author: Andrus, J.

text:
    MOUNT ZION LUTHERAN CHURCH, Appellant v. CHURCH MUTUAL INSURANCE COMPANY, a foreign corporation, Respondent.
    No. 78107-3-I
    Court of Appeals of Washington, Division 1.
    FILED: March 18, 2019 Publication Ordered May 14, 2019
    Bruce Winchell, Gretchen Graham Salazar, Mills Meyers Swartling, 1000 2nd Ave., Ste. 3000, Seattle, WA, 98104-1064, Geoffrey M. Grindeland, Seamark Law Group PLLC, 400 Winslow Way E., Ste. 230, Bainbridge Island, WA, 98110-2402, for Appellant.
    Jeffrey Stuart Tindal, Betts Patterson & Mines, 701 Pike St., Ste 1400, Seattle, WA, 98101-3927, for Respondent.
    PUBLISHED OPINION
   Andrus, J.

¶ 1 Mount Zion Lutheran Church appeals a summary judgment determination that its insurer, Church Mutual Insurance Company, has no obligation to reimburse it for certain costs incurred when it remodeled its fire-damaged church building. We affirm.

FACTS

¶ 2 On May 7, 2014, a fire caused significant interior damage to Mount Zion Lutheran Church in Mountlake Terrace. Mount Zion was insured by Church Mutual Insurance Company under Policy Number 0067342-02-381415 (the Policy). Under the Policy, Mount Zion could collect the "Actual Cash Value" (ACV) of the "Covered Property," regardless of whether it chose to repair or replace the church. If Mount Zion chose to rebuild, it could file a claim for repair or replacement costs exceeding the ACV.

¶ 3 Church Mutual hired J.S. Held Construction Consulting to prepare a scope of repair and cost estimate. J.S. Held estimated the cost to replicate the church building as it existed before the fire to be $ 729,106.42 (the Replacement Cost Valuation or RCV). J.S. Held estimated the ACV of the church to be $ 593,361.66, which Church Mutual paid to Mount Zion. The Policy allowed Church Mutual to withhold the difference between the RCV and ACV, approximately $ 135,744, until Mount Zion completed the repairs.

¶ 4 J.S. Held's estimate included the cost of replacing arched glulam beams in the church sanctuary and replacing the sanctuary roof, a cost of over $ 196,000. Slaed Spiller, an independent adjuster hired by Church Mutual, inspected the church, including the glulam beams, and discussed their replacement with Pastor Frank Paine. Pastor Paine indicated to Spiller that he preferred to repair, rather than replace, the glulam beams, as replacement would require removal of the church's roof. Church Mutual hired Rimkus Consulting Group to assess the glulam beams, and it concluded they did not need to be replaced.

¶ 5 By the end of June 2014, Mount Zion had four bids, all of which reflected the cost of repairing, rather than replacing, the glulam beams. None included replacing the entire sanctuary roof. The bids ranged from $ 363,989, to $ 426,716, well below the ACV already paid to the church.

¶ 6 In late July 2014, Mount Zion retained a public adjuster, Drew Lucurell, to assist with its insurance claim. Church Mutual's adjuster, Spiller, testified that Lucurell claimed the glulam beams had to be replaced, rather than repaired. Although Rimkus and the four bidding contractors did not deem replacement of the beams to be necessary, Church Mutual acquiesced and allowed Mount Zion to replace them. J.S. Held did not modify its RCV.

¶ 7 Mount Zion retained Seattle Remodeling Company to perform the repairs. Spiller performed a routine post-repair inspection of the church on October 28, 2015, and he discovered that the glulam beams had been repaired, not replaced.

¶ 8 Mount Zion prepared a replacement cost claim in April 2016 in which it reallocated the cost estimated to replace the glulam beams and sanctuary roof to a set of "substitute expenditures." The claim is not a part of the record. But Church Mutual submitted documents from Lucurell's files indicating the church spent a total of $ 750,682.30 in repair and replacement costs. From what we can glean from the record, the contractor granted the church a credit of $ 53,874 for eliminating work to replace the glulam beams, identified supplemental expenditures of $ 28,432, and included additional costs of $ 75,500 for "extras" requested by the church. Church Mutual asserts on appeal it reimbursed the church for the cost of repairing the glulam beams, but we cannot find any evidence in the record to support this contention.

¶ 9 Mount Zion presented evidence that it elected to refurbish, rather than replace, the arched glulam beams in the sanctuary because removing the roof would have added significant time to the reconstruction timeline. Believing it was entitled to the funds to install new glulam beams, Mount Zion chose to make "substitute expenditures" with funds otherwise allocated for the beam replacement.

¶ 10 For example, Mount Zion presented evidence that the original church had a perpendicular wing with offices and a small kitchenette, which were irreparably damaged. Mount Zion chose to replace the old kitchenette with a full-size kitchen, redesigning it to make it more functional for the church's current needs. According to Lucurell's documents and Church Mutual's adjuster Spiller, the full-size kitchen had upgraded kitchen cabinets, an upgraded sink and faucets, new self-closing drawers, and upgraded appliances.

¶ 11 Church Mutual presented evidence that Mount Zion also upgraded the hardware on the front entry doors, upgraded the flooring and base trim in the sanctuary and foyer, upgraded wall and ceiling insulation, reframed the mezzanine for use as storage, installed underground conduits for phone and internet cables, added custom built shelving to a meeting room and classroom, refurbished a street sign not damaged in the fire, and upgraded lighting in the foyer, fellowship building, and sanctuary.

¶ 12 Church Mutual refused to pay the cost of replacing beams the church did not replace. It also refused to reimburse the church's "substitute expenditures" as "unnecessary" under the Policy.

¶ 13 Mount Zion sued Church Mutual, alleging breach of contract, breach of the duty of good faith and fair dealing, and violations of the Washington Consumer Protection Act (CPA)

and Washington Insurance Fair Conduct Act (IFCA). Mount Zion filed a "motion for legal ruling regarding replacement cost coverage," arguing it was entitled under the Policy to the full amount of the RCV, regardless of its decision not to replace the sanctuary beams. The trial court denied Mount Zion's motion, holding it is "not entitled to Replacement Cost Coverage for any substituted costs incurred that were unnecessary to repair or replace the lost or damaged portions of the church building." Mount Zion appeals.

ANALYSIS

¶ 14 The sole issue on appeal is whether Mount Zion is entitled to receive the full RCV calculated by Church Mutual under the Policy.

Standard of Review

¶ 15 This court reviews de novo an order granting or denying summary judgment. Ruvalcaba v. Kwang Ho Baek, 175 Wash.2d 1, 6, 282 P.3d 1083 (2012). The trial court's ruling was based on an interpretation of the Policy. Interpretation of an insurance contract is also a question of law we review de novo. Kut Suen Lui v. Essex Ins. Co., 185 Wash.2d 703, 710, 375 P.3d 596 (2016).

Rules of Construction or Interpretation of Insurance Contracts

¶ 16 This appeal involves the proper interpretation of section C, paragraph 7 of the Policy. This court construes insurance policies as contracts. Id. at 710. In construing the language of an insurance policy, its provisions must be construed together so as to give force and effect to each clause. Transcon. Ins. Co. v. Wash. Pub. Util. Dist. Util. Sys., 111 Wash.2d 452, 456, 760 P.2d 337 (1988). When this court interprets an insurance policy, it gives it "a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance." Kut Suen Lui, 185 Wash.2d at 710, 375 P.3d 596 (internal quotation marks omitted) (quoting Key Tronic Corp. v. Aetna (CIGNA) Fire Underwriters Ins. Co., 124 Wash.2d 618, 627, 881 P.2d 201 (1994) ). If the language is clear and unambiguous, the court must enforce it as written and may not modify the contract or create ambiguity where none exists. Transcon. Ins. Co., 111 Wash.2d at 456, 760 P.2d 337.

¶ 17 Conversely, if a policy provision is, on its face, susceptible to multiple but reasonable interpretations, the policy is ambiguous, and the court must attempt to discern the intent of the parties and enforce the contract. Id. at 456-57, 760 P.2d 337. A court may rely on extrinsic evidence of the intent of the parties to resolve any ambiguity.

Quadrant Corp. v. Am. States Ins. Co., 154 Wash.2d 165, 171-72, 110 P.3d 733 (2005). Any ambiguity remaining after examination of the extrinsic evidence is resolved against the insurer and in favor of the insured. Id. But the expectations of the insured cannot override the plain language of the contract. Id.

Relevant Insurance Provisions

¶ 18 Section C, paragraph 7 of the Policy provides:

C. LOSS CONDITIONS
...
7. Valuation.
a. Replacement Cost. If Replacement Cost is shown in the Declarations Page as applicable to Covered Property, we will determine the value of Covered Property in the event of loss or damage as follows:
(1) At Replacement Cost (without deduction for depreciation) as of the time of loss or damage ...
(2) You may make a claim for loss or damage covered by this insurance on an "Actual Cash Value" basis instead of on a Replacement Cost basis. In the event you elect to have loss or damage settled on an "Actual Cash Value" basis:
(a) We will then determine the value of Covered Property on an "Actual Cash Value" basis when applying the Coinsurance Condition;
(b) You may still make a claim on a Replacement Cost basis if you notify us of your intent to do so ...
(3) We will not pay on a Replacement Cost basis for any loss or damage:
(a) Until the lost or damaged property is actually repaired or replaced; and
(b) Unless the repairs or replacement are made as soon as reasonably possible after the loss or damage.
(4) We will not pay more for loss or damage on a Replacement Cost basis than the least of:
(a) The Limit of Insurance applicable to the lost or damaged property;
(b) The cost to replace "on the same premises" the lost or damaged property;
1) Of comparable material and quality; and
2) Used for the same purpose; or
(c) The amount you actually spend that is necessary to repair or replace the lost or damaged property.
The term "on the same premises" is a limitation on the amount of loss or damage we will pay. It does not require you to replace lost or damaged property at the same site.

(emphasis added).

¶ 19 Mount Zion contends the trial court erred in ruling it had no right to receive the full RCV amount. We conclude, however, that Mount Zion is not entitled to the full amount of the RCV because section C.7.a.(3)(a) of the Policy limits Church Mutual's obligation to pay for any loss until the lost or damaged property is actually repaired or replaced.

¶ 20 In Hess v. N. Pac. Ins. Co., 122 Wash.2d 180, 859 P.2d 586 (1993), the Washington Supreme Court held that an insurer had no obligation to pay full replacement cost value of a cabin the insured chose to neither rebuild nor replace, Id. at 188, 859 P.2d 586. A policy provision stated that the insurer would pay no more than the actual cash value of the damage unless the "actual repair or replacement [was] complete." Id. at 184, 859 P.2d 586. This language unambiguously capped the insurer's liability at the actual cash value of the cabin until the cabin was repaired or replaced. Id. at 188, 859 P.2d 586.

¶ 21 Hess supports the trial court's interpretation of the Policy. As in Hess's policy, section C.7.a.(3)(a) of the Policy places a condition on Church Mutual's obligation to make any payment under section C.7.a.(4). Church Mutual has no obligation to pay on a replacement cost basis for any lost or damaged property that is not repaired or replaced. This language is not ambiguous. Mount Zion is not entitled to the replacement cost of glulam beams it chose not to replace.

¶ 22 Mount Zion further argues there is no basis for considering the glulam beams separately from the building to which they are attached because they are both "Covered Property" under the Policy. We disagree.

¶ 23 First, under section C.7.a.(2) of the Policy, the insured has the option of making a claim for loss or damage on an ACV basis instead of on a replacement cost basis. If this option is selected, section C.7.a.(2)(a) requires the insurer to determine the ACV of the "Covered Property." The "Covered Property" here is the church and all of its component parts, and the ACV reflects that value.

¶ 24 However, if the insured opts to make a claim on a replacement cost basis, as Mount Zion has done here, section C.7.a.(4) requires the insurer to reimburse for costs incurred to repair or replace "the lost or damaged property." It does not require payment to repair or replace "the Covered Property." While the ACV explicitly covers the entire building and all of its component parts as one unit, the RCV explicitly covers only lost or damaged property within the Covered Property.

¶ 25 Second, although the Policy does not define "lost or damaged property," it uses this phrase repeatedly throughout the Policy in contexts that undercut Mount Zion's argument. For example, under section C.3.a.(4) of the Policy, insureds are required to provide "complete inventories of the damaged and undamaged property," and if possible, to set aside "damaged property" for examination by the insurer. The Policy clearly distinguishes between components of a building that have been damaged and are in need of repair or replacement from undamaged components of that same building.

¶ 26 It is a fair, reasonable, and sensible construction of the Policy to consider the arched glulam beams separately from the rest of the lost or damaged property within the church building when determining how to compute replacement costs due to Mount Zion.

¶ 27 Even though Mount Zion is not entitled to the full RCV because it did not replace the glulam beams, it may nevertheless be entitled to reimbursement for its "substitute expenditures" if they were "necessary" to replace lost or damaged property as set out in Paragraph 7.a.(4)(c).

¶ 28 Mount Zion argues the word "necessary" cannot be interpreted to require it to "replicate" the preexisting structure as a condition precedent to receiving replacement cost proceeds. Mount Zion is correct; there is nothing in the Policy requiring Mount Zion to rebuild the church, its office, and its kitchen in the exact same configuration as existed before the fire. But Church Mutual is not advancing such a narrow construction of the Policy.

¶ 29 Mount Zion further asks this Court to adopt a "functional similarity" test in determining whether its remodeling was "necessary." It argues it should be reimbursed the full cost of its upgraded kitchen because what it built was "functionally similar" to the property lost or damaged by fire. Mount Zion relies on several federal and out-of-state cases for this argument. See Fitzhugh 25 Partners, L.P. v. KILN Syndicate KLN 501, 261 S.W.3d 861 (Tex. App. 2008) (insured's contention that purchasing an office park was a "replacement" for a multi-family apartment complex destroyed by fire was rejected because the word "replacement" in an insurance policy inherently contains the element of functional similarity); Seeber v. Gen. Fire and Cas. Co., 19 N.E.3d 402, 411-12 (Ind. App. 2014) ("replacement" coverage did not permit insured to replace destroyed commercial property with residential condominiums because properties were not used for same purpose); SR Int'l Bus. Ins. Co., Ltd. v. World Trade Cent. Prop., LLC, 445 F. Supp. 2d 320, 333 (S.D.N.Y. 2006) (in the context of determining whether non-removable tenant improvements should be included in the insurer's hypothetical replacement cost estimate, the court said "replacement property need only be 'functionally similar' to its predecessor, [and] it is inevitable that certain elements of the destroyed property will not be reproduced.").

¶ 30 None of these cases address the meaning of "necessary to repair or replace lost or damaged property." Nor do they conclude that an insurer is legally obligated to reimburse an insured for the cost of improvements that did not pre-exist the fire.

¶ 31 We conclude the Policy does not impose on Church Mutual the obligation to pay for Mount Zion's remodeling choices just because the remodeled space serves the same function as the old. Church Mutual has the contractual right to evaluate each line item of Mount Zion's insurance claim and to determine (1) whether there was lost or damaged property; and (2) whether the amount spent by Mount Zion was necessary to repair or replace that lost or damaged property.

Affirmed.

WE CONCUR:

Smith, J.

Appelwick, C.J.


source: Caselaw Access Project

author: Verellen, J.

license: Public Domain

text:
    John T. SCOTT, Dec'd, Appellant, v. DEPARTMENT OF LABOR & INDUSTRIES, State of Washington, Respondent.
    No. 77862-5-I
    Court of Appeals of Washington, Division 1.
    FILED: March 25, 2019 Publication Ordered March 20, 2019
    Robert James Heller, Thomas Alfred Thompson, Walthew Law Firm, Po Box 34645, Seattle, WA, 98124-1645, for Appellant.
    Rebecca Kim Echols, Attorney at Law, Paul Michael Weideman, Attorney at Law, 800 Fifth Ave. Ste. 2000, Ms-tb-14, Seattle, WA, 98104-3188, for Respondent.
    PUBLISHED OPINION
   Verellen, J.

¶1 Under RCW 51.32.050(7), every worker who becomes eligible for permanent total disability benefits can elect one of three pension payment options under RCW 51.32.067. Option I provides a full monthly pension with no survivor benefits after the injured worker's death. Options II and III provide actuarially adjusted pension payments during the worker's lifetime and survivorship rights after the worker's death.

¶2 In 1992, the Department of Labor and Industries (the Department) determined John Scott was totally and permanently disabled and awarded him a pension. In response to a questionnaire from the Department, John accurately answered he did not have a spouse or dependents. John and Vera were married in 1994. After John passed away in 2015, Vera applied to the Department for survivor benefits.

¶3 Because John and Vera were not married when his pension went into effect, Option I was the only available option. And RCW 51.32.067 explicitly provides Option I does not include survivor benefits. Vera does not establish the Department had a duty to provide an election form or otherwise inform John that Options II and III would be available to him if he got married prior to the effective day of the pension. The trial court did not err when it determined Vera was not entitled to survivor benefits.

¶4 Therefore, we affirm.

FACTS

¶5 Vera is the surviving spouse of John Scott. Although John and Vera had lived together since the 1970s, they did not marry until 1994. In 1987, John suffered an industrial injury. On June 5, 1992, the Department determined John was totally and permanently disabled and awarded him a pension, effective June 28, 1992. In response to a questionnaire from the Department, John accurately answered he did not have a spouse or dependents. As a result, the Department enrolled John in Option I under RCW 51.32.067, a full monthly pension with no survivor benefits after the injured worker's death.

¶6 Vera and John remained married until 2015, when John died from natural causes, unrelated to his industrial injury. After John's death, Vera applied to the Department for survivor benefits. The Department denied her application because "Mr. Scott was placed on pension effective 06/28/1992, at the time he was placed on pension he was single and he was not eligible to elect an option under RCW 51.32.067 ; therefore, the surviving spouse is not eligible for benefits."

¶7 Vera appealed the Department's decision to the Board of Industrial Appeals. The industrial appeals judge entered a proposed summary judgment order affirming the Department's denial of Vera's application for survivor benefits. Vera petitioned for review by the full three-member Board. The Board adopted the order of the industrial appeals judge and affirmed the Department's denial. Vera appealed to superior court. On November 17, 2017, the superior court adopted the Board's findings and affirmed the Board's decision to grant summary judgment.

¶8 Vera appeals.

ANALYSIS

¶9 Vera argues the trial court erred when it determined she was not entitled to survivor benefits.

¶10 We review the decision of the trial court in an industrial insurance case, not the decision of the Board. The trial court's ruling is subject to the ordinary civil appeal rules. We review summary judgment motions de novo. Summary judgment is appropriate if "there is no genuine issue as to any material fact and [ ] the moving party is entitled to judgment as a matter of law."

¶11 Under RCW 51.32.050(7), "[f]or claims filed on or after July 1, 1986, every worker who becomes eligible for permanent total disability benefits shall elect an option as provided in RCW 51.32.067." RCW 51.32.067 provides three pension payment options. Under Option I, "[a]n injured worker selecting this option shall receive the benefits provided by RCW 51.32.060, with no benefits being paid to the worker's surviving spouse, children, or others." Options II and III provide actuarially adjusted pension payments during the injured worker's lifetime and survivor benefits after the worker's death. Because Options II and III provide survivor benefits to an injured worker's spouse or dependents, the availability of these options necessarily depends on an injured worker having a spouse or dependents.

¶12 After the Department awarded John a pension on June 5, 1992 and before the pension became effective on June 28, 1992, John accurately declared he did not have a spouse or dependents. As a result, the Department enrolled him in Option I, the only available option to an injured worker with no spouse or dependents. RCW 51.32.067 explicitly provides that Option I does not include survivor benefits.

¶13 Vera argues the Department had a duty to provide an election form or otherwise inform John that Options II and III would be available to him if he got married prior to the effective day of the pension. She relies on the Department's general authority to "[e]xercise all the powers and perform all the duties prescribed by law with respect to the administration of workers' compensation and medical aid in this state." But she fails to provide any statutory authority imposing such a duty on the Department.

¶14 Vera also relies on the principle of liberal construction. Although we resolve doubts in favor of the worker when construing chapter 51.32 RCW, the liberal construction doctrine applies only when a court must construe an ambiguous statute. Vera does not argue either RCW 51.32.050(7) or 51.32.067 is ambiguous. And in State Department of Labor & Industries v. Freeman, Division Three of this court determined "[t]he language of RCW 51.32.050(7) and RCW 51.32.067 is clear and unambiguous." ,

¶15 Vera fails to establish the Department has a duty to counsel an injured worker about the effect of marriage prior to the effective date of the pension. Vera also fails to establish the Department has a duty to provide an election form to an injured worker when that worker has only one option available. At oral argument, Vera focused on the provision in RCW 51.32.050(7) that the worker "shall elect an option" and the provisions in the Insurance Services Policy Manual that "[t]he department will provide eligible injured workers with pension option information" and "[a]n injured worker ... must select a pension option." But the premise underlying these provisions is that the injured worker has multiple options available. If a claimant has no spouse or dependents at the time the pension becomes effective, there is no election for the claimant to make. And there is no authority that the Department, rather than the claimant or claimant's counsel, must contemplate the potential for a change in that status in the few weeks before the effective date of the pension.

¶16 It is undisputed that John and Vera were not married on or before the effective date of John's pension and that John had no dependents. Option I was the only "option." The Department was not required to engage in any counseling about potential changes in John's status before the effective date of his pension.

¶17 Vera asks this court to retroactively change her husband's enrollment to Option II and award her survivor benefits. RCW 51.32.067 provides that an injured worker may switch from Options II or III to Option I if the worker's spouse dies or the worker and the spouse enter into a dissolution of marriage. But RCW 51.32.067 does not provide any authority for a change from Option I to Options II or III.

¶18 We conclude the trial court did not err when it determined Vera was not entitled to survivor benefits.

¶19 Therefore, we affirm.

WE CONCUR:

Chun, J.

Smith, J.

      For clarity, we refer to John Scott and Vera Scott by their first names.

      The parties do not dispute the underlying facts of this case. Both parties cite to the "Joint Stipulated Facts and Exhibits" filed before the Board of Industrial Appeals.

      Certified Board Record (CBR) at 104.

      Dillon v. Dep't of Labor & Indus., 186 Wash. App. 1, 6, 344 P.3d 1216 (2014) (citing Rogers v. Dep't of Labor & Indus., 151 Wash. App. 174, 179-81, 210 P.3d 355 (2009) ; RCW 51.52.140 ).

      RCW 51.52.140.

      State Dep't of Labor and Indus. v. Freeman, 87 Wash. App. 90, 93, 940 P.2d 304 (1997).

      CR 56(c).

      RCW 51.32.067(1).

      RCW 51.32.067(1)(a).

      RCW 51.32.067(1)(b-c).

      RCW 43.22.030(1).

      City of Bellevue v. Raum, 171 Wash. App. 124, 155, n.28, 286 P.3d 695 (2012).

      87 Wash. App. 90, 940 P.2d 304 (1997).

      Id. at 97, 940 P.2d 304.

      CBR at 111.

      See CBR at 25 (John was represented by counsel when he was awarded his pension in 1992).

      RCW 51.32.067(3) -(4).


author: Leach, J.

text:
    Linda CAMERON for Herself and as Personal Representative for the Estate of Gary R. Cameron, Deceased, Appellant, v. ATLANTIC RICHFIELD COMPANY a/k/a ARCO; Asbestos Corp., Ltd.; CBS Corporation, f/k/a Westinghouse Electric Corporation; Crown Cork & Seal Company, Inc.; Foster Wheeler Energy Corporation; General Electric Company; Lone Star Industries, Inc.; Metropolitan Life Insurance Company; Saberhagen Holdings, Inc.; and Transalta Centralia Generation LLC, Defendants,
    PacifiCorp, dba Pacific Power & Light Company, Respondent.
    No. 76663-5-I
    Court of Appeals of Washington, Division 1.
    FILED: May 13, 2019
    Kristin Margret Houser, Lucas William Hannum Garrett, William Joel Rutzick, Schroeter Goldmark Bender, 810 3rd Ave. Ste. 500, Seattle, WA, 98104-1657, for Appellant.
    William Edward Fitzharris Jr., David E. Chawes, Preg, O'Donnell & Gillett PLLC, 901 5th Ave. Ste. 3400, Seattle, WA, 98164-2026, Jill Diane Bowman, Stoel Rives LLP, 600 University St. Ste. 3600, Seattle, WA, 98101-3197, for Respondent.
    PUBLISHED OPINION
   Leach, J.

¶1 Gary Cameron died in 2012 of mesothelioma caused by asbestos exposure. Gary's wife, Linda Cameron, appeals a summary judgment dismissing her claims against PacifiCorp, one of the companies she claims exposed Gary to asbestos. She challenges the trial court's conclusion that the six-year construction statute of repose, which applies to improvements on real property, barred her claims. Cameron asserts that the current statute of repose applies and does not bar her claims. But the date of substantial completion of construction provides the operative date for application of the statute. Here, substantial completion occurred in 1972, so the 1967 version of the statute applies and bars her claims arising from construction activities but not those arising from PacifiCorp's status as a premises owner. We affirm in part, reverse in part, and remand for further proceedings.

FACTS

¶2 The parties do not dispute the following facts. Pacific Power & Light Company, PacifiCorp's predecessor (together, "PacifiCorp"), and seven other utility companies sponsored construction of the Centralia Steam Plant (Plant) in the 1970s. PacifiCorp contracted with Bechtel Corporation for engineering and construction management and for construction of the Plant. In 1970, Bechtel hired Owens Corning Fiberglass to install thermal insulation materials at the Plant. Asbestos was installed as part of the insulation. From April 26, 1971, to December 3, 1971, Gary Cameron worked at the Plant as a boilermaker. Construction finished in 1972. PacifiCorp retained its ownership interest in the Plant until 2000.

¶3 Gary was exposed to asbestos over the course of his career. He was diagnosed with mesothelioma in March 2012 and died in September 2012. Cameron sued PacifiCorp and others, claiming, in part, that a dangerous condition at PacifiCorp's facilities injured Gary. PacifiCorp asked the trial court to dismiss Cameron's claims against it on summary judgment. Cameron and PacifiCorp then agreed to address only the statute of repose issue and defer consideration of the remaining issues until the completion of additional discovery. The trial court granted PacifiCorp's dismissal request, concluding that the construction statute of repose barred Cameron's claims. Cameron appeals.

STANDARD OF REVIEW

¶4 This court reviews summary judgment orders de novo and performs the same inquiry as the trial court. Summary judgment is appropriate when the evidence, viewed in a light most favorable to the nonmoving party, shows no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law.

¶5 Statutory interpretation is a question of law that this court reviews de novo. When a statute is unambiguous, a reviewing court gives effect to the plain language of the statute.

ANALYSIS

¶6 Cameron makes three related claims: that the current version of the construction statute of repose applies to this case, that genuine issues of material fact exist about whether the statute bars her claims, and that no version of the statute bars her claims arising out of PacifiCorp's status as a premises owner. We disagree about the first two claims and agree on the third one.

¶7 "A statute of repose terminates the right to file a claim after a specified time even if the injury has not yet occurred." Two statutes comprise the construction statute of repose. RCW 4.16.300 defines the scope of the statute and describes those entitled to claim its protection. RCW 4.16.310 defines when this statute of repose bars a claim. Together, they bar certain claims arising from construction of any improvement upon real property that have not accrued within six years after substantial completion of construction.

¶8 The history of this statute of repose bears on the outcome of this case. The legislature first enacted it in 1967. In 1986, the legislature amended RCW 4.16.300 to exclude manufacturers from the statute's protections. In 2004, the legislature again amended this statute, this time removing the language about manufacturers and specifically identifying the persons protected by the statute. ¶9 The 1967 version of RCW 4.16.300 provided,

RCW 4.16.300 through 4.16.320 shall apply to all claims or causes of action of any kind against any person, arising from such person having constructed, altered or repaired any improvement upon real property, or having performed or furnished any design, planning, surveying, architectural or construction or engineering services, or supervision or observation of construction, or administration of construction contracts for any construction, alteration or repair of any improvement upon real property.[ ]

¶10 The 1986 version provided,

RCW 4.16.300 through 4.16.320 shall apply to all claims or causes of action of any kind against any person, arising from such person having constructed, altered or repaired any improvement upon real property, or having performed or furnished any design, planning, surveying, architectural or construction or engineering services, or supervision or observation of construction, or administration of construction contracts for any construction, alteration or repair of any improvement upon real property. This section is intended to benefit only those persons referenced herein and shall not apply to claims or causes of action against manufacturers. [ ]

¶11 In 2004, the legislature amended both RCW 4.16.300 and Laws of 1986, chapter 305, section 703. This amendment changed the description of the persons protected by the statute: "This section is specifically intended to benefit persons having performed work for which the persons must be registered or licensed under RCW 18.08.310, 18.27.020, 18.43.040, 18.96.020, or 19.28.041, and shall not apply to claims or causes of action against persons not required to be so registered or licensed." So the current version of the statute protects only persons registered or licensed as an architect, contractor, engineer or land surveyor, landscape architect, or electrician.

¶12 The 1967 version of RCW 4.16.310 provided,

All claims or causes of action as set forth in RCW 4.16.300 shall accrue, and the applicable statute of limitation shall begin to run only during the period within six years after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later. The phrase "substantial completion of construction" shall mean the state of completion reached when an improvement upon real property may be used or occupied for its intended use. Any cause of action which has not accrued within six years after such substantial completion of construction, or within six years after such termination of services, whichever is later, shall be barred: Provided, That this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues.[ ]

¶13 The 1986 (current) version of RCW 4.16.310 provides,

All claims or causes of action as set forth in RCW 4.16.300 shall accrue, and the applicable statute of limitation shall begin to run only during the period within six years after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later. The phrase "substantial completion of construction" shall mean the state of completion reached when an improvement upon real property may be used or occupied for its intended use. Any cause of action which has not accrued within six years after such substantial completion of construction, or within six years after such termination of services, whichever is later, shall be barred: Provided, That this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues. The limitations prescribed in this section apply to all claims or causes of action as set forth in RCW 4.16.300 brought in the name or for the benefit of the state which are made or commenced after June 11, 1986. [ ]

The 1967 Version of the Construction Statute of Repose Applies

¶14 The parties dispute which version of the statute of repose applies to Cameron's claim. She asserts that the current statute applies. She contends that the date her claim accrued, 2012, determines which version of the statute applies. She also claims that the 2004 amendment to RCW 4.16.300 applies to actions filed after August 1, 1986, so the current statute applies. Alternatively, Cameron asserts that RCW 4.16.300 applies retroactively. We disagree.

¶15 First, Cameron relies on Washburn v. Beatt Equipment Co. Washburn suffered serious injuries from a 1986 propane fuel system explosion. Beatt installed this propane system in 1969. Because our Supreme Court applied the 1986 statute of repose, the statute in effect when Washburn's claim accrued, and not the 1967 version, Cameron asserts Washburn shows that the statute in effect when a claim accrues controls. But in Washburn, the issues before the court about the statute of repose concerned whether the pipeline was an "improvement" on real property and whether the contractor qualified as a "manufacturer" of the pipeline system; the parties did not contest which version of the statute applied to Washburn's claim. And the Washburn opinion contains no analysis of this issue.

¶16 While not relied on by Cameron for this issue, two other reported Washington cases apply the statute of repose in effect when the injured party's claim accrued. In neither case did the court analyze the issue before this court.

¶17 In Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., a property owner and lessee sued a contractor for property damage allegedly caused by faulty installation of a refrigeration system substantially completed in 1961. This predated the first statute of repose. The refrigeration system failed in 1968. Our Supreme Court applied the 1967 statute, the one in effect when plaintiffs' claims accrued, to bar the claim. No party claimed that this statute did not apply.

¶18 And in Pinneo v. Stevens Pass, Inc., the court applied the 1967 statute to a project substantially completed in 1960. But the court considered only one issue, whether a ski lift constituted, as a matter of law, " 'an improvement upon real property.' " No party claimed that the 1967 statute did not apply.

¶19 The parties have cited only one Washington state court decision analyzing the relationship between the statute of repose's bar, the date of completion, and the date a plaintiff's claim accrues. In 1000 Virginia Ltd. Partnership v. Vertecs Corp., decided after Washburn, Yakima Fruit, and Pinneo, our Supreme Court described an application of the statute of repose. It stated, "[I]f, for example, a negligence claim against a contractor arising out of the construction of a building does not accrue until seven years after substantial completion, it is barred by RCW 4.16.310 because it did not accrue within the six-year period of the statute of repose." In the court's example, the statute of repose bars a negligence claim before it accrues. This result depends upon the date of substantial completion, not the date the plaintiff's claim accrues. Because Washburn, Yakima Fruit, and Pinneo provide no analysis of the issue before this court and 1000 Virginia does, we follow that guidance about the operation of a statute of repose. A court looks to the date of substantial completion to determine which version of the statute of repose applies. ¶20 Cameron also cites the principle that a court "look[s] to the subject matter regulated by the statute and considers its plain language to determine the precipitating or triggering event." RCW 4.16.310 states that it does not apply to "any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues." She maintains that because ownership or tenancy may be relinquished or regained, it is not possible to determine whether the statute applies in any one instance until a claim actually accrues.

¶21 As the trial court aptly noted, Cameron's argument that the statute cannot be applied until a claim has accrued "conflicts with the purpose of the statu[t]e of repose, which was to bar claims that arise after completion of construction, even if no injury had yet occurred." Because the date of substantial completion starts the six-year period after which a person's claim is barred, the subject matter and plain language of the statute support using the date of substantial completion to determine which version of the statute of repose applies. Here, the Plant was substantially complete by 1972. In 1972, the 1967 statute applied. Thus, the 1967 version of the statute of repose applies.

¶22 Cameron additionally claims the 2004 amendment applies to all actions filed after August 1, 1986. She correctly notes that the legislature's 2004 amendment revised both RCW 4.16.300 and section 703 of Laws of 1986, chapter 305. She reasons that the 2004 amendment to RCW 4.16.300 incorporates the effective date of the 1986 amendment. This argument ignores the plain language of the relevant legislation and could lead to absurd results.

¶23 The legislature included the 1986 amendment to RCW 4.16.300 as section 703 of Laws of 1986, chapter 305, an act that made substantial changes to tort law across many statutes. Section 910 of this act states, in relevant part, "[T]his act applies to all actions filed on or after August 1, 1986." It describes the effective date of the act and says nothing about the effective date of future amendments to the statutes amended by the act. Cameron's proposed construction would make section 910 apply to all future amendments to any statute amended by chapter 305 to make them also apply to all actions filed on or after August 1, 1986. Section 910 says nothing about future amendments, let alone their effective dates. Cameron does not explain how a court could apply a 2004 amendment to a statute to an action filed after August 1, 1986, and fully resolved before 2004. While her argument would require this, the legislature could not have intended this meaning and used no words supporting it.

¶24 In Washington, an act takes effect 90 days after the legislative session in which the legislature that enacted it adjourns unless the legislature specifies a different effective date. The 2004 amendment did not specify an effective date and explicitly amended only section 703 of Laws of 1986, chapter 305, not section 910 of Laws of 1986, chapter 305. Current RCW 4.16.300 applies to claims with an operative date any time after the effective date of the 2004 amendment.

¶25 Alternatively, Cameron claims that the current statute applies retroactively. A court presumes that a statute operates prospectively unless the legislature indicates that it operates retroactively. But a statutory amendment is retroactive, if constitutionally permissible under the circumstances, when "(1) the Legislature explicitly provides for retroactivity; (2) the amendment is 'curative'; or (3) the statute is 'remedial.' " Cameron contends that the 2004 amendment to RCW 4.16.300 satisfies all three of these criteria.

¶26 First, she again asserts that the 2004 amendment incorporates the effective date of the 1986 amendment to show that the legislature explicitly provided for retroactivity. But we have rejected this claim. Cameron also cites language from the House Bill Report (HBR) on the 2004 amendment stating that the amendment would restore the original legislative intent of the statute, but the report says nothing about retroactivity and the act adopted by the legislature did not explicitly provide for retroactivity.

¶27 Next, Cameron maintains that the 2004 amendment is curative and remedial because the HBR and testimony in support of the bill indicated that the legislature intended the amendment to clarify the meaning of "manufacturers" in the 1986 amendment. " 'A curative amendment clarifies or technically corrects an ambiguous statute.' " " 'A statute is remedial when it relates to practice, procedure, or remedies and does not affect a substantive or vested right.' " "An amendment is curative and remedial if it clarifies or technically corrects an ambiguous statute without changing prior case law constructions of the statute." Cameron relies on New Grade International, Inc. v. Scott Technologies, in which the Federal District Court for the Western District of Washington held that the 2004 amendment clarified the former statute and was thus retroactive. The court reasoned that the legislative history showed that the legislature intended for the amendment to distinguish contractors from manufacturers.

¶28 We disagree with New Grade. "[A] statute fixing a time limitation upon the assertion of a right or the enforcement of an obligation will not be held by construction to operate retroactively, and it will be deemed so to operate only when, by its plain terms or by necessary implication, such intention is apparent." The 2004 amendment neither states nor makes apparent any legislative intent that the statute applies retroactively. It limited application of RCW 4.16.310 to those licensed professionals named in RCW 4.16.300 and did not clarify or correct ambiguous language; it substantively changed the law, so it was not curative. In addition, because statutes of repose are substantive law and the 2004 amendment made a substantive change, the amendment did not simply change a remedy and thus was not remedial.

¶29 Because the operative date of the statute of repose is the date of substantial completion of construction and the 2004 amendment to the statute does not apply retroactively, the 1967 version of the statute of repose applies here.

The 1967 Version Bars Only Cameron's Claims Arising from Construction

¶30 Cameron contends that even the 1967 version of the statute does not bar her claims because it does not protect premises owners sued in their capacity as premises owners. To the extent that Cameron bases her claims on activities arising out of PacifiCorp's activities as a premises owner and not on its acts or omissions arising out of its construction activities, we agree.

¶31 Cameron relies on Pfeifer v. City of Bellingham, in which our Supreme Court held that the construction statute of repose did not bar claims against the defendant construction company that was both the seller and builder of an apartment complex because the claim arose from the company's sales activities. The court explained, "[T]he focus is on activities. If the claim arises from those activities, the person is covered; if it does not, he is not covered. Here the claim arises from concealment [of a known dangerous condition] during sale-the activity of selling is not covered."

¶32 Here, Cameron sued PacifiCorp for both its construction activities and its activities as a premises owner.

She alleged and the record shows that PacifiCorp performed engineering and construction observation services during the construction of the Plant and was not solely an uninvolved premises owner. But she also alleges that PacifiCorp "negligently failed to take corrective action to eliminate a dangerous condition that the defendants knew or in the exercise of reasonable care should have known existed at their facilities."

¶33 Former RCW 4.16.300 protects persons or entities that performed engineering services or observation of construction for any construction of an improvement upon real property. Consistent with our Supreme Court's reasoning in Pfeifer, because Cameron's claims arise from activities covered by the statute and activities not covered, the 1967 version of the statute applies to bar claims arising out of PacifiCorp's construction activities but not those arising out of its status as a premises owner.

¶34 PacifiCorp contends that RCW 4.16.310 bars claims arising out of its activities as a premises owner because it did not own the Plant when Cameron's claim accrued. PacifiCorp relies on this proviso in the statute, "Provided , That this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues." This proviso only deprives an owner of a defense to claims arising out of construction activities when that owner still owns the property when the plaintiff's claim accrues. It does not provide any protection against claims arising out of other activities.

¶35 The trial court should not have dismissed Cameron's claims arising out of PacifiCorp's status as a premises owner as barred by the statute of repose.

Policy Considerations

¶36 Cameron also contends that the legislature did not intend that the statute of repose applies to claims for latent occupational diseases such as mesothelioma. She states that no Washington appellate case has held that Washington's construction statute of repose applies to bar a claim for an occupational disease similar to mesothelioma. And she asserts that because mesothelioma has a latency period well beyond six years, application of the statute of repose to a mesothelioma plaintiff could cause a denial of access to the courts and raise constitutional concerns. Because this court generally will not consider issues raised for the first time on appeal, we decline to review this claim.

The Trial Court's Denial of Cameron's Request for a Continuance

¶37 Last, Cameron claims that because PacifiCorp asserted for the first time in its reply brief to the trial court that the current statute of repose bars her claims, the trial court committed error when it relied, in part, on this argument in granting PacifiCorp summary judgment and in denying her request for a continuance to obtain discovery about the issue. We disagree.

¶38 By granting PacifiCorp's summary judgment motion and dismissing Cameron's claims against PacifiCorp, the trial court denied Cameron's request for a continuance contained in her response to PacifiCorp's reply. This court reviews a trial court's denial of a request for a continuance for an abuse of discretion.

¶39 A court may deny a motion for a continuance when

(1) the requesting party does not offer a good reason for the delay in obtaining the desired evidence; (2) the requesting party does not state what evidence would be established through the additional discovery; or (3) the desired evidence will not raise a genuine issue of material fact.[ ]

¶40 King County Super. Ct. Local Civ. R. 7(b)(4)(G) states, "[A]ny reply material which is not in strict reply[ ] will not be considered by the court over objection of counsel except upon the imposition of appropriate terms, unless the court orders otherwise." In Cameron's memorandum in opposition to PacifiCorp's motion for summary judgment, she claimed that the current statute applies. In reply, PacifiCorp asserted the same arguments that it does on appeal and stated that even if the current statute applies, it still bars Cameron's claim. Consistent with the local rule, PacifiCorp's reply directly responded to Cameron's argument that the current statute does not bar her claim. Thus, the trial court could consider PacifiCorp's arguments and did not abuse its discretion by denying Cameron's continuance.

CONCLUSION

¶41 We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. The 1967 version of the construction statute of repose applies to bar Cameron's claims arising out of PacifiCorp's construction activities but not those arising out of its acts or omissions as a premises owner.

WE CONCUR:

Chun, J.

Dwyer, J.

      For purposes of clarity, we use Gary Cameron's first name and Linda Cameron's surname.

      RCW 4.16.300, .310.

      Life Designs Ranch, Inc. v. Sommer, 191 Wash. App. 320, 327, 364 P.3d 129 (2015).

      Life Designs, 191 Wash. App. at 327, 364 P.3d 129 ; CR 56(c).

      Williams v. Tilaye, 174 Wash.2d 57, 61, 272 P.3d 235 (2012).

      Parkridge Assocs. v. Ledcor Indus., Inc., 113 Wash. App. 592, 602, 54 P.3d 225 (2002).

      Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt & Nichols-Kiewit Constr. Co., 176 Wash.2d 502, 511, 296 P.3d 821 (2013).

      Laws of 1967, ch. 75, § 1, 2 (former RCW 4.16.300, .310 (1967)).

      Laws of 1986, ch. 305, § 703 (former RCW 4.16.300 (1986)).

      Laws of 2004, ch. 257, § 1 (RCW 4.16.300 ).

      Laws of 1967, ch. 75, § 1 (former RCW 4.16.300 (1967)).

      Laws of 1986, ch. 305, § 703 (former RCW 4.16.300 (1986)). The underlined portion represents the 1986 amendment.

      Laws of 2004, ch. 257, § 1 (RCW 4.16.300 ).

      RCW 18.08.310, .27.020, .43.040, .96.020; RCW 19.28.041.

      Laws of 1967, ch. 75, § 2 (former RCW 4.16.310 (1967)).

      Laws of 1986, ch. 305, § 702 (former RCW 4.16.310 (1986)). The underlined portion represents the 1986 amendment. In 2002, the legislature added a provision to former RCW 4.16.310 about written notice that is not relevant here. Laws of 2002, ch. 323, § 9 (RCW 4.16.310 ).

      120 Wash.2d 246, 840 P.2d 860 (1992).

      Washburn, 120 Wash.2d at 252, 840 P.2d 860.

      Washburn, 120 Wash.2d at 252-54, 840 P.2d 860.

      Washburn, 120 Wash.2d at 251, 253-54, 840 P.2d 860.

      81 Wash.2d 528, 529-30, 503 P.2d 108 (1972).

      Yakima Fruit, 81 Wash.2d at 529-30, 503 P.2d 108.

      14 Wash. App. 848, 545 P.2d 1207 (1976).

      Pinneo, 14 Wash. App. at 850, 545 P.2d 1207 (quoting RCW 4.16.300).

      158 Wash.2d 566, 575, 146 P.3d 423 (2006).

      1000 Virginia, 158 Wash.2d at 575, 146 P.3d 423.

      In re Estate of Haviland, 177 Wash.2d 68, 75, 301 P.3d 31 (2013).

      Laws of 2004, ch. 257, § 1 (RCW 4.16.300 ).

      Laws of 1986, ch. 305, § 910.

      Hallin v. Trent, 94 Wash.2d 671, 675, 619 P.2d 357 (1980) ; see Wash. Const, art. II, § 41.

      Densley v. Dep't of Ret. Sys., 162 Wash.2d 210, 223, 173 P.3d 885 (2007).

      1000 Virginia, 158 Wash.2d at 584, 146 P.3d 423 (retroactive application may not " 'run afoul of any constitutional prohibition' ") (internal quotation marks omitted) (quoting McGee Guest Home, Inc. v. Dep't of Soc. & Health Servs., 142 Wash.2d 316, 324, 12 P.3d 144 (2000) ).

      Densley, 162 Wash.2d at 223, 173 P.3d 885 (internal quotation marks and citations omitted) (quoting State v. T.K., 139 Wash.2d 320, 332, 987 P.2d 63 (1999) ).

      State v. Wilcox, 196 Wash. App. 206, 212, 383 P.3d 549 (2016) (quoting State v. Smith, 144 Wash.2d 665, 674, 30 P.3d 1245 (2001) ).

      1000 Virginia, 158 Wash.2d at 586, 146 P.3d 423 (quoting Miebach v. Colasurdo, 102 Wash.2d 170, 181, 685 P.2d 1074 (1984) ).

      Barstad v. Stewart Title Guar. Co., 145 Wash.2d 528, 537, 39 P.3d 984 (2002).

      2004 WL 5571416 (W.D. Wash. Nov. 30, 2004) (court order), aff'd, 205 F. App'x 571 (9th Cir. 2006).

      New Grade, 2004 WL 5571416, at *2-4.

      Lane v. Dep't of Labor & Indus., 21 Wash.2d 420, 423, 426, 151 P.2d 440 (1944) ("There is no constitutional inhibition against the revival of a barred remedy.").

      Rice v. Dow Chem. Co., 124 Wash.2d 205, 212, 875 P.2d 1213 (1994) ("The general authority is that statutes of repose are to be treated not as statutes of limitation, but as part of the body of a state's substantive law in making choice-of-law determinations.").

      112 Wash.2d 562, 564-65, 569, 772 P.2d 1018 (1989).

      Pfeifer, 112 Wash.2d at 569, 772 P.2d 1018.

      RAP 2.5(a).

      Tellevik v. Real Prop. Known as 31641 W. Rutherford St., 120 Wash.2d 68, 90, 838 P.2d 111, 845 P.2d 1325 (1992).

      Tellevik, 120 Wash.2d at 90, 838 P.2d 111, 845 P.2d 1325.


author: DAVIS, Chief Justice.

text:
    Rex RAMMELL, individually, Appellant (Plaintiff), v. MOUNTAINAIRE ANIMAL CLINIC, P.C.; Paul Zancanella, individually; and Vicky Zancanella, individually, Appellees (Defendants).
    S-18-0239
    Supreme Court of Wyoming.
    May 21, 2019
    Representing Appellant: Pro se
    Representing Appellees: Richard H. Honaker, Honaker Law Offices, LC, Rock Springs, Wyoming
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   DAVIS, Chief Justice.

[¶1] Rex Rammell, D.V.M., filed a complaint against his former employer, Mountainaire Animal Clinic, P.C., its sole shareholder and president, Paul Zancanella, D.V.M., and its office manager, Vicky Zancanella, collectively Mountainaire, asserting multiple claims including breach of express contract and tortious interference with contract. The district court entered partial summary judgment against Dr. Rammell on all his claims except the breach of express contract claim. Shortly before trial, it dismissed that claim as a sanction for willful obstruction of discovery and fraud upon the court. Dr. Rammell appeals the summary judgment ruling on his tortious interference claim and the dismissal of his breach of express contract claim. We affirm.

ISSUES

[¶2] Dr. Rammell presents six issues on appeal, which we summarize and restate as two issues.

1. Did the district court err in entering summary judgment against Dr. Rammell on his tortious interference claim?
2. Did the district court abuse its discretion in dismissing Dr. Rammell's remaining claims as a sanction for his discovery violations?

[¶3] Mountainaire addresses these two issues and offers two additional issues in response:

1. Does Appellant's false certification concerning the transcript of trial court evidence, and failure to include the transcript in the record, render his notice of appeal jurisdictionally defective, requiring dismissal of this appeal?
2. Should the trial court's decision be summarily affirmed because of Appellant's failure to present a proper record, including a transcript, for this appeal?

FACTS

[¶4] Mountainaire is a veterinary clinic located in Sweetwater County. Dr. Rammell is a veterinarian, and he was hired by Mountainaire pursuant to an employment agreement dated November 14, 2016. The agreement was for a term of one year and provided as follows concerning termination:

This agreement shall terminate immediately upon the occurrence of any of the following events:
A. The denial, refusal, suspension, revocation or restriction of Employee's license to practice veterinary medicine in the State of Wyoming.
B. The death of Employee.
C. The mutual agreement of Employer and Employee, in writing, to termination.
D. Disability of Employee which continues for a period of 30 consecutive days or more.
E. The failure or refusal of Employee to diligently perform the duties of his employment and provisions of this agreement.
F. The end of the term of this agreement.
G. Notwithstanding any of the foregoing, if Employer determines that continued employment of Employee is not desirable for any reason, such employment may be terminated, with or without cause, upon sixty (60) days prior written notice to Employee.

[¶5] On April 19, 2017, Dr. Zancanella, in his capacity as Mountainaire's president, met with Dr. Rammell and terminated his employment. On July 5, 2017, Dr. Rammell filed a complaint against Mountainaire and against Dr. Zancanella and Vicky Zancanella in their individual capacities. The complaint asserted claims for breach of express contract, breach of implied contract, tortious interference with contract, intentional infliction of emotional distress, and negligent infliction of emotional distress. Mountainaire answered and counterclaimed for breach of the employment agreement's non-compete clause and for a $ 10,000 salary advance it had made to Dr. Rammell. It also applied for and was granted a preliminary injunction enjoining Dr. Rammell from directly or indirectly providing services that would compete with Mountainaire within a fifty-mile radius of the clinic.

[¶6] On June 8, 2018, Mountainaire filed two summary judgment motions, one on its $ 10,000 claim for a salary advance refund, and the other against all of Dr. Rammell's claims. The district court granted Mountainaire summary judgment on all claims except a part of Dr. Rammell's breach of implied contract and his breach of express contract claims. Shortly thereafter, it granted Mountainaire's motion to reconsider the breach of implied contract ruling and entered summary judgment in its favor on that claim. That decision left only Dr. Rammell's breach of express contract claim for trial.

[¶7] A few weeks before the August 27, 2018 trial, Mountainaire filed a motion for an order to show cause as to why Dr. Rammell's remaining claim should not be dismissed. In support of its claim for dismissal, Mountainaire alleged that Dr. Rammell flagrantly violated the court's preliminary injunction by offering veterinary services within a few miles of the Mountainaire clinic, that he provided false discovery answers regarding those services, and that he self-issued invalid trial subpoenas. Mountainaire subsequently supplemented the motion with allegations that Dr. Rammell gave false discovery answers concerning income he had earned since the termination of his employment with Mountainaire.

[¶8] On August 15, 2018, the district court held an evidentiary hearing on Mountainaire's motion, and on August 20th, it issued its order ruling on the motion. The court found that Dr. Rammell had issued invalid subpoenas but that he had done so unintentionally, and it did not sanction him for that conduct. The court further found that Dr. Rammell had violated the preliminary injunction, but it concluded that the violation was not grounds for dismissal and otherwise ordered no sanction for it.

[¶9] With respect to discovery responses concerning income he had earned since his dismissal from Mountainaire, the court found the responses ranged from "evasive and misleading to outright false." For this discovery violation, the court dismissed Dr. Rammell's only remaining claim of breach of express contract. The court reasoned (footnote and citations omitted):

Plaintiff's intent to fraudulently conceal this information can be inferred from the circumstances. There is a broad pattern of deceit. And given his obvious self-interest to enlarge his potential damages by concealing mitigation, the inference of deliberate deceit is hard to escape. At the hearing Defendant argued "if he wanted to know if I personally was making money, he should have asked me that question. I mean, he could have easily put, are you - are you, Rex Rammell, receiving any money from veterinary income? And I would have said, yes. But that isn't what he asked." That is what Defendant asked. There is no meaningful, logical difference between that question and Defendant's discovery requests. In fact, Defendant asked the same thing five different ways so as to leave no room for exceptions, evasion or omission.
Plaintiff's degree of culpability is high. Having seen Plaintiff testify and had an opportunity to evaluate his demeanor, the Court believes his true position is exemplified by his most confident and certain testimony that "they were Wyoming Veterinary Center checks. I know it's a technicality, but it - LLCs are legal entities." His attempts to backpedal, such as his testimony that "this all could have come out in the trial, too. I mean, I wasn't trying to hide anything"-not that ambushing the opposing party at trial would excuse withholding evidence-were not credible. And his closing argument, "And to be right honest with you, the Douglas thing, it was a little extra cash. I really didn't think about it" was not supported by credible testimony. He had every opportunity to disclose this information. Instead he concocted a frivolous rationalization why disclosure was not required. Rather than assert his theory of non-discoverability, he deliberately concealed it, apparently confident he could justify himself if it were ever discovered. Since he concealed his withholding of this information, there was no opportunity to warn him that failure to comply with valid discovery requests would result in dismissal.
The degree of actual prejudice to Defendant is also high. On the eve of trial, Defendant fortuitously discovered Plaintiff has hidden evidence of mitigation of his damages, in violation of the Rules of Civil Procedure and three sets of discovery requests. Plaintiff's conduct created a substantial risk that if the jury verdict was in his favor, he would fraudulently recover greater damages than he was entitled to, misusing and interfering with the judicial process.
Finally, no lesser sanction than dismissal will suffice. The judicial process depends on transparency. Compliance with discovery is an essential element of justice. Plaintiff willfully failed to comply with his obligations to produce the evidence of damages sought by Defendant's discovery requests and in bad faith concealed his failure to comply. A less severe sanction would not sufficiently remedy Plaintiff's abusive conduct, as there is no way to ascertain whether he has concealed other crucial evidence, casting doubt on the reliability of any verdict in his favor. And a less severe sanction will not sufficiently punish and deter Plaintiff's dishonest conduct. The Court finds the complaint should be dismissed and judgment entered against Plaintiff under Rule 37 and/or under the inherent power of the Court to sanction fraud on the court.

[¶10] Dr. Rammell thereafter filed a timely notice of appeal to this Court. His notice of appeal contained a certification of transcript request, which stated that "[p]ursuant to W.R.A.P. 2.05(a) and 2.07(a)(4), Appellant, Rex Rammell[,] has ordered and made appropriate arrangements for payment of the transcript to be prepared in this matter." Handwritten next to that typed certification was the statement, "No transcript." In keeping with the handwritten notation, Dr. Rammell did not procure any transcripts for his appeal. He likewise did not indicate whether he intended to submit a statement of evidence or agreed statement, as required by W.R.A.P. 2.05(a).

DISCUSSION

[¶11] We will address first Mountainaire's argument that Dr. Rammell's failure to make a proper certification in compliance with W.R.A.P. 2.05 is a jurisdictional flaw that requires dismissal of his appeal.

A. Jurisdiction

[¶12] Mountainaire moved to dismiss Dr. Rammell's appeal, contending that he falsely certified that there were no transcripts from the proceedings below, and pointing out that his certification was otherwise not in compliance with W.R.A.P. 2.05. Mountainaire argued that Rule 2.05 is jurisdictional, and that the deficiencies in Dr. Rammell's certification therefore mandated dismissal of his appeal. We took Mountainaire's motion under advisement, and we now deny the motion. While we agree that the certification was deficient, we do not agree that Rule 2.05 is jurisdictional, and we decline to dismiss the appeal as a sanction for the deficiency.

[¶13] In response to Mountainaire's assertion that Dr. Rammell, through his handwritten "No transcript" note, falsely certified that there were no transcripts from the proceeding below, Dr. Rammell offered the following explanation:

Appellant followed the example found on the W.R.A.P. page, but upon learning from the Clerk of District Court that transcript ordering was optional, Appellant made a notation that "no transcript" would be ordered, which was his prerogative, thereby making the certification null and void.

[¶14] Although both Dr. Rammell's written alteration and his explanation are misguided and wrong as a matter of law, we will show him the leniency we have the discretion to afford pro se litigants and accept that he did not intentionally misstate the record. See Zeitner v. Shank , 2012 WY 157, ¶ 11, 290 P.3d 180, 184-85 (Wyo. 2012) (quoting Young v. State , 2002 WY 68, ¶ 9, 46 P.3d 295, 298 (Wyo. 2002) (noting our policy to afford pro se litigants "some leniency from the stringent standards applied to formal pleadings drafted by attorneys").) This leaves the question of whether the deficiencies in the certification otherwise mandate dismissal.

[¶15] Rule 2.05 requires:

Concurrently with filing the notice of appeal, appellant must order and either make arrangements satisfactory to the court reporter for the payment for a transcript of the portions of the evidence deemed necessary for the appeal or make application for in forma pauperis status as provided in Rule 2.09. A certificate of compliance with this rule shall be endorsed upon the notice of appeal. If appellant does not intend to order a transcript, the certificate of compliance shall include a statement indicating whether appellant intends to procure a statement of evidence pursuant to Rule 3.03 or an agreed statement pursuant to Rule 3.08.

W.R.A.P. 2.05(a).

[¶16] Dr. Rammell's notice of appeal was timely filed but deficient because it did not contain a clear Rule 2.05 certificate of compliance, and it did not indicate whether he intended to procure either of the specified transcript substitutes. See W.R.A.P. 2.07(a)(4) (requiring notice of appeal to contain Rule 2.05 certificate). Rule 1.03 defines the consequences of failing to comply with our rules of appellate procedure and provides, in relevant part:

The timely filing of a notice of appeal, which complies with Rule 2.07(a), is jurisdictional. The failure to comply with any other rule of appellate procedure, or any order of court, does not affect the validity of the appeal, but is ground only for such action as the appellate court deems appropriate, including but not limited to: refusal to consider the offending party's contentions; assessment of costs; monetary sanctions; award of attorney fees; dismissal; and affirmance.

W.R.A.P. 1.03(a).

[¶17] Consistent with this rule, we have treated defects in an otherwise timely notice of appeal as grounds for sanction but not as jurisdictional. See, e.g. , Armstrong v. Wyo. Dep't of Environmental Quality , 2013 WY 53, ¶ 9, 300 P.3d 850, 851-52 (Wyo. 2013) (imposing sanction of dismissal for numerous rule violations including failure to include Rule 2.05 certificate of compliance in notice of appeal); Finch v. Pomeroy , 2006 WY 24, ¶¶ 2-4, 130 P.3d 437, 437-38 (Wyo. 2006) (summarily affirming where both notice of appeal and briefing failed to comply with rules); see also Cor v. Sinclair Serv. Co. , 2017 WY 116, ¶ 4, 402 P.3d 992, 994 (Wyo. 2017) (defects other than timely filing of a notice of appeal are discretionary grounds for sanction). We therefore disagree with Mountainaire that the defects in Dr. Rammell's notice of appeal mandate dismissal.

[¶18] Mountainaire alternatively asks us to summarily affirm as a sanction for failure to provide a hearing transcript. As it points out, this Court has held that if an appellant fails to designate a record adequate for our review, we will assume the district court's rulings were correct and summarily affirm. Rigdon v. Rigdon , 2018 WY 78, ¶ 15, 421 P.3d 1069, 1074 (Wyo. 2018). At issue is the transcript of the evidentiary hearing, after which the district court entered its sanction of dismissal. That transcript has no bearing on the court's earlier summary judgment ruling on Dr. Rammell's tortious interference claim, and so we decline to summarily affirm on the entire appeal. See Cor , ¶ 4, 402 P.3d at 994 (sanctions for failure to comply with appellate rules are discretionary). To the extent the lack of a transcript affects our consideration of the dismissal order, we will address that deficiency in our discussion of that ruling.

B. Summary Judgment on Tortious Interference Claim

[¶19] W.R.C.P. 56 governs summary judgment. We have described the obligations of the movant and nonmovant.

The party requesting summary judgment bears the initial burden of establishing a prima facie case that no genuine issue of material fact exists and that summary judgment should be granted as a matter of law. W.R.C.P. 56(c) ; Throckmartin v. Century 21 Top Realty , 2010 WY 23, ¶ 12, 226 P.3d 793, 798 (Wyo. 2010). Until the movant has made a prima facie showing that there are no genuine issues of material fact, the nonmovant has no obligation to respond to the motion with materials beyond the pleadings. Id .
Once a prima facie showing is made, the burden shifts to the party opposing the motion to present evidence showing that there are genuine issues of material fact. Boehm v. Cody Cntry. Chamber of Commerce , 748 P.2d 704, 710 (Wyo. 1987) (citing England v. Simmons , 728 P.2d 1137, 1140-41 (Wyo. 1986) ). The party opposing the motion must present specific facts; relying on conclusory statements or mere opinion will not satisfy that burden, nor will relying solely upon allegations and pleadings. Boehm , 748 P.2d at 710. However, the facts presented are considered from the vantage point most favorable to the party opposing the motion, and that party is given the benefit of all favorable inferences that may fairly be drawn from the record. [ Union Pacific R. Co. v. ] Caballo Coal Co. , [2011 WY 24,] ¶ 12, 246 P.3d [867] at 871 [ (Wyo. 2011) ].

Bogdanski v. Budzik , 2018 WY 7, ¶ 18, 408 P.3d 1156, 1160-61 (Wyo. 2018) (quoting Amos v. Lincoln Cty. Sch. Dist. No. 2 , 2015 WY 115, ¶ 15, 359 P.3d 954, 958-59 (Wyo. 2015) ).

[¶20] On appeal, this Court reviews a district court's grant of summary judgment de novo. We have said:

We review a district court's order granting summary judgment de novo and afford no deference to the district court's ruling. Thornock v. PacifiCorp , 2016 WY 93, ¶ 10, 379 P.3d 175, 179 (Wyo. 2016). This Court reviews the same materials and uses the same legal standard as the district court. Id . The record is assessed from the vantage point most favorable to the party opposing the motion ..., and we give a party opposing summary judgment the benefit of all favorable inferences that may fairly be drawn from the record. Id . A material fact is one that would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Id .

Wyo. Jet Center, LLC v. Jackson Hole Airport Bd. , 2019 WY 6, ¶ 10, 432 P.3d 910, 914 (Wyo. 2019) (quoting Reichert v. Daugherty , 2018 WY 103, ¶ 11, 425 P.3d 990, 994 (Wyo. 2018) ).

[¶21] Dr. Rammell's tortious interference claim was against Dr. Zancanella and Vicky Zancanella. The Zancanellas supported their motion for summary judgment on this claim with their affidavits. Dr. Zancanella's affidavit stated in relevant part:

2. Mountainaire Animal Clinic, P.C. is a Wyoming professional corporation formed by me in 1983, and operated continuously since then. I am its sole shareholder and president. ...
* * * *
4. In my capacity as president of Mountainaire Animal Clinic, P.C., I met with Dr. Rammell and terminated his employment on the morning of April 19, 2017.... Mountainaire Animal Clinic, P.C. has 27 employees, and many customers or animal owners. As president, I have worked very hard since 1983 to build up a competent and customer-oriented staff that works together as an effective team. I have also worked very hard since 1983 to earn the confidence of the animal owners who come to Mountainaire, and to treat our customers and their animals with courtesy, respect, and dignity. Because of Dr. Rammell's actions, the morale of Mountainaire's staff was seriously deteriorating. In my capacity as president of Mountainaire, I was concerned that Mountainaire would lose members of its staff who had been with us for many years. In addition, I was concerned that Mountainaire's customers would lose confidence in Mountainaire and in its ability to competently and courteously take care of their needs. ... By the morning of April 19, 2017, in my capacity as president of Mountainaire Animal Clinic, P.C., I had come to the conclusion that the best interests of Mountainaire required that Dr. Rammell's employment be terminated immediately. I did not want to harm Dr. Rammell in any way, but my paramount concern had to be for the best interests of Mountainaire Animal Clinic, P.C., its staff and customers.

[¶22] The record contains another affidavit of Dr. Zancanella, which was filed in support of Mountainaire's motion for summary judgment on its $ 10,000 salary advance claim. That affidavit included the following statement concerning the decision to terminate Dr. Rammell's employment:

6. In my capacity as president of Mountainaire Animal Clinic, P.C., I met with Dr. Rammell and terminated his employment on the morning of April 19, 2017. Only he and I were present. The decision to terminate Dr. Rammell's employment was solely made by me, as president of Mountainaire Animal Clinic, P.C.

[¶23] Vicky Zancanella's affidavit stated, in relevant part:

1. My name is Vicky Zancanella. I am the same person named in the above-entitled lawsuit as "Vicki Zancanella." I also use the name "Vicky Taylor."
2. I am married to Paul Zancanella, D.V.M. My husband is the sole shareholder and president of Mountainaire Animal Clinic, P.C., and he practices his profession of veterinary medicine through Mountainaire Animal Clinic, P.C., which offers veterinary and related services to the public.
3. At all times relevant to this lawsuit, I was employed by Mountainaire Animal Clinic, P.C. as its office manager.
4. Mountainaire Animal Clinic, P.C. hired Rex Rammell, D.V.M., to work as an employed veterinarian for a one-year term beginning November 14, 2016. Dr. Rammell's employment was terminated by Mountainaire Animal Clinic, P.C. on April 19, 2017.
5. Dr. Zancanella, as president of Mountainaire Animal Clinic, P.C., was the person who hired and the person who terminated Dr. Rammell. I did not make the decision to terminate Dr. Rammell, and I did not terminate Dr. Rammell's employment either individually or on behalf of Mountainaire Animal Clinic, P.C. I was not present at the time Dr. Rammell's employment was terminated.

[¶24] Dr. Rammell filed an opposition to the summary judgment motion, and concerning the tortious interference claim, he asserted that the facts were not undisputed. He alleged that he would prove at trial that he professionally and ethically performed his duties and that were it not for Vicky Zancanella's "rude and improper actions," he would still be working for Mountainaire. Dr. Rammell did not submit affidavits or any other supporting materials with his opposition. See W.R.C.P. 56(c)(1).

[¶25] We agree with Mountainaire that the district court properly entered summary judgment against Dr. Rammell on his interference claim. Tortious interference with contract requires proof of the following elements:

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

Gore v. Sherard , 2002 WY 114, ¶ 12, 50 P.3d 705, 710 (Wyo. 2002) (quoting Bear v. Volunteers of America, Wyoming, Inc. , 964 P.2d 1245, 1253 (Wyo. 1998) ).

[¶26] When such a claim is against a co-worker, a plaintiff must show that the co-worker acted outside the scope of his or her employment in inducing the breach and acted for his or her own personal benefit.

In considering a claim of intentional interference with a contract which was brought by one employee against a co-employee, we stated: "An employee of a company is not liable for the company's breach of contract on the theory that the employee induced such breach if he acts in his official capacity, on behalf of the company, and not as an individual for his own advantage." Davenport [v. Epperly ], 744 P.2d [1110] at 1114 [ (Wyo. 1987) ]. In other words, as long as the employee acted within the scope of his authority, his actions in recommending that another employee be discharged may be justified as a matter of law. Dynan v. Rocky Mountain Federal Savings and Loan , 792 P.2d 631, 641 (Wyo.1990).

Bear , 964 P.2d at 1254.

[¶27] With respect to Dr. Rammell's claim against Dr. Zancanella, the evidence was unrefuted that Dr. Zancanella was Mountainaire's president and sole shareholder, and the individual authorized to make Mountainaire's hiring and firing decisions. A claim that Dr. Zancanella tortiously interfered with Dr. Rammell's contract is tantamount to saying Dr. Zancanella induced himself to breach the contract. There was no third-party interference, which made the claim untenable.

[¶28] With respect to Dr. Rammell's claim against Vicky Zancanella, Dr. Rammell failed to refute the following with Rule 56(c) -required materials: that Dr. Zancanella alone made the decision to terminate his employment; that he did so out of concern for Mountainaire, and not for personal reasons; that Vicky Zancanella had no part in the decision; and that the Zancanellas were at all times acting within the scope of their employment. The record on summary judgment supports the district court's ruling, and we affirm it.

C. Dismissal as Sanction for Discovery Abuse

[¶29] We review a district court's ruling imposing discovery violation sanctions for an abuse of discretion.

District courts have discretion in determining the admissibility of evidence, controlling discovery, and selecting the proper means of sanctioning a discovery violation. In re Paternity of HLG , 2016 WY 35, ¶ 7, 368 P.3d 902, 904 (Wyo. 2016) ; Roemmich v. Roemmich , 2010 WY 115, ¶ 22, 238 P.3d 89, 95 (Wyo. 2010). "[A]s long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal." Wise v. Ludlow , 2015 WY 43, ¶ 42, 346 P.3d 1, 12 (Wyo. 2015). The appellant bears the burden of demonstrating the district court abused its discretion. Id .

Downs v. Homax Oil Sales, Inc. , 2018 WY 71, ¶ 19, 421 P.3d 518, 523 (Wyo. 2018).

[¶30] We are limited in our ability to review the district court's sanction of dismissal because Dr. Rammell failed to make the transcript of the evidentiary hearing on sanctions part of the record. We have said that "[t]he appellant bears the responsibility of bringing forth a sufficient record for the Court's review. When he does not, we assume that the district court's orders and rulings were correct, and summarily affirm the district court's decision." Rigdon , ¶ 15, 421 P.3d at 1074 (quoting Burnett v. Burnett , 2017 WY 57, ¶ 5, 394 P.3d 480, 482 (Wyo. 2017) ).

[¶31] Generally speaking, dismissal of an action is an authorized sanction for a discovery violation. W.R.C.P. 37(c)(1)(C). Given that authority, coupled with the constraints on our review created by the limited record, we summarily affirm the district court's dismissal of Dr. Rammell's breach of express contract claim.

[¶32] Affirmed.

      Dr. Rammell raises additional issues that we decline to address because they are mooted by our decision to uphold the district court's summary judgment and dismissal rulings. See Williams v. Matheny , 2017 WY 85, ¶ 15, 398 P.3d 521, 527 (Wyo. 2017) (under the mootness doctrine, courts do not rule on issues that will have no impact on the parties). This includes Dr. Rammell's challenges to the district court's finding that he violated the preliminary injunction enjoining him from offering veterinary services within a fifty-mile radius of Mountainaire, his claim that the court erred in ruling that no facts had been pled that would justify consideration of punitive damages, and his claim that the district court erred in denying his motion to compel discovery. With regard to the preliminary injunction violation, the court did not sanction Dr. Rammell for the violation, so our decision would have no practical effect one way or another. With regard to punitive damages, our ruling on the district court's dismissal forecloses any claim for those damages, so a ruling on that point would of course have no impact. With regard to Dr. Rammell's motion to compel, we find nothing in the record to suggest he asked for sanctions, so our ruling again would have no effect.

      Dr. Rammell was originally represented by counsel. On March 9, 2018, his attorney moved to withdraw on the ground that Dr. Rammell wished to represent himself, and the district court granted that motion. Dr. Rammell thereafter proceeded pro se .

      The ruling on the implied breach of contract claim was not challenged in this appeal.

      W.R.C.P. 56 allows a court to consider any materials in the record when ruling on a summary judgment motion. W.R.C.P. 56(c)(3).

      Rule 56(c)(1) provides:
      A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
      (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
      (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
      W.R.C.P. 56(c)(1).