Plaintiff’s suit does not toll limitations on separate cross-claim between co-defendants
By Carolanne D. McCaskill

A plaintiff's negligence suit against two defendants does not toll the statute of limitations on one defendant's independent cross-claim against the other, the Washington Court of Appeals has held.

In Bennett v. Dalton, No. 50864-4-I (Feb. 2004), Sherril Rieger, Robert Bennett, and Robin Dalton were involved in a September 1998 car accident. Bennett rear-ended Dalton's stopped vehicle on Interstate 405. The collision propelled Dalton's vehicle into Rieger's car. In April 2001, Rieger sued Bennett and Dalton. In September 2001, while Rieger's action was pending, the three-year statute of limitations ran.

In October 2001, Dalton answered Rieger's complaint. Dalton's answer included a cross-claim against Bennett for Dalton's own personal injuries and property damage. Bennett answered the cross-claim, denying it and asserting that the three-year statute of limitations had run on the cross-claim. Bennett moved for summary judgment of dismissal of Dalton's cross-claim based on the statute of limitations.

The trial court agreed and dismissed Dalton's cross-claim. But Dalton moved for reconsideration, and the trial court changed its mind and reinstated the cross-claim. The Court of Appeals accepted discretionary review of that order.

Bennett argued that no Washington case permitted a plaintiff's claim to toll the statute of limitations on a defendant's independent cross-claim. He cited cases from many other states that held that the statute of limitations was not tolled. Dalton responded that the plaintiff's commencement of an action tolls the statute of limitations as to a defendant's counterclaims against the plaintiff, and by the same token the defendant's cross-claims should be considered timely.