Nancy Fechner v. Scott Volyn dba Volyn Law Firm , 418 P.3d 120 ( 2018 )

FILED
MAY 22, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
NANCY FECHNER, individually and as ) No. 35291-9-III
Personal Representative for the ESTATE
)
OF DENNIS FECHNER (deceased), )
)
Appellant, )
)
v. )
) PUBLISHED OPINION
SCOTT VOLYN, doing business as )
VOLYN LAW FIRM, PLLC, )
)
Respondent, )
)
JANE DOE VOLYN, wife of Scott Volyn, )
)
Defendant. )
PENNELL, J. — Nancy Fechner, on behalf of herself and as personal representative
for the estate of Dennis Fechner, appeals a summary judgment order dismissing her legal
malpractice claims against Scott Volyn and the Volyn Law Firm (collectively “Volyn”).
Because material issues of fact exist as to whether Mrs. Fechner can state a claim against
Volyn, we reverse and remand for further proceedings.
FACTS
Dennis Fechner died on October 28, 2009. His wife, Nancy Fechner, believes
his death was caused by inappropriate medications prescribed by his dermatologist,
No. 35291-9-III
Fechner v. Volyn
Dr. Daniel Dietzman. The date of Dr. Dietzman’s last prescription for Mr. Fechner was
in May 2009. 1 Mrs. Fechner took her potential medical negligence wrongful death claim
to Scott Volyn at the Volyn Law Firm.
According to Mrs. Fechner, she first met with Mr. Volyn in October 2011.
Mrs. Fechner states Mr. Volyn told her he thought she had a good case and would take
it on. According to Mr. Volyn, he did not begin representing Mrs. Fechner until at least
August 2012 when Mrs. Fechner signed paperwork authorizing Volyn to investigate her
case.
Volyn formally withdrew from representing Mrs. Fechner on April 5, 2013. Mrs.
Fechner then found another attorney and on October 25, 2013, filed her complaint against
Dr. Dietzman for wrongful death due to injuries resulting from health care. Mrs. Fechner
later stipulated to dismissal of her lawsuit against Dr. Dietzman due to a belief that the
applicable statute of limitations had lapsed.
Mrs. Fechner subsequently brought a legal malpractice action against Volyn. The
trial court granted Volyn summary judgment dismissal of Mrs. Fechner’s claims. Mrs.
1
We do not recount the factual basis for Mrs. Fechner’s medical negligence
complaint against Dr. Deitzman as it is not relevant to the issues on appeal.
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Fechner unsuccessfully moved for reconsideration of the trial court’s dismissal order.
Mrs. Fechner appeals.
ANALYSIS
Medical negligence statute of limitations
The parties’ initial dispute is purely legal and pertains to when Mrs. Fechner’s
claims against Dr. Dietzman would have accrued for statute of limitations purposes. Our
starting point is the medical negligence statute of limitations (MNSOL). The MNSOL
requires a claim for medical negligence be filed either within three years of a negligent
act or omission or one year from when the negligence should have been discovered,
whichever date is later. RCW 4.16.350. In cases where a plaintiff’s claim is for
“wrongful death resulting from negligent health care,” the MNSOL applies, not the
general torts catchall limitations period set forth at RCW 4.16.080(2). Fast v. Kennewick
Pub. Hosp. Dist., 187 Wash. 2d 27, 29, 384 P.3d 232 (2016).
According to Mrs. Fechner, the MNSOL’s three-year period began running when
Dr. Dietzman last prescribed the allegedly inappropriate medication to Mr. Fechner in
May 2009. Because Mrs. Fechner by her own admission first learned the impact of Dr.
Dietzman’s prescription at the time of her husband’s death, she claims the MNSOL’s one-
year discovery period would have started to run in October 2009. Given these two
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available start dates, Mrs. Fechner contends the statute of limitations on the claims
against Dr. Dietzman would have expired in May 2012, unless a request for mediation
under RCW 7.70.110 was made prior to that date. Had a timely request for mediation
been made, the MNSOL would have been tolled until May 2013. But because no
mediation request was made prior to May 2012, Mrs. Fechner argues the statute of
limitations for the claims against Dr. Dietzman expired in May 2012.
Volyn contends that any claims based on wrongful death accrued on the date of
Mr. Fechner’s death, October 28, 2009, regardless of the date of the negligent act or
omission that led to death. Thus, the latest expiration date of Mrs. Fechner’s claims
without a mediation request under RCW 7.70.110 was October 28, 2012. Because a
mediation request was submitted in September 2012, Volyn claims the statute of
limitations for Mrs. Fechner’s wrongful death claims was extended to October 28, 2013.
According to Volyn, the Supreme Court’s decision in Fast establishes that when
a medical negligence claim manifests itself as a wrongful death action, the statute of
limitations does not accrue until the date of death. Fast addressed a medical negligence
case involving the wrongful death of an unborn child. 187 Wash. 2d at 33. The Fasts
requested mediation several days shy of the three-year anniversary of their child’s death.
Id. at 31-32. Thus, they claimed under the MNSOL the time period for filing a legal
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claim had been extended an additional year. Id. at 33. The medical provider defendants
countered that the MNSOL did not apply to wrongful death actions. Id. Instead, the
general torts catchall three-year limitation period applied. Id. Since the catchall three-
year limitation period does not include a one-year tolling provision for a good faith
mediation request, the defendants claimed the plaintiffs’ complaint was untimely.
Id. at 33, 37.
The Supreme Court agreed with the Fasts that wrongful death actions based on
medical negligence fall under the MNSOL. Fast, 187 Wash. 2d at 33-34. The court noted
that its holding might sometimes work an injustice to plaintiffs. Id. at 39. Because the
three-year MNSOL is triggered by the act of negligence, not the date of death, the time
for filing a claim could expire even before death. Id. Nevertheless, in the case at bar, no
injustice was at risk since the death of the Fasts’ child “and last act/omission of health
care were virtually simultaneous.” Id.
Based on Fast, it is apparent that any claims against Dr. Dietzman accrued on the
last date of alleged negligence. This was in May 2009. The current case is not like Fast
where death and the last negligent act or omission were virtually simultaneous. Had Mr.
Fechner not died for several years after his treatment and surgery, the claims for medical
negligence might have expired prior to death, unless saved by the one-year discovery
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provision of RCW 4.16.350 or the one-year tolling provision of RCW 7.70.110. Because
the MNSOL’s three-year term began to run on the date of Dr. Dietzman’s last alleged
negligent act or omission, the statute of limitations for any claims against Dr. Dietzman
would have expired in May 2012. Because there was no mediation request prior to May
2012, the limitations period became final at that point.
Contrary to Volyn’s claims, Mrs. Fechner did not have a separate wrongful death
claim against Dr. Dietzman, governed by a different statute of limitations. Fast made
clear that all medical negligence claims are governed by the MNSOL, even if the medical
negligence results in death as opposed to some other sort of harm. Justice Madsen’s
concurrence in Fast emphasized this point, recognizing that Fast altered the landscape of
“wrongful death jurisprudence” by carving out a special statute of limitations for
wrongful death causes of action based on medical negligence. Fast, 187 Wash. 2d at 42
(Madsen, J., concurring). Justice Madsen warned that Fast’s statute of limitation rule was
based on unique statutory language and was therefore inapplicable to other types of
wrongful death claims. Id. at 43. Had Fast not applied to wrongful death claims, as
asserted by Volyn, then Justice Madsen’s observations would have been off point. Fast
would have had nothing to do with wrongful death claims and the decision would not
need to be classified as an exception to the general rule regarding the statute of limitations
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in wrongful death cases. We do not read Justice Madsen’s concerns as having been so
misguided. Instead, it is apparent that Fast applies to a wrongful death claim if the claim
is based on medical negligence. There is no separate cause of action.
Even if the law permitted Mrs. Fechner a separate wrongful death claim against
Dr. Dietzman (which it does not), summary judgment would still be inapplicable. A
mediation request tolls the statute of limitations only in the medical negligence context.
RCW 7.70.110. It does not apply to the general torts catchall statute of limitations.
Accordingly, any separate wrongful death claim that Mrs. Fechner may have had against
Dr. Deitzman would have expired on October 28, 2012, three years after the date of
death. Because Mr. Volyn represented Mrs. Fechner during this period, Mrs. Fechner
would still have a viable claim that Volyn failed to act on during the limitations period.
Initiation of Volyn’s representation of Mrs. Fechner
The parties have a factual dispute over when Mr. Volyn began an attorney-client
relationship with Mrs. Fechner. Mrs. Fechner contends Mr. Volyn began representing her
in October 2011. Mr. Volyn claims representation did not begin until at least August
2012 when Mrs. Fechner executed a document entitled “Authority to Investigate.”
Clerk’s Papers (CP) at 138. This factual dispute matters because if Mrs. Fechner is
correct, then based on the MNSOL analysis, her claims against Dr. Dietzman would have
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expired during Mr. Volyn’s period of representation and Mrs. Fechner would be able to
state a claim against Volyn for failing to take action during this time period. However, if
representation did not begin until August 2012, then the limitations period would have
expired prior to representation and Mrs. Fechner would not be able to make out a
malpractice claim.
Whether an attorney-client relationship exists is a question of fact that depends on
the totality of the circumstances. The date of a written agreement or receipt of funds does
not necessarily dictate the beginning of an attorney-client relationship. Bohn v. Cody,
119 Wash. 2d 357, 363, 832 P.2d 71 (1992). Instead, the existence of the relationship turns
on the reasonable beliefs of the client and may be implied from the parties’ conduct. Id.;
In re the Disciplinary Proceeding Against McGlothlen, 99 Wash. 2d 515, 522, 663 P.2d
1330 (1983).
Volyn claims that, despite Mrs. Fechner’s protestations, no competent evidence
supports the view that the attorney-client relationship began prior to August 2012, when
Mrs. Fechner formally granted Volyn authority to investigate these claims. According to
Volyn, Mrs. Fechner unequivocally admitted in her deposition that she signed the
authority to investigate form during her first meeting with Mr. Volyn. Volyn asserts that
Mrs. Fechner is prohibited from submitting evidence of an earlier meeting date in order to
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contradict the clear answers given during deposition. See Overton v. Consol. Ins. Co.,
145 Wash. 2d 417, 429-30, 38 P.3d 322 (2002).
The problem with Volyn’s analysis is that Mrs. Fechner never clearly stated that
she first met with Mr. Volyn in August 2012 when she signed the authority to investigate
document. The relevant portion of Mrs. Fechner’s deposition testimony follows:
Q. Take a look at what we have marked as Exhibit 16, which is
authority to investigate document in which it says, “I have discussed a
potential claim with [Volyn] arising out of the following incident,
prescription use of Enbrel for Dennis Fechner,” and then it says, “I have not
employed Volyn Law Firm to file suit or to represent us as my legal
attorneys. I authorize Volyn Law Firm to conduct an investigation of this
incident with the understanding that the results of such investigation remain
the property of Volyn Law Firm.” And then it says, “Check one, Volyn
Law Firm agrees to advance the costs involved in the conduct of this
investigation.” And it was signed August 8th of 2012. And then has your
signature and it has [Mr. Volyn’s] signature.
You see that?
A. I see that, but I have a question, please.
Q. Okay.
A. May I ask?
Q. Go for it.
A. It says here, “I have not employed Volyn Law Firm to file suit or
to represent us as my legal attorneys.”
When I went in and talked to Mr. Volyn about taking the case, and
we had talked about contingency basis and et cetera, he said he would look
into everything and he said, yes, he says, just by looking at things and from
what I told him, he said he felt I had a case but without looking into
everything and investigating, he cannot give me anymore [sic] accurate
answer than that, but—
Q. When was that?
A. That’s when I went in to see him the first time.
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Q. This was signed on August 8th of 2012.
A. Well, whenever that was, I had went in to see him and he had me
sign this paper and there was a couple other papers he had me sign. I don’t
know if it was giving him allowance to get information on records or what
they were, I don’t remember at this time, but . . .
Q. So did you sign Exhibit 16 the first time you ever met Scott
Volyn?
A. I can’t remember if that was the first time—no, because when I
went in for consultation the very first time and took the records to him to
look at, I didn’t sign anything at that time. It was like the next visit or the
next couple visits that I did. He had—he said that he felt that I had a good
case and he was—would take the case.
CP at 527-29 (emphasis added).
Far from clearly admitting that she signed the authority to investigate document
during her first meeting with Mr. Volyn, Mrs. Fechner’s deposition testimony indicates
she did not sign the form during her first meeting. Instead, she indicated she signed the
form on either the second or the third meeting.
Mrs. Fechner has submitted competent evidence indicating she began working
with Mr. Volyn during October 2011. The most direct evidence is Mrs. Fechner’s
declaration, in which she states that to the best of her recollection she “took the case to
Volyn on or about October 2011.” CP at 430. Mrs. Fechner remembered this date
because at the time Mr. Volyn withdrew from representation in April 2013, Mrs. Fechner
wondered why Mr. Volyn would have handled her case “for a year and a half” before
withdrawing. Id. at 493. Mrs. Fechner also articulated this thought process during her
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deposition. Id. The declaration of Olin Ensley further supports Mrs. Fechner's claim that
she believed Mr. Volyn was her attorney back in October 2011. Id. at 509.
The current record is sufficient to raise a material issue of fact as to when an
attorney-client relationship arose between the parties. If Mrs. Fechner is able to prove
that the attorney-client relationship was established prior to May 2012, then she will have
a viable claim that Mr. Volyn failed to take action on her case before expiration of the
applicable statute of limitations. Given these circumstances, Volyn is not entitled to
summary judgment.
CONCLUSION
We reverse the trial court's summary judgment order dismissing Mrs. Fechner's
claims. This matter is remanded for further proceedings consistent with the terms of this
opm1on.
Pennell, J.
WE CONCUR:
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