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Allen v. the

January 14, 1991

BEVERLY ALLEN, AS PERSONAL REPRESENTATIVE, APPELLANT,
v.
THE STATE OF WASHINGTON, RESPONDENT



Reed, J.*fn* Worswick, C.j., concurs. Alexander, J., concurs by separate opinion.

Author: Reed

Beverly Allen appeals from an order granting the State's motion for summary judgment, which dismissed her wrongful death action because the action was filed after the statute of limitations had run. Allen contends that the "discovery rule" should have been applied to toll the statute of limitations until she discovered the essential elements of the cause of action. Assuming, without deciding, that the discovery rule applies to this case, we conclude that Allen did not diligently pursue her claim and, therefore, affirm.

Stephen Allen was shot and killed in the Yorktown Restaurant in Tacoma on December 18, 1979. The assailants' identities were not immediately known. The Pierce County Sheriff's Office contacted Beverly Allen and informed her that officers would be investigating her husband's death. For several months thereafter, Allen, who resided in Mount Vernon, maintained contact with the sheriff's office by telephone. Eventually she stopped making inquiries.

Robert Stratton and John Anderson eventually were arrested for Stephen Allen's murder. Stratton and Anderson were convicted on May 4, 1982. Allen admitted in her affidavit that she had "heard that somebody had been convicted of the murder sometime in 1982 or 1983. . . ."

During Stratton and Anderson's trial there was considerable press coverage. Stephen Allen's parents kept some of the articles published about the murder, including an article from a Mount Vernon newspaper. Those articles also contained information indicating that both Stratton and Anderson had prior convictions and that both had been released from prison on parole prior to the killings. In 1984,

Allen's son, Troy, discovered the newspaper articles while visiting his grandparents. He then sought legal advice.

In October 1985, Allen brought this wrongful death and survival action against the State, claiming that the State was negligent, was grossly negligent, and/or committed wanton and willful misconduct in releasing, managing, and supervising Stratton and Anderson. The trial court granted the State's motion for summary judgment because Allen had failed to bring her cause of action within the 3-year statute of limitations.

In reviewing the trial court's decision to grant summary judgment, this court engages in the same inquiry as the trial judge. Hontz v. State, 105 Wash. 2d 302, 311, 714 P.2d 1176 (1986). A motion for summary judgment should be granted if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c); Hontz, 105 Wash. 2d at 311.

[1] The "discovery rule" provides that a cause of action "accrues" at the time the party or, as here, the personal representative, discovered or reasonably should have discovered all of the facts establishing the essential elements of his or her cause of action, i.e., duty, breach, causation, and damages. Ohler v. Tacoma Gen. Hosp., 92 Wash. 2d 507, 511, 598 P.2d 1358 (1979). The rule has been applied to wrongful death and survival actions. White v. Johns-Manville Corp., 103 Wash. 2d 344, 353, 693 P.2d 687, 49 A.L.R.4th 955 (1985). The rule delays accrual of the cause of action only until the claimant knew or reasonably should have known of the facts necessary to establish the cause of action. It does not delay accrual until the claimant knows that she has a legal cause of action, and the claimant must exercise reasonable diligence in pursuing a legal claim. Reichelt v. Johns-Manville Corp., 107 Wash. 2d 761, 772, 733 P.2d 530 (1987). Assuming that the discovery rule applies

to this case,*fn1 Allen's cause of action accrued at the time she discovered or reasonably should have discovered that Stratton and Anderson had caused Stephen Allen's death.

[2] Allen contends that she did not discover the essential elements of her cause of action until September 27, 1985, when the attorneys consulted by her son informed her of the cause of action. However, the relevant question is when Allen reasonably should have discovered the facts establishing the essential elements of her causes of action. While the question of when a claimant reasonably should have discovered such facts is generally considered a genuine issue of material fact which would preclude the trial court from granting summary judgment, Ohler v. Tacoma Gen. Hosp., 92 Wash. 2d at 512, when reasonable minds could reach but one conclusion, ...


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