejudice.
After a hearing the trial court granted the Lightfoots' motion for summary judgment dismissal an
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