Plaintiff’s suit does not toll limitations on separate cross-claim between co-defendants

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The Court of Appeals reviewed the Washington cases that involved the tolling of statutes of limitations as to counterclaims. The court noted that there were two reasons for such a rule. First, without such a rule, a plaintiff could wait until just prior to the expiration of the statute of limitations to sue, depriving the defendant of adequate time to counterclaim. Second, a counterclaim contemplates that the plaintiff and the defendants are competing for the same asset, so that by suing, a plaintiff waives his right to assert the statute of limitations.

But the Dalton court concluded that those rationales do not apply to cross-claims that are independent of, and go beyond, the plaintiff's initial claim. Dalton alleged his cross-claim as an attempt to recover his own damages, not for contribution as to Rieger's damages. Thus the subject matter of Rieger's claim and of Dalton's cross-claim were separate, even though they arose from the same accident.

The Dalton court also considered many out-of-state cases on the issue. Some of those states, unlike Washington, had statutes that expressly tolled the statute of limitations for cross-claims like the one Dalton alleged here. The other out-of-state cases sided with Bennett, holding that the plaintiff's suit did not toll the statute of limitations as to a cross-claim that sought damages that were independent of the plaintiff's. Only when the cross-claim was "defensive," seeking to blame the co-defendant for the plaintiff's damages, rather than for the cross-claimant's independent damages, did other states allow the statute to be tolled, and that was not the case here.

Dalton also argued that a Washington statute, RCW 4.16.170, tolled the statute of limitations. That statute tolls the running of the statute of limitations, giving the plaintiff 90 days after serving the summons and complaint to file the action, or vice versa. The Dalton court again disagreed. Tolling statutes are strictly construed because they run counter to Washington's policy favoring strict application of statutes of limitations. Since this statute did not explicitly address the present situation, the court held that it did not apply.