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Powers v. WB Mobile Services, Inc.

Court of Appeals of Washington, Division 2

October 15, 2013

Jesse POWERS, Appellant,
v.
WB MOBILE SERVICES, INC., and John Doe Two, Respondents, and Premier Communities, Inc., a Washington Corporation; Pacific Mobile Structures, Inc., a Washington Corporation, Defendants.

Tamara Suzanne Clower, Tamara S. Clower, LLC, Cameron Taylor Riecan, Attorney at Law, Tacoma, WA, for Appellants.

Jill Haavig Stone, Melanie T. Stella, Stadium Law Group, LLC, Tacoma, WA, for Respondents.

BJORGEN, J.

[177 Wn.App. 209] ¶ 1 Jesse Powers appeals the dismissal of W.B. Mobile as a defendant in his personal injury case based on the statute of limitations. Powers argues that his claim was timely under RCW 4.16.170 and CR 15(c) because (1) he properly identified W.B. Mobile as " John Doe One" in his original complaint, (2) W.B. Mobile had actual notice of Powers's claim, and (3) Powers's service on the other defendants tolled the statute for 90 days. We hold that Powers's claim was timely brought under RCW 4.16.170 and its implementing case law, but do not reach whether his amended complaint relates back under CR 15(c). Accordingly, we reverse and remand for trial on the merits.

[177 Wn.App. 210] FACTS

I. INJURY

¶ 2 Premier Communities Inc. and Pacific Mobile Structures Inc. entered into a contract for Pacific to provide numerous mobile

Page 59

structures at Premier's residential construction sites. Premier decided to relocate one of the mobile structures, along with an accompanying handicap ramp, from one construction project to another. Unknown to Premier, Pacific subcontracted with W.B. Mobile to install the ramp after the structure was relocated. After spending a day installing the ramp, Russ Williams, the owner and sole employee of W.B. Mobile realized that he lacked sufficient materials to complete the job. Williams strung yellow caution tape around the incomplete ramp and " wire tied" some boards across the ramp. Clerk's Papers (CP) at 98. He then left the site to obtain additional ramp pieces for the project from Pacific and did not return until the next morning.

¶ 3 Premier also contracted with Awning Solutions to install an awning on the same relocated mobile structure. Awning Solutions assigned its employee, Powers, to carry out the installation. On June 2, 2006, the ramp's platform collapsed when Powers stepped forward on it while carrying an awning. Powers fell backward with the awning.

¶ 4 When Williams returned, he discovered that someone had torn off the caution tape and removed the boards he had placed across the incomplete ramp. He completed the job, and then taped and boarded the ramp up again so that no one would use it before Pacific could backfill the area. Williams did not know that Powers had been there.

II. PROCEDURE

¶ 5 Powers filed suit on May 28, 2009, five days before expiration of the three-year statute of limitations, alleging [177 Wn.App. 211] that the collapse of the handicap access ramp caused him severe, permanent, and disabling injuries. Powers identified two defendants by name, Premier and Pacific, along with two " John Doe" defendants.[1] CP at 185-86. The complaint identified " John Doe One" as:

The Defendant, JOHN DOE CONSTRUCTION COMPANY is believed to be a corporation or partnership whose true name and capacity is unknown to Plaintiff. That when the true name and capacity of JOHN DOE CONSTRUCTION is ascertained by Plaintiff, Plaintiff pray [sic] for leave to amend this complaint to so state reasons that JOHN DOE CONSTRUCTION COMPANY is believed to be the builder of the handicap access ramp where the incident occurred.

¶ 6 Unknown to Powers, Pacific sent a letter to Williams in July 2009, attaching a copy of the complaint and formally tendering Pacific's defense to W.B. Mobile. Williams forwarded the letter to W.B. Mobile's insurer, which denied the tender. Before receiving Pacific's letter, ...


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