Pt I – A Brief History of the Fight for Accident Reports

Plaintiffs in Guillen and Whitmer brought suit against Pierce County for unsafe county roads. Dick Benedetti of Davies Pearson and I represented the Whitmer sisters whose VW Beetle was struck and knocked into a utility pole at an unsignalized intersection. The Guillen family sued Pierce County for the death of Clementina Guillen-Alejandre, which they contended was caused in part by a dangerous county road.

In our separate actions, the Guillen* and Whitmer** Plaintiffs sought an accident history for our respective accident locations. In both cases, Pierce County refused to produce the requested accident reports that had been collected by the Sheriff’s Office, relying on its own interpretation of 23 U.S.C. § 409.

Division II of the Court of Appeals held that the accident reports should be produced. The Washington Supreme Court agreed, going so far as to hold that a portion of § 409 was unconstitutional. Pierce County petitioned the United States Supreme Court for review.

So, in Pierce County v. Guillen, 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003), the U.S. Supreme Court addressed the extent to which the privilege created by § 409 applies to accident reports. Defendant Pierce County argued that, under § 409, virtually everything in its possession was privileged and need not be produced. The Guillen Plaintiffs contended that § 409 protected only materials created by an agency in the process of applying for federal funding. The U.S. Solicitor General took a middle position that §409 protected data actually compiled or collected just for purposes of hazard elimination, but should not protect information that was originally compiled or collected for purposes unrelated to a specific hazard elimination project.

The U.S. Supreme Court adopted the Solicitor General’s position, observing that the police traffic collision reports and accident history being sought by the Plaintiffs were collected by the Pierce County Sheriff’s Office, rather than the Public Works Department. It held that the police reports therefore were not covered by the § 409 privilege, even though the Pierce County Public Works Department subsequently analyzed the same police reports for highway improvement projects:

The United States, as intervenor, proposes a third interpretation: § 409 protects all reports, surveys, schedules, lists, or data actually compiled or collected for § 152 purposes, but does not protect information that was originally compiled or collected for purposes unrelated to § 152 and that is currently held by the agencies that compiled or collected it, even if the information was at some point “collected” by anotheragency for § 52 purposes…. Under this interpretation, an accident report collected only for law enforcement purposes and held by the county sheriff would not be protected under § 409 in the hands of the county sheriff, even though that same report would be protected in the hands of the Public Works Department, so long as the department first obtained the report for § 152 purposes. We agree with the Government’s interpretation of the statute.

Guillen, 537 U.S. at 146 (citations omitted).

By adopting the Solicitor General’s interpretation of the statute, the Supreme Court placed significant limits on the interpretation of 23 U.S.C. § 409 by striking a balance between blanket assertions of the § 409 privilege and
claims at the opposite extreme that § 409 only protects materials and reports created by an agency in the act of seeking federal funding for a particular project. As Guillen makes clear, the privilege created by § 409 does not apply to documents compiled or collected for purposes unrelated to § 152 (hazard elimination projects) and held by agencies that are not pursuing a specific § 152 objective, even though this information or data may later be included in a federally mandated report, survey, schedule or list. Thus, the privilege does not apply to accident reports, nor to documents and information originally gathered for other purposes.

In the next blog post, I will continue this discussion. Stay tuned…


* Guillen v. Pierce County, Pierce County Cause No. 96-2-13404-5; 98-2-06119-2.
** Whitmer v. Pierce County, Pierce County Cause No. 97-2-07236-6.

Part 3 – Claims for Damages: “Substantial Compliance”

Before its amendment in 2009, RCW 4.92.100 stated that “With respect to the content of such claims, this section shall be liberally construed so that substantial compliance will be deemed satisfactory.” Similarly, RCW 4.96.010(1) (which was not amended in 2009) provides that “The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory.”

Based on the language of these statutes, Washington courts required substantial compliance with the “content” requirements of RCW 4.92.100 and RCW 4.96.020. See Medina v. Public Utility Dist. No. 1, 147 Wn.2d 303, 53 P.3d 993 (2002); Reyes v. City of Renton, 121 Wn. App. 498, 86 P.3d 155 (2004). On the other hand, these cases required strict compliance with claim filing procedures on the basis that filing a claim is a condition precedent to commencing an action seeking damages from governmental entities. Medina v. Public Utility Dist. No. 1, supra; Reyes v. City of Renton, supra. As explained by the court in Reyes:

Although the claim filing statutory scheme authorizes substantial compliance with the laws specifying the content of the notice of claims, strict compliance is clearly emphasized with the filing procedures themselves. Failure to strictly comply with statutory filing requirements leads to dismissal of the action.  Reyes v. City of Renton, 121 Wn. App. at 502 (citations omitted).

The application of this strict compliance rule sometimes led to harsh results. For example, in the Medina case, the court affirmed the dismissal of a personal injury case brought by a motorist against a county public utility district on the basis that the he had failed to strictly comply with the 60-day waiting period between presentation of his tort claim to the utility district and the commencement of his action in the superior court. The 2009 amendments to the claim statutes overrule the strict compliance rules cases, and now provide that “[w]ith respect to the content of claims under this section and all procedural requirements in this section, this section must be liberally construed so that substantial compliance will be deemed satisfactory.” RCW 4.92.100(3); RCW 4.96.020(5) (emphasis added). Presumably, cases addressing what constitutes substantial compliance for purposes of the claim statutes still remain good law after the 2009 amendments. For example, in Renner v. City of Marysville, 145 Wn. App. 443, 187 P.3d 283 (2008), the court held that, for purposes of the claim-filing statutes for tort claims, the substantial compliance rule has two necessary conditions: first, there must be a sufficient bona fide attempt by the claimant to comply with the law even though the attempt may be defective in some particular, and, second, the attempt at compliance must actually accomplish the statutory purpose of the claim statutes, which is to give governmental entities sufficient notice to enable them to investigate the cause and character of the injury.

Part 2 – Claims for Damages

After a long hiatus, I’m back in the blogging saddle. Where I last left off was a preliminary discussion regarding Claim for Damages…

Local governments and the State must make the standard form available with instructions on how the form is to be prese ted, along with the name, address, and business hours of the agent authorized to receive the claim. RXCW. 4.92.100(2); RCW 4.96.020(c).

The standardized claim form developed by the state must not require disclosure of the claimant’s social security number. It also “must not” require information that is not specified in the statute. RCW 4.95.100(2). If a local governmental entity develops its own form, the form may request additional information beyond that set forth in RCW 4.96.020(3)(a), but the local governmental entity may not deny a claim because of a claimant’s failure to provide that additional information. RCW 4.96.020(3)(c)(i). As with the state’s standardized form, claim forms developed by local governmental entities “must not” require a claimant’s social security number. RCW 4.96.020(3)(c)(ii).

Although both RCW 4.92.100 and RCW 4.96.020 require the claimant to include the amount of damages claimed, the amount of damages stated on the claim form is not admissible at trial. RCW 4.92.100(c); RCW 4.96.020(3)(f). RCW 4.92.100(2) directs that “the standard tort claim form…must not require information not specified under this section.” Despite this statutory restriction, the standard tort claim form recently developed by the state appears to violate this provision by requesting a significant amount of information beyond that required by RCW 4.92.100(1)(a). (For example, the standard form asks for the “names, addresses and telephone numbers of treating medical providers” and for “copies of all medical reports and billings”, even though the statute does not require a claimant to disclose any of this information).[1] Because the standard tort claim form “must” only require information specified in RCW 4.92.100(1)(a), a claimant should object under RCW 4.92.100(2) to any items on the form that request information not specified under the statute.

Under RCW 4.96.020(3)(f), if a municipality develops its own tort claim form, the claimant has the option of choosing to file the standard tort claim form or the local tort claim form; “presenting either the standard tort claim form or the local government tort claim form satisfies the requirements of [the statute].” As explained above, if a claimant chooses to file the standard tort claim form against a local governmental entity, an objection should be made based on RCW 4.92.100(2) to any items on the standard tort claim form that request information not specified in RCW 4.96.020(3)(a).

Unlike the previous requirement, under the 2009 legislation, a claimant no longer is required to identify what was his or her residential address six months prior to the time the claim arose, stating instead only his or her actual residence at the time the claim arose. RCW 4.92.100(1)(a)(vii); RCW 4.96.020(3)(a)(vii). Another major change made by the 2009 amendments is that a claim may now be signed either by the claimant (who must also verify the claim), by the claimant’s attorney-in-fact under a power of attorney, by an attorney licensed to practice in Washington, or by a court-approved guardian or guardian ad litem on behalf of the claimant. RCW 4.92.100(1)(b); RCW 4.96.020(3)(b).

A claim against a local governmental entity is deemed presented when the form is delivered in person or received by the agent by regular mail, registered mail or certified mail, with return receipt requested. RCW 4.96.020(2). Similarly, for claims against the State, presentation of the claim is accomplished by service upon the agent or by registered mail. RCW 4.92.100(1).

When presenting a claim to a local governmental entity, practitioners should be careful to file the claim with the proper local agent. As indicated above, RCW 4.92.020(2) requires the governing body of each local  governmental entity to appoint an agent to receive claims for damages. The identity of the agent and the address where he or she may be reached during the normal business hours of the local governmental entity by law must be recorded with the auditor of the county in which the entity is located.

The 2009 amendments also clarify that for claims against local governments, if a claim form provided by a governmental entity fails to request the information specified in the statute or incorrectly lists the agent to whom the claim is to be filed, the local government is deemed to have waived any defense related to the failure to provide that specific information or to file with the proper agent. RCW 4.96.020(3)(d).

[1] Additional information requested on the standard tort claim form but not required by the statute includes: the names, addresses and phone numbers of all state employees having knowledge of the incident; a list of all witnesses on liability and damages and a description of the knowledge of each; and a list of documents that support the allegations of the claim. The standard tort claim form also must be signed under penalty of perjury, which again is not required by the statute.



Claim For Damages

Admittedly, I’ve not had a chance to blog recently. However, I was reminded of my goal to write about claims against the government, when reading about a recent $20 million claim by a WA state inmate against the City of Tacoma for excessive force.

Claims against government in WA State have unique requirements

Laws applicable to suits against governmental entities in Washington are unique in requiring the filing of a Claim for Damages (using the Standard Tort Claim Form) and waiting 60 days before filing suit. This requirement is jurisdictional and a failure to file the claim and/or to wait the 60 days has been fatal to some unsafe roadway cases.

Under RCW 4.92.100(1) as amended in 2009, claims against the State must now be presented on a standard tort claim form. The statute requires the Office of Financial Management to “maintain” the form and put it on its website.

Claims against the local governments may be presented on either the state’s standard tort claim form or a form provided by the local government, under RCW 4.96.020(3)(c).

I’ll write more about this in the coming days/weeks, as there is much to cover.