King v. Snohomish County , 146 Wash. 2d 420 ( 2002 )

Sanders, J.

(dissenting) — I do not agree Snohomish County waived its claim filing defense under the criteria set forth in Lybbert v. Grant County, 141 Wn.2d 29, 39, 1 P.3d 1124 (2000). The county’s prior conduct was not inconsistent with maintaining this defense and defense counsel was not dilatory in asserting it.

As to the second point the majority agrees, leaving only the first for further discussion.

The county’s objection and alternative answer to the interrogatory question about defenses was not inconsistent with maintaining them. At worst it was ambiguous or unresponsive. But unmistakably it was an affirmation the county continued to rely on the claim filing defense, and had not abandoned it.

A litigant has no duty to move for summary judgment to preserve a defense, although, admittedly, that might have been more efficient in this context.

Judge Marlin Appelwick’s opinion in King ex rel. King v. Snohomish County, 105 Wn. App. 857, 865-67, 21 P.3d 1151 (2001) is correct, and nothing presented by our majority changes that view. If there is an injustice here, it was the legislation which created the claim filing requirement, not the conduct of the county which relied on it. The law is clear, however.

Therefore I would affirm the Court of Appeals and accordingly dissent.