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Haynes v. Russell

The Court of Appeals of Washington, Division Three
Feb 26, 2008
143 Wn. App. 1021 (Wash. Ct. App. 2008)

Opinion

No. 25682-1-III.

February 26, 2008.

Appeal from a judgment of the Superior Court for Whitman County, No. 02-2-00046-9, Philip W. Borst, J., entered October 25, 2006.


Reversed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Schultheis, A.C.J., and Kulik, J.


Kara Eichelsdoerfer intervened as a Plaintiff in a civil action against Frederick Russell seeking damages for injuries she suffered in a multi-vehicle accident. During discovery, Ms. Eichelsdoerfer served requests for admissions on Mr. Russell who, through counsel, denied several of the requests. Ms. Eichelsdoerfer subsequently filed a motion for partial summary judgment on liability. Mr. Russell and another witness were unavailable to support Mr. Russell's defense to the action. The trial court granted summary judgment on the issue of liability. Ms. Eichelsdoerfer then successfully brought a motion for sanctions pursuant to CR 37(c) against Mr. Russell, his defense counsel, and his insurer. Good cause existed to deny the requested admissions. We reverse.

On March 30, 2005, the superior court granted Mr. Russell's attorneys, Kirkpatrick Startzel, P.S., and his automobile insurance carrier, Progressive Insurance Company, permission to intervene as defendants for the purpose of an appeal.

FACTS

On June 4, 2001, Frederick Russell was driving eastbound on State Route 270 in Whitman County between the cities of Pullman, Washington and Moscow, Idaho when his vehicle collided with three other vehicles. Three people were killed and several others, including Kara Eichelsdoerfer, were injured in the accident. A witness at the scene stated that Mr. Russell was speeding and crossed the center line prior to the accident. A subsequent blood test indicated that Mr. Russell had a blood alcohol content of .12g/100 ml. of blood approximately two and a half hours after the collision.

At the time of the collision, Mr. Russell was insured by an automobile liability insurance policy issued by Progressive Insurance Company (Progressive). This policy provided for a maximum bodily injury limit of $25,000 per person and $50,000 per accident.

On June 15, 2001, Mr. Russell spoke with Doug King, an insurance adjuster with Progressive. Mr. Russell asserted that he was not at fault for the collision and was forced to swerve in order to avoid an oncoming car in his lane of travel. Mr. Russell's version of events was confirmed by Jacob McFarland, a passenger in Mr. Russell's car at the time of the accident. Additionally, a statement was obtained from Levi Neufeld, the bartender who served Mr. Russell and his companions that evening. Mr. Neufeld stated that Mr. Russell only ordered two drinks for himself and that he never appeared intoxicated.

Mr. Russell was subsequently charged with three counts of vehicular homicide and four counts of vehicular assault. After these charges were filed, Mr. Russell disappeared and his whereabouts were unknown.

In September 2003, Kara Eichelsdoerfer intervened in a lawsuit against Mr. Russell for damages sustained in the accident. She later filed and served requests for admissions on Mr. Russell. Mr. Russell, through counsel, admitted some of the requests and either denied or objected to the rest.

Ms. Eichelsdoerfer subsequently filed a motion for partial summary judgment on liability. Mr. Russell and Mr. McFarland were unavailable to support Mr. Russell's defense to the action. The trial court granted summary judgment on the issue of liability. Ms. Eichelsdoerfer then brought a motion for sanctions pursuant to CR 37(c) against Mr. Russell, his defense counsel, and his insurer claiming that Mr. Russell improperly failed to admit certain requests and thereby Ms. Eichelsdoerfer incurred the expense of proving the admissions.

The specific requests and responses are as follows: 3. That Frederick D. Russell was operating his vehicle in excess of the speed limit at the time of the collision which is the subject of this action:

ANSWER: Deny.

IF DEFINED IN WHOLE OR QUALIFIED IN ANY WAY, set forth your reasons in detail in accordance with CR 36(a). State of Washington and Police Traffic Collision Report No. 0846065 states each vehicle was traveling 55 mph.

4. That Frederick D. Russell's operation of his vehicle in excess of the speed limit was a proximate cause of the collision which is the subject of this action:

ANSWER: Deny.

IF DEFINED IN WHOLE OR QUALIFIED IN ANY WAY, set forth your reasons in detail in accordance with CR 36(a).

State of Washington and Police Traffic Collision Report No. 0846065 states each vehicle was traveling 55 mph.

5. That Frederick D. Russell was intoxicated by the use of alcohol at the time of the collision which is the subject of this action:

ANSWER: Objection. This request calls for a legal conclusion. Without waiving said objection, Defendant's counsel has made a reasonable inquiry and the information known or readily obtainable by him is insufficient to enable him to admit or deny at this time.

IF DEFINED IN WHOLE OR QUALIFIED IN ANY WAY, set forth your reasons in detail in accordance with CR 36(a).

Defendant's whereabouts are unknown despite the efforts of state and federal authorities, as well as private investigators, to locate him. Defendant's last known communication regarding this case was a letter sent to three local newspapers, including The Spokesman-Review. In that letter it stated "Understand, nothing occurred as the prosecutor and the media would have you believe."

6. That Frederick D. Russell's alcohol intoxication was a proximate cause of the collision which is the subject of this action: ANSWER: Objection. This request calls for a legal conclusion. Without waiving said objection, Defendant's counsel has made a reasonable inquiry, and the information known or readily obtainable by him is insufficient to enable him to admit or deny at this time.

. . . .

9. That Frederick D. Russell, in the operation of his vehicle, did cross over the centerline, in a no passing zone, in the area of the collision which is the subject of this action:

ANSWER: Admit.

. . . .

10. That Frederick D. Russell's crossing of the centerline was a proximate cause of the collision which is the subject of this action:

ANSWER: Objection. This request calls for a legal conclusion. Without waiving said objection, Defendant's counsel has made a reasonable inquiry, and the information known or readily obtainable by him is insufficient to enable him to admit or deny at this time.

IF DEFINED IN WHOLE OR QUALIFIED IN ANY WAY, set forth your reasons in detail in accordance with CR 36(a).

It is Defendant's counsel's understanding that Defendant Frederick Russell only crossed over the center line when he saw oncoming lights coming in his lane of travel.

11. That Frederick D. Russell's tortious conduct on the night of June 4, 2001, was a proximate cause of the collision which is the subject of this action: ANSWER: Objection. This request calls for a legal conclusion. Without waiving said objection, Defendant's counsel has made a reasonable inquiry, and the information known or readily obtainable by him is insufficient to enable him to admit or deny at this time.

IF DEFINED IN WHOLE OR QUALIFIED IN ANY WAY, set forth your reasons in detail in accordance with CR 36(a).

See Response to Request for Admission No. 10.

Clerk's Papers at 40-44.

After a hearing on the reasonableness of expenses, the trial court awarded Ms. Eichelsdoerfer $17,395.00 in fees and $1,241.89 in expenses against Mr. Russell, his counsel, and Progressive. Defense counsel and Progressive intervened and sought reconsideration of the trial court's award of sanctions. The trial court denied the motion.

ANALYSIS

The issue here is whether the trial court erred in awarding CR 37(c) sanctions against Mr. Russell, his counsel, and his insurer. We review a trial court's decision to impose discovery sanctions under CR 37(c) for an abuse of discretion. Thompson v. King Feed Nutrition Serv., Inc., 153 Wn.2d 447, 472, 105 P.3d 378 (2005); Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 684, 41 P.3d 1175 (2002). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).

"CR 37(c) provides that if a party fails to admit the truth of any matter as requested under a CR 36 request for admission and the matter is subsequently proved, the party may apply to the trial court for an order requiring the other party to pay reasonable expenses incurred in making that proof, including attorney fees." Thompson, 153 Wn.2d at 460; CR 37(c). The trial court may then order payment unless it finds that:

(1) the request was held objectionable pursuant to rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe the fact was not true or the document was not genuine, or (4) there was other good reason for the failure to admit.

CR 37(c).

Here, Mr. Russell objected to several of the requested admissions on the basis that they called for legal conclusions. "The purpose of CR 36 requests for admission is to eliminate from controversy factual matters that will not be disputed at trial." Thompson, 153 Wn.2d at 472 (citing Santos v. Dean, 96 Wn. App. 849, 861, 982 P.2d 632 (1999), review denied, 139 Wn.2d 1026 (2000); Brust v. Newton, 70 Wn. App. 286, 295, 852 P.2d 1092 (1993), review denied, 123 Wn.2d 1010 (1994); Reid Sand Gravel, Inc. v. Bellevue Props., 7 Wn. App. 701, 704, 502 P.2d 480 (1972)). "To that extent, a party is not required to concede either factual matters central to the lawsuit or legal conclusions." Thompson, 153 Wn.2d at 472; Brust, 70 Wn. App. at 295; Puget Sound Nat'l Bank v. St. Paul Fire Marine Ins. Co., 32 Wn. App. 32, 49, 645 P.2d 1122, review denied, 97 Wn.2d 1036 (1982); Reid, 7 Wn. App. at 704 ("It is not a proper use of CR 36 to request an adversary to admit, in effect, the truth of the assertion that he should lose the lawsuit."). "But CR 36 permits requests for the admission of, among other things, `statements or opinions of fact or the application of law to fact.'" Thompson, 153 Wn.2d at 472 (quoting CR 36(a)). "Furthermore, a party who believes a request for admission relates to `a genuine issue for trial or a central fact in dispute may not, on that ground alone, object to the request; he may, subject to the provisions of rule 37(c), deny the matter or set forth reasons why he cannot admit or deny it.'" Id. (quoting CR 36(a)).

However, CR 36 does permit "statements or opinions of fact or of the application of law to fact." CR 36(a). CR 36(a) also states that a party who believes that a matter for which an admission has been requested relates to "a genuine issue for trial or a central fact in dispute may not, on that ground alone, object to the request; he may, subject to the provisions of rule 37(c), deny the matter or set forth reasons why he cannot admit or deny it."

Here, while requests for admissions 4, 6, 10, and 11 could possibly be characterized as relating to "the application of law to fact," CR 36(a), they undoubtedly requested Mr. Russell to admit legal conclusions including negligence, proximate causation, and contributory negligence. Thompson, 153 Wn.2d at 474. To that extent, Mr. Russell had "`other good reason for the failure to admit'" Ms. Eichelsdoerfer's requests for admission. Id. (quoting CR 37(c)(4)). Thus, the trial court's award of attorney fees and expenses against Mr. Russell as to those requests was an abuse of its discretion.

Ms. Eichelsdoerfer admits that her request for admission 11 was improper. See Resp't's Br. at 15 n. 2.

As to request for admission 5 regarding whether Mr. Russell was intoxicated at the time of the accident, there were reasonable grounds to believe the facts in question were not true based on the pretrial statements of Mr. Russell, Mr. McFarland and Mr. Neufeld denying intoxication and contesting liability. Thus, sanctions were not appropriate.

Ms. Eichelsdoerfer argued, and the trial court found, that sanctions were appropriate under CR 37(c), because Mr. Russell failed to submit admissible evidence to defeat summary judgment. Although Ms. Eichelsdoerfer proved liability satisfactorily to the trial court on her motion for summary judgment, this adverse ruling does not automatically justify an award of expenses under CR 37(c). The true test under CR 37(c) is not whether a party prevailed but whether, at the time the responses were submitted, he had reasonable grounds to believe that the facts ultimately proven were not true. See Caruthers v. Proctor Gamble Mfg. Co., 177 F.R.D. 667, 668 (1998) and Fed.R.Civ.P. 37(c) advisory committee's note to 1970 amendments (discussing a similar provision contained in Fed.R.Civ.P. 37(c)(2), "[T]he true test under Rule 37(c) is not whether a party prevailed . . . but whether he acted reasonably in believing that he might prevail."). Thus, the availability of sanctions under CR 37(c) rests, not on whether adequate admissible proof was presented, but rather whether the evidence or investigation upon which the responding party relied was sufficient to support a denial. Thus, the inquiry at the trial court level should have been whether the evidence relied upon by Mr. Russell was sufficient to justify a "reasonable belief" that the request should be denied, not whether the evidence relied upon was ultimately admissible. Because counsel for Mr. Russell had reasonable grounds to believe the facts were not true, sanctions should not have been awarded.

Having decided to reverse the trial court, we do not reach the other issues raised in this case, including whether CR 37(c) sanctions can be awarded against defense counsel or an insurer; whether CR 26(i) certification is required; and whether ethical obligations affect defense counsel obligations under CR 36.

Ms. Eichelsdoerfer requested her attorney fees and expenses on appeal pursuant to RAP 18.1 and CR 37(c). There is no basis for an award of attorney fees on appeal in this case. First, Ms. Eichelsdoerfer has not prevailed on appeal. Second, RAP 18.1 authorizes a fee award only if applicable law grants the right to recover those fees. CR 37(c) only authorizes payment of fees and expenses incurred in making proof of a fact or issue denied in a request for admission. It does not appear to apply to fees for defending a court's award of fees on appeal. Ms. Eichelsdoerfer's request is denied.

CONCLUSION

We reverse. Ms. Eichelsdoerfer's request for attorney fees is denied.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

Schultheis, A.C.J., Kulik, J., concur.


Summaries of

Haynes v. Russell

The Court of Appeals of Washington, Division Three
Feb 26, 2008
143 Wn. App. 1021 (Wash. Ct. App. 2008)
Case details for

Haynes v. Russell

Case Details

Full title:ERIK A. HAYNES ET AL., Plaintiffs, KARA EICHELSDOERFER, Respondent, v…

Court:The Court of Appeals of Washington, Division Three

Date published: Feb 26, 2008

Citations

143 Wn. App. 1021 (Wash. Ct. App. 2008)
143 Wash. App. 1021