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Bowen v. Corporate Property Investors

April 21, 1997

STEVE BOWEN AND JADA BOWEN, HUSBAND AND WIFE, AND THE MARITAL COMMUNITY FORMED THEREOF, APPELLANTS,
v.
CORPORATE PROPERTY INVESTORS, A CORPORATION; RESPONDENT, MERLINO CONSTRUCTION COMPANY, A CORPORATION; PIVETTA BROS. CONSTRUCTION CO., A CORPORATION; DEFENDANTS, W & H PACIFIC, INC., A WASHINGTON CORPORATION; CITY OF KENT, A WASHINGTON MUNICIPALITY; RESPONDENTS, AND JOHN DOE COMPANIES, 1-5, DEFENDANTS.



Appeal from Superior Court of King County. Docket No: 94-2-02334-9. Date filed: 04/21/95. Judge signing: Hon. Peter Jarvis.

Authored by Ronald E. Cox. Concurring: Faye C. Kennedy, Mary K. Becker.

The opinion of the court was delivered by: Cox

COX, J. -- Steve Bowen suffered severe injuries when a truck struck the aerial bucket in which he was working. At a Clark *fn1 hearing, the trial court determined that the percentage of negligence of Bowen's employer exceeded that of the driver and owner of the truck that struck him. Accordingly, the statutory lien of the Department of Labor and Industries (DLI) against the proceeds of a settlement fund offered by the owner of the truck was discharged.

Bowen and his wife, Jada, later commenced this action for personal injury. They appeal three summary judgment orders that were entered, respectively, in favor of Corporate Property Investors (CPI), W & H Pacific, Inc., and the City of Kent. A basis for all three orders was that the Bowens' claims were collaterally estopped by the decisions at the Clark hearing. Because those decisions did not preclude the Bowens' claims here and collateral estoppel was the sole basis for CPI's motion, we reverse that summary judgment order. We affirm summary judgment for the City because the Bowens failed to comply with the notice of claims statute and the statute of limitations ran. Because the statute of limitations barred the Bowens' claim against W & H and the claim did not relate back, we also affirm the summary judgment order dismissing that claim.

CPI was the developer of a new Howard Johnson Amerisuite Hotel. CPI hired Unocorp, Bowen's employer, to improve the intersection in front of the hotel and install a traffic signal. It also hired W & H, an engineering firm, to design the project. The City of Kent was to assume ownership of the intersection and traffic signal improvements upon completion of the project. Therefore, the City monitored and inspected the project.

On January 28, 1991, Bowen was adjusting traffic signals from an aerial bucket mounted on a truck at the intersection in front of the hotel. The truck was parked in the eastbound left turn lane of the street. Traffic cones were placed to the front and rear of the truck. But Bowen's coworker failed to block any other lanes of traffic. Bowen was operating the boom that supported the bucket from which he was working. In the course of adjusting the traffic signals, he extended the bucket over a portion of the inside westbound lane of the street. A truck traveling in that lane struck the bucket, dislodging it from the boom. Bowen fell and struck one of the outriggers of the boom truck.

He suffered a severe brain injury and was in a coma for nine days. His doctor states that he is no longer employable and that his cognitive impairment makes him functionally disabled. Bowen also suffers from a memory deficit.

After the accident, Bowen received worker's compensation benefits from DLI. Approximately seven months after the accident, the Bowens commenced an action for damages against the trucker who hit the bucket and the trucker's employer. The trucking company offered to settle the suit.

The Bowens moved to allocate fault between his employer and the trucking company in order to extinguish DLI's lien against the settlement fund. They also sought approval to settle with the trucking company.

DLI opposed the motion. It sought a hearing to allocate fault among all potentially at-fault entities under Clark. *fn2 Because little discovery had occurred and the trucking company had not answered the complaint before offering to settle, DLI argued that the action was not ripe for such a determination of fault. DLI further claimed that because settlement was already pending, no fair hearing on the issue of fault was possible.

In January 1992, the trial court entered findings of fact and Conclusions of law that apportioned fault as follows: Bowen, 55 percent; Bowen's employer, 30 percent; and the trucking company and driver, 15 percent. Because the employer's percentage of fault was greater than that of the trucking company, the trial court extinguished DLI's lien. *fn3 The court also approved the settlement. DLI appealed the order extinguishing its lien, but dismissed the appeal when the Bowens assigned to DLI their right to sue other potentially at-fault parties.

In December 1993, almost three years after Bowen's accident, his counsel contacted DLI and learned that it had not pursued anyone on the basis of the Bowens' assignment. Counsel then hired a private investigator. He contacted the City and requested all documents relating to the project. In late January 1994, the investigator received documents from the City identifying CPI as the developer. The documents also identified two other companies as contractors on projects identified as the "Howard Johnson Amerisuite Hotel" and the "LID 328 West Valley Improvements from S. 212th St. to S. 188th St."

On January 25, 1994, three days before the statute of limitations on their claims was to run, the Bowens commenced this action naming as defendants CPI, the two construction companies, and five John Doe companies. Over three months later, in response to a discovery request to CPI, the Bowens received the contract between CPI and Unocorp for the project on which Bowen worked. That contract identified W & H as the engineer and indicated the City's involvement in the project. In May 1994, the Bowens filed an amended complaint adding W & H and the City as defendants.

CPI moved for summary judgment, claiming that the apportionment of 100 percent of fault for the accident at the Clark hearing in the other action collaterally estopped them from asserting their claims against CPI in this action. The trial court agreed and granted summary judgment. The City and W & H then moved for summary judgment, also arguing collateral estoppel. In addition, they raised other defenses. The trial court granted both motions. The Bowens appeal.

I

Standard of Review

When we review an order granting summary judgment, we make the same inquiry as the trial court. *fn4 We consider all facts and reasonable inferences from the facts in the light most favorable to the nonmoving party. *fn5 We review de novo questions of law. *fn6 CR 56(c) permits the trial court to grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A material fact is one upon which the outcome of the litigation depends. *fn7 Summary judgment is not proper if reasonable minds could draw different Conclusions from undisputed facts or if all of the facts necessary to determine the issues are not present. *fn8 The moving party has the burden of proving that summary judgment is appropriate, but the nonmoving party "'may not rely on speculation [or] argumentative assertions that unresolved factual issues remain . . . .'" *fn9

II

Collateral Estoppel

CPI, the City, and W & H each relied on collateral estoppel as a basis for summary judgment. We hold that collateral estoppel does not bar litigation against any of these parties.

The doctrine of collateral estoppel bars relitigation of an issue on which a party "has had a full and fair ...


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