as corrected. second correction.: January 28, 1991.
Webster, J. Grosse, C.j., and Winsor, J. Pro Tem., concur.
James Pinkerton appeals an order barring him from claiming damages in a wrongful death action brought in his son's behalf. We affirm.
In February, 1986, Pinkerton's son, Jarad, and Jarad's step-grandmother drowned. Jarad's mother, Randyl Wrenn, brought a wrongful death action individually and as the administratrix of Jarad's estate. The suit was combined with a wrongful death action on behalf of Jarad's step-grandmother.
Wrenn notified Pinkerton on July 12, 1986, that she had instituted a wrongful death action on Jarad's behalf. The notice informed Pinkerton, as required by RCW 4.24.010, that he must join the lawsuit within 20 days or his right to recover damages would be barred. The claim filed by Wrenn did not contain Pinkerton's name as a joinable party pursuant to CR 19(c).
Pinkerton served a "Notice of Appearance and Joinder of Pinkerton as Plaintiff" on Wrenn within the 20-day statutory period. The notice stated that Pinkerton was joining the action as a party plaintiff pursuant to RCW 4.24.010 and to CR 18 and 19, the joinder rules. Pinkerton filed the notice with the court on August 4, 1986, 3 days after the 20-day deadline. Pinkerton alleges that he filed the notice late because he could not obtain the cause number until then. Approximately 2 years after Pinkerton's notice had been filed, and 8 months before trial, Pinkerton's attorney learned that the notice had not been served on Spinnaker
Bay. Upon discovering this, Pinkerton's attorney immediately served Spinnaker Bay.
Pinkerton alleges that, in the same time period he served notice on Spinnaker Bay, he orally informed Spinnaker Bay of his intention to participate in the trial for the sole purpose of establishing his general damages for "loss of love and companionship" and "destruction of the parent-child relationship" under RCW 4.24.010. In support of this allegation, Pinkerton points out that his name appeared on documents served on Spinnaker Bay, and that he participated in signing stipulations. Twelve days before the trial date, Pinkerton learned of Spinnaker Bay's plan to exclude him from the trial. Consequently, he immediately served on Spinnaker Bay an "Amended Joinder of Plaintiff James Pinkerton," in which he adopted the allegations of liability made by Wrenn and prayed for general damages for loss of Jarad's love and companionship and destruction of the parent-child relationship.
On May 24, 1989, the first day of trial, Spinnaker Bay moved to bar Pinkerton from participating in the lawsuit on grounds he had not complied with RCW 4.24.010. The trial court orally granted the motion, but instructed that it would entertain a motion for reconsideration if Pinkerton submitted an affidavit and authority to support his position. The trial court indicated that, if Pinkerton were successful, his claim would be tried separately. Pinkerton submitted a "Memorandum of Authorities re Joinder" on June 1, 1989.
The trial court submitted a written opinion on June 29, 1989, affirming its initial ruling barring Pinkerton's claim. The court held that Pinkerton's notice of joinder was deficient for two reasons. First, it was not served on Spinnaker Bay within the 20-day time period, and "in fact, was not served until September 1988, over two years later." Second, the notice did not notify Spinnaker Bay of Pinkerton's claim and demand for relief. The court found that Pinkerton did not plead his claim until approximately 1 week before the trial, when Pinkerton filed his amended joinder.
The court also determined that the appearance of Mr. Malling's name as "attorney for the father" on documents served on Spinnaker Bay did not provide constructive notice of Pinkerton's claims. Moreover, the court found that Spinnaker Bay apparently did not believe Pinkerton was making a claim for damages, because it did not ...