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Wagg v. Estate of Dunham3/28/2002
Oral Argument Date: 02/12/2002
Concurring: Gerry L. Alexander, Charles Z. Smith, Charles W. Johnson, Barbara A. Madsen, Richard B. Sanders, Bobbe J. Bridge, Tom Chambers, Susan J. Owens
En Banc
Petitioner Estate of Bard Dunham seeks review of a Court of Appeals' decision affirming summary judgment dismissal of a creditor's claim against the estate and reversing summary judgment dismissal of a personal injury action covered by the decedent's liability insurance policy. We find that a personal injury suit properly commenced within the statute of limitations, and which is to be satisfied solely from insurance proceeds, is controlled by former RCW 11.40.011 (1989) and is not subject to a time limitation for the filing of a claim against the estate.
FACTS
On May 30, 1996, Bard Dunham and Greg Wagg were involved in a motor vehicle accident on Washington State Route 97. The accident caused Dunham's immediate death. Wagg survived, but claims he sustained severe personal injuries. Wagg alleges Dunham, a high school student, fell asleep while driving, crossed the center line of the road, and collided head-on with the dump truck Wagg was driving. Dunham died without a will. His vehicle was covered by an automobile liability insurance policy.
PROCEDURAL HISTORY
On February 12, 1999, pursuant to RCW 11.28.120, Wagg filed a petition for letters of administration in Okanogan County, requesting the appointment of Thomas Benner as personal representative of the estate for the sole purpose of resolving Wagg's personal injury claims. On May 7, 1999, the court opened Dunham's estate and appointed Benner as personal representative.
On May 11, 1999, Wagg filed a personal injury lawsuit against the estate in Okanogan County Superior Court. Wagg mailed a copy of the summons and complaint to Dunham's parents on May 13, 1999, along with a letter advising them that his intent was to preserve the claim against the decedent's insurance company for the May 30, 1996 collision. Wagg served the summons and complaint on Benner, the personal representative, on May 18, 1999. Service was perfected when Benner acknowledged service on June 16, 1999.
In its answer to complaint, filed on June 28, 1999, the estate asserted an affirmative defense (among others) that Wagg was precluded from proceeding with his lawsuit due to his failure to properly serve a creditor's claim. Another affirmative defense claimed the suit was barred by the statute of limitations. In apparent response, Wagg served a creditor's claim on Benner on July 2, 1999. The claim description acknowledged that the "claim is contingent upon the outcome of . . . Wagg v. Dunham," and that "{a}ny verdict would be recovered from insurance policy proceeds." Clerk's Papers at 24-25.
On September 15, 1999, the estate moved for summary judgment of dismissal of the personal injury suit. The estate argued that former RCW 11.40.080 (1994) required Wagg to file a creditor's claim before filing his lawsuit.
Because he filed the suit prior to filing a creditor's claim, the estate claimed Wagg's service of the suit on the estate was premature, the filing was void and ineffective, and therefore, the suit was barred by the statute of limitations.
On October 6, 1999, Benner filed a notice to creditors with the county clerk's office as required under RCW 11.40.020. On October 18, 1999, Wagg filed a revised creditor's claim, which amended his earlier claim to request any applicable insurance policy proceeds available.
The trial court granted the estate's summary judgment motion against Wagg on April 10, 2000. Wagg filed a motion for
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