In a prior action brought by estate representative, Delores Robertson, for alleged asbestos exposure to the decedent, Thomas Robertson, Garlock Sealing Technologies LLC was found by a jury to be 25-percent liable. The remainder of the liability was split between the decedent and other settled and non-settled first and third party defendants. Judgment was entered on December 1, 2008. On July 26, 2012, Garlock brought an action pursuant to CR 60.02(d) claiming that the judgment was based on fraud for plaintiff failing to disclose in discovery responses the decedent’s exposure to asbestos from bankrupt manufacturer’s products. The defendant/estate representative moved to dismiss Garlock’s action for failure to state a claim in lieu of an answer. The circuit court granted the dismissal and Garlock appealed.
The court affirmed the dismissal, and held: “Garlock cannot escape the fact that its motion was based purely on alleged perjury or falsified evidence in the form of discovery responses. By definition, Robertson’s interrogatory responses were made under oath. CR 33.01(2) (‘Each interrogatory shall be answered separately and fully in writing under oath[.]’). Garlock’s alternative theory as to when Robertson knew of claims against Quigley and the others yields the same result. That is, Robertson subsequently came into possession of additional information regarding the decedent’s asbestos exposures that she knowingly failed to disclose by supplementing her responses. Taking this as true, Robertson had a duty to seasonably amend her prior response, and her intentional failure to do so allowed false evidence to stand. See CR 26.05(b). Reaching the conclusion that Garlock’s independent action was based on alleged perjury, we need look at only two dates: (1) the date of the judgment in the underlying case — December 1, 2008; and (2) the date Garlock filed its independent action under CR 60.03 — July 26, 2012. ‘Relief shall not be granted in an independent action if the ground of relief sought . . . would be barred because not brought in time under the provisions of’ CR 60.02. CR 60.03.’”