From the desk of Joshua Hayward: The Washington Court of Appeals provides insight regarding when it is proper to toll the statute of limitations against unnamed defendants in this construction site injury case.
Claims Pointer: Unnamed defendants must be identified with reasonable particularity for purposes of tolling the statute of limitations. Satisfying the reasonable particularity requirement depends on a variety of factors, but identifying the unnamed defendant’s role in the alleged injury, along with making reasonable efforts to discover their true identity, appears paramount.
Powers v. WB Mobile Services, Inc., et al., 177 Wash. App. 208, 311 P.3d 58 (2013)
Jesse Powers, an employee of Awning Solutions, suffered injuries when a handicap ramp collapsed underneath him at one of Premier Communities Inc.’s construction sites. At the time of the incident, Premier had contracted with Pacific Mobile Structure, Inc. to provide mobile structures and ramps. Pacific had then subcontracted with W.B. Mobile to install the subject handicap ramp.
After beginning installation of the ramp, Russ Williams, an owner and employee of W.B. Mobile, realized he did not have sufficient materials for the job. Williams hung caution tape and “wire tied” some boards across the ramp before leaving to obtain the necessary pieces to complete the job.
Powers had been hired by Premier to install an awning at the same site. While carrying the awning Powers stepped onto the incomplete ramp, which collapsed underneath him, causing him personal injuries.
The next morning, Williams returned to the site to complete the ramp. He noted that someone had removed the caution tape and the boards that he had “wire tied.” Williams completed the instillation without knowing that Powers had been injured.
Just days before the statute of limitations expired, Powers filed suit for his alleged injuries. Powers named Premier and Pacific as well as two “John Doe” defendants in his complaint. Powers’ complaint identified “John Doe One” as “the builder of the handicap access ramp where the incident occurred.” The second “John Doe” was identified as being “responsible for the maintenance and safety for the premises” where Powers was injured. Without Powers’ knowledge, Pacific sent Williams a copy of the complaint.
In February 2011, Powers filed an amended complaint substituting W.B. Mobile as Defendant “John Doe One.” W.B. Mobile moved to dismiss Powers’ claim under the statute of limitations. The trial court granted W.B. Mobile’s motion and Powers appealed.
In reviewing the lower court’s dismissal, the Court of Appeals relied heavily on Sidis v. Brodie/Dohrmann, Inc. for purposes of interpreting RCW 4.16.170., which governs the commencement of negligence claims. Under Sidis, serving one defendant within the 90-day period tolls the statute of limitations against all defendants. The Court of Appeals also noted that the Supreme Court in Sidis stated in dictum that, “in some cases, if identified with reasonable particularity, ‘John Doe’ defendants may be appropriately ‘named’ for purposes of RCW 4.16.170.”
The court next turned to the question of whether W.B. Mobile was identified with reasonable particularity. In Bresina v. Ace Paving Co., Inc., the Court of Appeals noted that whether a defendant has been identified with “reasonable particularity” turns on a variety of factors, including the opportunity for the plaintiff to discover and name the defendant. In Bresina, the plaintiff did not meet the requirements. The complaint in Bresina identified the defendant as “ABC CORPORATION” and referred to a prior paragraph for potential responsibilities. Since the plaintiff had three years to identify the unnamed defendant, the Bresina court concluded that the required degree of particularly was not met and the statute of limitations was not tolled.
In the instant case, however, the Washington Court of Appeals determined that Powers had described the unnamed defendant with particularity by referring to the defendant as the “builder of the handicap access ramp.” Powers had therefore identified the unnamed defendant with reasonable particularity before the statute of limitations expired. Finally, since Powers served both Premier and Pacific within 90 days of filing his complaint, the statue of limitations was tolled against W.B. Mobile.
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