§25.5 Purpose and Procedure

• Jurisdiction: Washington

§25.5 PURPOSE AND PROCEDURE

This section discusses the purpose of CR 25 and procedures it governs.

(1)Purpose

CR 25 provides the steps necessary to substitute a party for a named party if the named plaintiff or defendant dies, becomes incompetent, or transfers interest during the course of the proceedings. The rule further provides that in the event of a transfer of a party's interest (other than by death or incompetence), the action continues by or against the original party unless the court orders substitution or joinder upon motion. CR 25(c).

(2)Procedure

CR 25 is strictly procedural in nature. In fact, when CR 25 was proposed, scholars commented that it was "merely a procedural rule which provides the methods by which a suit may continue if the right of action survives or continues." Robert Meisenholder, The Effect of Proposed Rules 7 through 25 on Present Washington Procedures: Part II, 32 Wash. L. Rev. & St. B.J. 336, 373 (1957). Relevant statutes and case law govern substantive issues regarding the survival of causes of action. 3AKarl B. Tegland, Washington Practice: Rules Practice 600-01 (2013). For this reason, CR 25(a) provides procedures for substitution only when a party dies "and the claim is not thereby extinguished."

CR 25 is distinguishable from CR 15, which provides for amendment of pleadings to bring in new parties, and from CR 21, which governs misjoinder of parties and authorization for parties to be dropped or added. See 3AKarl B. Tegland, Washington Practice: Rules Practice 598-600 (2013). See also Chapter 15. (Rule 15. Amended and Supplemental Pleadings) of this deskbook. The exact relationship between CR 21 relating to misjoinder of parties and CR 25 addressing substitution is subject to some dispute. See 3AKarl B. Tegland, Washington Practice: Rules Practice 598-99 (2013). Nonetheless, parties should not use CR 21 to obtain substitution under the circumstances addressed by CR 25. See generally Philip A. Trautman, Joinder of Claims and Parties in Washington, 14 Gonz. L. Rev. 103 (1978).

Practice Tip: When presented with a situation calling for substitution or change of parties, focus on the distinctionbetween substitution under CR 25 and amendment of pleadings under CR 15. Once the court substitutes a party under CR 25, that new party stands in the same position in an existing lawsuit as the party that it replaced However, if the court adds a party under CR 15, the existing claims may be new causes of action with respect to the newly added party This in turn will necessitate a reassessment of such basic considerations as jurisdiction and relation back of the amendment to the filing of the original action to avoid the bar of a statute of limitations.

(a)Death—survival of actions

CR 25(a) provides for substitution "[i]f a party dies and the claim is not thereby extinguished ...." Whether a claim survives the death of a party is a matter of substantive law that is not affected by the provisions of CR 25.

The survival of actions statutes, Chapter 4.20 RCW, and case law govern which actions will survive. Generally, any chose in action that is capable of assignment will survive. Curry v. Dep't of Labor & Indus.,49 Wn.2d 93, 96, 298 P.2d 485 (1956). RCW 4.20.046, the general survival statute, provides for survival of all actions by a person or persons against a person or persons "whether such actions arise on contract or otherwise," regardless of the former status of such actions at common law. RCW 4.20.060 is a special survival statute relating to personal injury cases resulting in death, in which the action survives to the surviving spouse, child, stepchildren, or heirs of the deceased. This statute provides a separate survival action if a designated beneficiary exists. See Vail v. Toftness,51 Wn.App. 318,32 ln.l, 753 P.2d 553 (1988). For a discussion of the relationship between the survival statutes and wrongful death statutes, see 16 David K. DeWolf & Keller W Allen, Washington Practice: Tort Law and Practice §§6.1-6.5 (3d ed. 2006 & Supp. 2012); J. Gregory Casey, Washington Wrongful Death and Survival Actions, 6 Gonz. L. Rev. 314 (1970-71).

(b)Time limits for substitution of parties

CR 25(a) requires substitution within the time authorized by law. The principal Washington statutes prescribing time limits for substitution of partiesunder particular circumstances areRCW 4.20.050 and RCW 11.40.110. Further, although...