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Bostwick v. Ballard Marine5/31/2005
Elec. Co. preempts the negligence claim that Bostwick makes here. The supreme court explained in Hiner that Graybar held 'only that a plaintiff has no cause of action for a product-related harm against a manufacturer or product seller except under the PLA because common law remedies are not available.' Nothing in the WPLA relieves one who is not a product seller from liability for negligence. Here, it is clear that Ballard Marine is not a 'product seller' under the WPLA. Graybar does not bar a negligence claim against Ballard Marine. The trial court's ruling granting summary dismissal of this claim was incorrect.
EXTRAORDINARY CIRCUMSTANCES
Finally, Ballard Marine moves to modify the ruling of a commissioner of this court denying its motion for extension of time to file its cross appeal of an order imposing costs arising from a discovery dispute. Because there are no extraordinary circumstances warranting relief, we deny the motion to modify.
On Bostwick's motion, the trial court sanctioned Ballard Marine, ordering it to pay $15,807.50 in costs for delay in producing discoverable documents. The court entered the order on November 6, 2003. Ballard Marine did not learn of the order until more than two months after entry of that order. Thus, it filed an untimely notice of cross appeal. This court directed Ballard Marine to file a motion to extend time to file, which a commissioner subsequently denied. Ballard Marine moves to modify that ruling.
Ballard Marine argues that Rap 18.8 does not apply to cross appeals and, even if it does, the trial court's failure to notify Ballard Marine of the order's entry constitutes 'extraordinary circumstances' permitting an extension. We reject these contentions. Consequently, we do not consider the merits of its cross appeal.
Extension of Time
Ballard Marine contends that the limitations of RAP 18.8 do not apply to notices of cross appeals, since cross appeals are not specifically listed in the rule. We disagree.
RAP 5.1(d) states that '{a} party seeking cross review must file a notice of appeal or a notice for discretionary review within the time allowed by rule 5.2(f).' The latter time limit for purposes of this case is 14 days after the service of the notice filed by the other party. The plain words of these rules can only support the view that one seeks 'cross review' by filing a 'notice of cross appeal.' No reasonable reading of the Rules of Appellate Procedure can support the argument that 'notice of appeal' listed in RAP 5.1(d) and 18.8 excludes a notice of cross appeal.
We reject Ballard Marine's contention that in State v. Glenn, the court of appeals held the more general provisions of RAP 18.8 apply to notices of cross appeal. This is an incorrect reading of the court's holding. In addressing the timeliness of Glenn's cross appeal, the court pointed out that it had granted his untimely motion for cross review, and that the State had failed to move for reconsideration of its decision. The opinion does not discuss why the court initially accepted the untimely petition, the issue now before us. Nothing suggests that it did so without finding the extraordinary circumstances required by RAP 18.8(b).
'Extraordinary Circumstances'
RAP 18.8 'severely restricts' this court's authority to extend the required filing time for a notice of appeal, permitting an extension 'only in extraordinary circumstances and to prevent a gross miscarriage of justice.' Ballard Marine argues that the commissioner's ruling should be reversed because its reliance on King County Local Rule 7(b)(4)(C) constitutes an extraordinary circumstance and denial of its opportunity to
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