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Gerrard v. Craig9/8/1992
Appellants Jack Craig and Immaculate Lupis appeal the trial court's summary dismissal "with prejudice" of their claim for contribution against respondent Edward Lawson and the court's subsequent denial of their motion to set aside the summary dismissal. We reverse and remand for a resolution of appellants' contribution claim.
I
This appeal arises out of a multicar accident on October 26, 1985. A car owned by appellant Craig and being driven by appellant Lupis rear-ended a car in which the plaintiff Sherry Gerrard was a passenger. With no appreciable lapse of time, respondent Lawson then rear-ended the car driven by Lupis, causing it again to strike the vehicle in which Gerrard was riding. It is undisputed that Gerrard was without fault with respect to the accident.
On October 11, 1988, Gerrard filed a complaint naming Craig, Lupis and Lawson as defendants. In their answer filed on October 25, 1988, Craig and Lupis cross-claimed against Lawson, seeking contribution. Lawson answered the cross claim on April 26, 1989. In his answer, Lawson raised the affirmative defense of insufficiency of service of process.
On August 29, 1989, Lawson filed a motion for summary judgment seeking dismissal with prejudice of all claims asserted against him. Lawson based his motion on the fact that Gerrard had not properly served him and that the statute of limitations as to her claim had run. Lawson argued that because Gerrard had never properly served him the court had never acquired jurisdiction over him and that consequently the cross claim by Craig and Lupis should also be dismissed. Lawson argued that all claims should be dismissed with prejudice because the statute of limitations had run on Gerrard's claim.
Gerrard defended against the motion for summary judgment. Her defense was limited to her own claim against
Lawson. Craig and Lupis did not file any response to the motion for summary judgment and did not appear at the hearing to oppose the motion. On September 20, 1989, the court granted summary dismissal of all claims against Lawson, with prejudice, including the cross claim for contribution. The order did not contain any finding of "no just reason for delay". See CR 54(b); RAP 2.2(d).
The litigation proceeded without Lawson. Gerrard arbitrated her claim against Craig and Lupis. On June 27, 1990, an arbitration award was entered in Gerrard's favor for the sum of $28,939.91. Appellants initially sought a trial de novo; however, on November 5, 1990, a stipulated judgment was entered in favor of Gerrard and against Craig and Lupis for the sum of $18,923.
On August 16, 1990, appellants filed a motion requesting the trial court to set aside that portion of the September 20, 1989, summary judgment order which dismissed their cross claim for contribution with prejudice. Appellants argued that they were entitled to seek contribution from Lawson. On September 4, 1990, the court entered an order denying appellants' motion.
Appellants appeal the summary "with prejudice" dismissal of their claim for contribution and the subsequent order denying their motion to set aside that portion of the summary judgment order by which their claim for contribution was dismissed with prejudice.
II
Lawson contends that the appellants have waived their right to appeal the "with prejudice" dismissal of the contribution claim by their initial failure to contest his motion for summary judgment. We disagree, for three reasons.
First, the issue falls squarely within the exception to the general waiver rule set down in New Meadows Holding Co. v.
Page 1 2 3 4 5 6 7 8 Washington Personal Injury Attorneys
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