author: STEPHENS, J.

text:
    GROUP HEALTH COOPERATIVE, a Washington nonprofit corporation, Petitioner, v. Nathaniel COON and Lori Coon, husband and wife, Respondents.
    No. 96516-1
    Supreme Court of Washington.
    Oral Argument Date: May 30, 2019 Filed August 22, 2019
    Catherine Wright Smith, Howard Mark Goodfriend, Smith Goodfriend PS, 1619 8th Avenue N, Seattle, WA 98109-3007, Michael H. Church, Hailey Louise Landrus, Attorney at Law, 720 W. Boone Avenue, Suite 200, Spokane, WA 99201-2560, for Petitioner.
    Eugene Melvin Moen, Chemnick Moen Greenstreet, 115 NE 100th Street, Suite 220, Seattle, WA 98125-8019, Ian S. Birk, Keller Rohrback, LLP, 1201 3rd Avenue, Suite 3200, Seattle, WA 98101-3052, for Respondents.
    Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Avenue, Suite 1300, Spokane, WA 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 NW Aspen Street, Camas, WA 98607-8302, for Amicus Curiae (Washington State Association For Justice Foundation)
   STEPHENS, J.

¶1 Group Health Cooperative (GHO) provided health insurance benefits to Nathaniel (Joel) Coon, who suffered a serious fungal infection and amputation following knee surgery at the Everett Clinic (TEC). The Coon family later settled potential negligence claims against TEC, and GHO initiated this lawsuit seeking reimbursement of its payments from the settlement proceeds. We must decide if genuine issues of material fact preclude summary judgment in favor of GHO regarding whether the settlement constituted full compensation to Coon, and whether GHO suffered prejudice from the Coons' failure to provide notice prior to finalizing the settlement. For the reasons explained below, we hold that summary judgment is inappropriate. We affirm the Court of Appeals and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶2 Coon lives in Snohomish, Washington, with his wife and two teenage daughters. In his early 20s, Coon started a residential lawn-care business that has seen steady growth over the years, even during a recession, and now includes an extensive commercial landscaping component. In addition to being heavily involved in the day-to-day operations of the business, Coon and his family have enjoyed a very active lifestyle with hobbies that include traveling, boating, fishing, and hunting. The Coon family's lives changed dramatically in 2012 after Coon developed a rare fungal infection that ultimately led to an above-knee amputation of his right leg.

Initial Injury and Infection

¶3 In January 2012, Coon heard a "pop" in his right knee while playing tug-of-war on ice; he experienced immediate pain and disability. Clerk's Papers (CP) at 153. Coon's initial surgery was performed on March 1, 2012 at TEC's Kemp Surgery Center; Coon tolerated the procedure well and was sent home the same day. Id. at 153-54.

¶4 Coon's recovery seemed normal until March 19, when he returned to TEC complaining of worsening pain and fever. Lab tests revealed an elevated white blood cell count, although an aspiration of Coon's knee showed no organisms on the gram's stain. The next day, Coon was admitted to Providence Regional Medical Center for further evaluation and initiation of antibiotic treatment. On March 26, the fungus Scedosporium prolificans (SP) was isolated from the knee aspiration fluid collected on March 19. SP, a fungus typically found in soil and polluted waters, is extremely rare, aggressive, and resistant to most known and United States Food and Drug Administration-approved antifungal agents.

¶5 After other cultures grew out of the SP, Coon began the difficult process of antifungal therapy. The University of Washington Medical Center (UWMC) analyzed the pathology of Coon's SP infection and confirmed resistance to antifungal agents. Throughout the month of April, physicians "contacted the [Centers for Disease Control], researched the literature, tried multiple antifungal agents, and consulted with nationally recognized [infectious disease] experts." Id. at 155. During these treatment regimens, Coon suffered severe nausea, vomiting, visual and auditory changes, and hallucinations, and developed Stevens-Johnson syndrome. Id. By the beginning of May it was clear that all attempted measures had failed to control the infection.

¶6 As his condition severely worsened, Coon consulted with orthopedic surgeons from the UWMC Department of Orthopedics, TEC, and Swedish Medical Center. All advised that they were unfamiliar with this type of aggressive fungal infection and lacked the requisite expertise to provide any new treatment plans. Id. at 155-56. As a result, Coon was referred to the Mayo Clinic for treatment. Id. at 156. From August to October, Coon was seen at the Mayo Clinic by leading orthopedic surgeons and infectious disease physicians. They attempted a combination of aggressive surgical procedures and antifungal therapies with no success. Eventually, Coon's leg had to be amputated due to extreme pain and limited function. The amputation was performed at the Mayo Clinic on October 17, 2012.

¶7 After the amputation, Coon returned to Washington for rehabilitation, prosthesis fitting, and physical therapy. Id. at 157. At the initiation of this litigation, Coon was still suffering from "ongoing phantom pain, stump pain, socket pain, low back and hip pain, trouble sleeping, and poor fit of his prosthesis with multiple falls." Id. In addition to the physical effects of the amputation, Coon has been severely limited in his ability to manage his business, and he struggles to return to the active lifestyle he enjoyed with his family.

Litigation and Settlement

¶8 During the period of treatment and recovery, TEC worked cooperatively with the Coons and paid a total of $322,645 for uncompensated medical expenses, travel, and accommodations.

Id. at 160. The Coons retained counsel to investigate any possible legal claims. Id. at 353.

¶9 Counsel for the Coon family went to great lengths to determine the source of the fungal infection, consulting with various experts. One theory, which evolved after discussions with an expert at the Mayo Clinic, was that the spores were potentially tracked into the operating room by a provider and then somehow managed to settle onto the graft tissue prior to insertion. Id. at 145. Another expert called into question the operation of the positive pressure ventilation system in the operating room, hypothesizing that the SP spores could have been transmitted from construction sites near the clinic. Id. at 146. After examining infection prevention standards at TEC, the history of fungal infections at TEC, and the presence of any permitted or unpermitted construction work during the procedure, the source of the SP fungal spores has yet to be determined. TEC rejects the above potential theories of liability and maintains that Coon was the likely carrier of the SP spores due to his "occupation as a landscaper." Id. at 159. Without extensive discovery to pinpoint an exact theory of causation, counsel concluded that the Coons had a res ipsa loquitur case. Id. at 145.

¶10 In addition to investigating potential theories of liability, counsel notified GHO in December 2013 that the Coons were being represented in connection with the injury and amputation. At that time, counsel requested a breakdown of GHO's subrogation lien for benefits provided to Coon. GHO responded that it had provided medical coverage in the amount of $372,634, in accordance with GHO's individual and family plan 2012 medical coverage agreement. Id. at 390-91. GHO asked counsel to " '[p]lease keep us informed regarding settlement negotiations and contact us prior to final settlement to confirm Group Health's subrogation amount.' " Id. at 392 (alteration in original).

¶11 In January 2014, counsel notified GHO that mediation of the Coons' claim against TEC was scheduled for February. GHO advised that Pamela Henley would be the GHO contact for the mediation. GHO maintains that while it was notified when the mediation was postponed until March 2014, it was never consulted during the mediation negotiations that led to the settlement.

¶12 On April 25, 2014, the Coons and TEC signed a settlement agreement for an additional $2 million. Id. at 254-56. In total, the Coons received $2,328,936.86 from TEC

for their negligence claims. Id. After receipt of the settlement, counsel for the Coons advised GHO that his firm would hold back the amount of GHO's lien in its trust account until May 30, 2014 and requested that GHO waive its reimbursement rights. Id. at 392. On May 30, 2014 at 3:39 p.m., Henley responded that GHO would not waive its reimbursement rights but would pay "its equitable apportionment of the collection costs and legal fees/expenses incurred to recover GH[O]'s subrogated interest." Id. Counsel informed Henley on June 2, 2014 that his firm had disbursed the remaining funds to the Coons. Id. at 393.

¶13 In 2016, GHO filed a complaint in Snohomish County Superior Court, seeking a determination of its subrogation rights and a judgment against the Coons for $372,634, the amount of medical expenses paid by GHO. Id. at 495. Both sides filed motions for summary judgment. The superior court granted GHO's motion and held:

Reasonable minds can reach but one conclusion as to the following facts:
a. Parties may decide by agreement what amounts to full compensation for their damages taking into account their chances of success or failure at trial.
....
c. Once a party settles a claim, the party has identified and accepted the amount of settlement as full compensation for the party's damages.
....
g. By settling for less than the available insurance policy limits in consideration of Defendants' evidence of damages versus risk of failure at trial, NATHANIEL COON and LORI COON's agreement to settle constitutes full compensation for their damages as a matter of law.

Id. at 511-12 (Order Granting Pl. GHO's Mot. for Summ. J.). The superior court entered judgment against the Coons in favor of GHO in the amount of $372,634 plus interest. Id. at 513.

¶14 The superior court separately denied a cross motion for summary judgment by the Coons, concluding that they "breached their duties under their contract" by settling with TEC "without protecting Plaintiff's subrogation interest." Id. at 516. The Coons appealed the superior court's order granting summary judgment to GHO but elected not to appeal the denial of their motion.

¶15 The Court of Appeals reversed the order granting summary judgment to GHO, holding that GHO had no valid and enforceable subrogation claim against the Coons. Grp. Health Coop. v. Coon, 4 Wash. App. 2d 737, 754, 423 P.3d 906 (2018). Because questions of fact exist regarding (1) whether the Coons received full compensation for their losses and (2) whether GHO was prejudiced by the Coons' breach of their insurance contract, the Court of Appeals reversed and remanded to the superior court for further proceedings. Id. GHO petitioned this court for review on both of these issues, and we granted review pursuant to RAP 13.4(b). Grp. Health Coop. v. Coon, 192 Wash.2d 1017, 433 P.3d 812 (2019).

ANALYSIS

¶16 When an appeal arises out of an order granting summary judgment, this court engages in the same inquiry as the trial court. Johnson v. Farmers Ins. Co. of Wash., 117 Wash.2d 558, 565, 817 P.2d 841 (1991). Summary judgment is proper only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." CR 56(c). "All facts and reasonable inferences are considered in the light most favorable to the nonmoving party, and all questions of law are reviewed de novo." Mountain Park Homeowners Ass'n v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994) (citation omitted).

¶17 Fundamentally, subrogation governs "how, if, and when an insurer may recover monies that it has paid to its insured." Brendan S. Maher & Radha A. Pathak, Understanding and Problematizing Contractual Tort Subrogation, 40 LOY. U. CHI. L.J. 49, 50 (2008). While the idea of subrogation began as an equitable doctrine, modem subrogation rights can be found in common law, contract, or statute. Id. at 59. Wherever they reside, it has long been recognized that such rights are subject to the principle that an insured must be "made whole" for any losses before an insurer may recover its payments:

[W]hile an insurer is entitled to be reimbursed to the extent that its insured recovers payment for the same loss from a [tortfeasor] responsible for the damage, it can recover only the excess which the insured has received from the wrongdoer, remaining after the insured is fully compensated for his loss.

Thiringer v. Am. Motors Ins. Co., 91 Wash.2d 215, 219, 588 P.2d 191 (1978) (emphasis added); see also Daniels v. State Farm Mut. Auto. Ins. Co., 193 Wash.2d 563, 576, 444 P.3d 582 (2019) (explaining "[w]hether in the context of a reimbursement request, offset, or direct subrogation action, a fault-free insured must be made whole for their entire loss before an insurer may offset or recover its own payments"). This "made whole" principle "embodies a policy deemed socially desirable in this state." Thiringer, 91 Wash.2d at 220, 588 P.2d 191.

A. Absent a Litigated Determination of Nonliability, Any Subrogation or Reimbursement Rights Asserted by an Insurer Are Subject to the "Made Whole" Doctrine

¶18 The relevant portion of the Coons' insurance contract states:

If the Injured Person's injuries were caused by a third party giving rise to a claim of legal liability against the third party and/or payment by the third party to the Injured Person and/or a settlement between the third party and the Injured Person, GHO shall have the right to recover GHO's Medical Expenses from any source available to the Injured Person as a result of the events causing the injury, including but not limited to funds available through applicable third party liability coverage and uninsured/underinsured motorist coverage. This right is commonly referred to as "subrogation." GHO shall be subrogated to and may enforce all rights of the Injured Person to the full extent of GHO's Medical Expenses.
GHO's subrogation and reimbursement rights shall be limited to the excess of the amount required to fully compensate the Injured Person for the loss sustained, including general damages.

CP at 93 (emphasis added). From this contract language, GHO argues that it is entitled to full recovery of its payments to Coon because there is no "third-party tortfeasor ... 'responsible in law' for the insured's injury." Pet. for Review at 10. This argument fails for several reasons.

¶19 Initially, as the Court of Appeals recognized, GHO's argument is internally contradictory. See Grp. Health Coop., 4 Wash. App. 2d at 750-51, 423 P.3d 906. Because GHO has identified its claim as a subrogation lien, GHO bears the burden to prove the existence of a third-party tortfeasor for the lien to attach. Id. at 751, 423 P.3d 906. If we accept GHO's assertion that there is no third-party tortfeasor within the meaning of its contract, which we do not, then the Court of Appeals is correct that GHO has no subrogation claim at all. Id. Quite simply, if Coon's injuries were not "caused by a third party giving rise to a claim of legal liability," CP at 93, then, by its own contract language, GHO is not entitled to any reimbursement. In such instance, the Coons would have simply received the benefit of their first-party insurance contract.

¶20 Second, GHO's argument wrongly assumes that an insured may contract for reimbursement without regard to limits on its subrogation rights. Pet. for Review at 8. GHO

cites to Mahler v. Szucs for this notion, but the Mahler court explicitly recognized that even when such contract language is employed, any right to reimbursement remains subject to Thiringer's "made whole" rule. 135 Wash.2d 398, 424, 957 P.2d 632 (1998).

State Farm had only a right of reimbursement from its insureds from the proceeds of the settlements. More important, State Farm had to await the outcome of the settlement process before attempting any recovery from the tortfeasors' insurers, because, pursuant to Thiringer, State Farm was not entitled to any recovery of its PIP payments until its insured had been made whole.

Id. ; see also Sherry v. Fin. Indem. Co., 160 Wash.2d 611, 619, 160 P.3d 31 (2007) ("An insurer is entitled to an offset, setoff, or reimbursement when both (1) the contract itself authorizes it and (2) the insured is fully compensated by the relevant 'applicable measure of damages.' " (quoting Barney v. Safeco Ins. Co. of Am., 73 Wash. App. 426, 429-31, 869 P.2d 1093 (1994) )). Even if this court were to find that GHO's right to direct reimbursement is not dependent on its right to subrogation, the fact remains that, if Coon has not been "made whole," no right to reimbursement ever arises. Certainly, absent full recovery by Coon, GHO does not have a right to be reimbursed from the Coons' settlement proceeds.

¶21 Ultimately, GHO's argument for reimbursement without regard to the "made whole" rule rests on equating this case with Cook v. USAA Casualty Insurance Co., 121 Wash. App. 844, 846, 90 P.3d 1154 (2004). There, the Court of Appeals found Thiringer inapplicable in a situation where there was, in fact, no third party liable for the insured's losses. Cook, 121 Wash. App. at 848-49, 90 P.3d 1154. Cook involved a house fire started by a gas water heater exhaust flue. Id. at 846, 90 P.3d 1154. Though the Cooks settled with their insurer, USAA, for policy limits, they elected to go to trial, claiming that the water heater installer's negligence was the cause of the fire. Id. At trial, however, the jury returned a verdict for the defense and found no negligence on the part of the installer. Id. Thus, there was no third-party tortfeasor from whom the insured could recover.

¶22 While the Cooks' litigation efforts were under way, USAA sold its subrogation interest to the water heater installer and a general contractor who was managing the Cooks' home construction, for $151,000. Id. The Cooks later demanded that USAA make them whole for their uninsured losses by giving them a portion of the proceeds that USAA garnered in its own settlement negotiations with the installer. Id. at 847, 90 P.3d 1154. The court rebuffed this unusual move, holding, "[W]hen the insured has no basis in tort or contract for a recovery, such as in the Cooks' situation, then Thiringer does not apply." Cook, 121 Wash. App. at 849, 90 P.3d 1154. Because the Cooks received the full benefit of their insurance contract and did not suffer a compensable injury (in the sense that there was a litigated determination of no liability), the court concluded that the Cooks were not entitled to share in USAA's (fortuitous) recovery. Id.

¶23 As the Court of Appeals recognized, there are three distinguishing factors between Cook and the present case. See Grp. Health Coop., 4 Wash. App. 2d at 752-53, 423 P.3d 906. First, in Cook, there was a litigated determination of nonliability: a jury decided the entity paying money to USAA (the installer) had no liability to the Cooks. Id. Here, in contrast, the Coons pursued claims of liability against TEC and settled based on a calculated risk decision involving the difficulty of proving a res ipsa loquitur case at trial. Second, the Cooks received the full benefit of their insurance policy from USAA because they received, and retained in full, their insurance proceeds. Id. at 753, 423 P.3d 906. In contrast, here, refusing to apply Thiringer "would deprive the Coons of the full benefit of their Group Health policy" by making them reimburse GHO without having been "made whole." Id. Lastly, and perhaps most importantly, the Cooks attempted to use Thiringer to recover monies from USAA that a court already determined they had no legal right to recover. Id. In other words, "the Cooks sought to benefit from USAA's more successful litigation strategy and transfer the economic consequences of their choice to USAA." Id. As the Coons correctly point out, unlike the Cooks, who never made a recovery to which the Thiringer priority rule could apply, their situation represents the typical settlement scenario to which the Thiringer priority rule has been applied over the last 40 years. Suppl. Br. of Resp'ts at 9.

¶24 The fact that the Coons' case involves a health insurance policy rather than a liability or casualty policy does not support a different outcome. Admittedly, there was some initial question early in our jurisprudence "about the extent to which insurance law applies" to health insurance contracts. Brown v. Snohomish County Physicians Corp., 120 Wash.2d 747, 753, 845 P.2d 334 (1993). In response, this court issued a clarification in Brown by noting, " '[T]he key factor' in Thiringer was 'the presence or absence of double recovery', not subrogation principles or premiums." Id. at 755, 845 P.2d 334 (citing Keenan v. Indus. Indem. Ins. Co. of Nw., 108 Wash.2d 314, 319, 738 P.2d 270 (1987) ). For this reason, we held, "[T]o the extent that the provisions [in a health insurance contract] operate to exclude coverage for medical expenses before the injured party is fully compensated for general damages and other special damages, the second floating layer of coverage is effectively negated by the provisions." Id. at 757, 845 P.2d 334.

¶25 This holding was later applied in British Columbia Ministry of Health v. Homewood, where the defendant was sued by her health insurer for reimbursement of medical payments made on her behalf. 93 Wash. App. 702, 703-04, 970 P.2d 381 (1999). The insurer claimed that it was entitled to reimbursement because Homewood received settlements from multiple joint tortfeasors "for less than their combined policy limits without the insurer's consent." Id. at 704, 970 P.2d 381. Because the case arose from an accident that resulted in multiple severe injuries, including permanent partial quadriplegia, Homewood estimated during mediation that her total damages exceeded $10 million. Id. at 705, 970 P.2d 381.

As in this case, however, Homewood faced substantial challenges in proving liability and, as a result, estimated that she would recover less than $5 million at trial. Id. For these reasons, Homewood accepted a structured settlement of just under $3 million (Canadian dollars). Id. at 706, 970 P.2d 381. Applying Thiringer, the court held, "[T]he insured must recoup his or her general damages from the tortfeasor before subrogation is permitted." Id. at 712-13, 970 P.2d 381. Homewood was therefore not obligated to reimburse her insurer the amount it paid for health care expenses because she had not been "made whole." Id. at 715, 970 P.2d 381. In light of Brown and Homewood, there is no room for GHO's argument that the "made whole" rule is inapplicable to its contractual subrogation rights in the health insurance context.

¶26 Applying the "made whole" rule, the superior court erred when it found, "By settling for less than the available insurance policy limits in consideration of Defendants' evidence of damages versus risk of failure at trial, NATHANIEL COON and LORI COON's agreement to settle constitutes full compensation for their damages as a matter of law ." CP at 512 (Order Granting Pl. GHO's Mot. for Summ. J.) (emphasis added). Settlement for less than the tortfeasor's policy limits does not create a presumption of full compensation. Liberty Mut. Ins. Co. v. Tripp , 144 Wash.2d 1, 22, 25 P.3d 997 (2001). Instead, acceptance of a settlement is simply some evidence that the insured has been fully compensated. Loc Thien Truong v. Allstate Prop. & Cas. Ins. Co., 151 Wash. App. 195, 201, 211 P.3d 430 (2009). Despite the superior court's ruling, GHO wisely conceded this point at oral argument. Wash. Supreme Court oral argument, Grp. Health Coop. v. Coon, No. 96516-1 (May 30, 2019), at 39 min., 39 sec., video recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. Because there is no presumption of full compensation from the acceptance of a settlement below policy limits, and because the Coons have met their burden of production by putting forth evidence that they have not been fully compensated, summary judgment was inappropriate. On remand, GHO bears the burden of proving full compensation. This is a question of fact, not of law.

¶27 In sum, the Coons have a right in contract and at common law to receive full compensation for their losses before GHO may seek reimbursement of its payments for Coon's medical expenses. The Coons' situation is analogous to that of every injured party who makes a calculated decision based on the risks of litigation to accept a settlement. We decline the invitation to upset almost four decades of insurance law in Washington State recognizing the wisdom and fairness of the "made whole" principle. We reverse the superior court order granting summary judgment to GHO and remand for further proceedings to determine, as a question of fact, whether the Coons have been fully compensated for their damages.

B. An Insurer Is Required To Prove That It Was Prejudiced before It Can Assert Any Reimbursement Rights Based on an Insured's Breach of Contract

¶28 Separate from the question of the applicability of the "made whole" rule, we must address GHO's argument that the Coons forfeited their rights under the insurance contract by breaching the contract. In an order denying the Coons' motion for summary judgment, the superior court found that the "Defendants breached their duties under their contract with Plaintiff" by failing to notify GHO prior to acceptance of a settlement. CP at 516 (Order Den. Defs.' Mot. for Summ. J.). GHO contends that, because of this breach, GHO is entitled, per the contract language, to full reimbursement as a matter of law. CP at 402. This is incorrect.

¶29 "It may be a peculiarity of insurance law, or a variant of general contract law, but not every breach discharges performance by the other party." Pilgrim v. State Farm Fire & Cas. Ins. Co., 89 Wash. App. 712, 724, 950 P.2d 479 (1997). As this court explained in Tripp, "[W]hile failure to give notice of settlement is a breach of the policy, it gives rise to a remedy only if the insurer is prejudiced by the lack of notice." 144 Wash.2d at 16, 25 P.3d 997. The burden of proof is on the insurer to demonstrate that it was prejudiced. Or. Auto. Ins. Co. v. Salzberg, 85 Wash.2d 372, 376, 535 P.2d 816 (1975). "To establish prejudice, the insurer must show 'concrete detriment ... together with some specific harm to the insurer caused thereby.' " Pilgrim, 89 Wash. App. at 724-25, 950 P.2d 479 (alteration in original) (quoting Canron, Inc. v. Fed. Ins. Co., 82 Wash. App. 480, 487, 918 P.2d 937 (1996) ). Determining prejudice from a policy breach is a question of fact for the jury and "will seldom be established as a matter of law." Dien Tran v. State Farm Fire & Cas. Co., 136 Wash.2d 214, 228, 961 P.2d 358 (1998).

¶30 Throughout the summary judgment proceedings, GHO did not offer any evidence of prejudice, CP at 389-407, but instead maintained that no showing of prejudice was required because the public policy considerations present in Tripp were not at issue. Pet. for Review at 19. GHO relies on Tran and Pilgrim to support its argument, but these cases compel the opposite conclusion. Tran, 136 Wash.2d at 217, 961 P.2d 358 ; Pilgrim, 89 Wash. App. at 714, 950 P.2d 479. Both Tran and Pilgrim involved allegations of insurance fraud, and the court not only analyzed the issue of prejudice but specifically found that the insurer had been prejudiced as a matter of law. Tran, 136 Wash.2d at 231, 961 P.2d 358 ("Tran's refusal to submit the requested financial information, an act which breached the cooperation clause and impeded State Farm's ability to investigate the claim, caused prejudice."); Pilgrim, 89 Wash. App. at 725, 950 P.2d 479 ("The Pilgrims' refusal to disclose relevant financial information prejudiced State Farm as a matter of law."). The Court of Appeals explained in Pilgrim, "In Washington, however, the rule is well established. In every cooperation clause, notice clause, and 'no settlement clause' case, where the prejudice issue has been raised, the court has analyzed prejudice." 89 Wash. App. at 723, 950 P.2d 479. Consistent with these cases and our long-standing precedent, we reiterate that an insurer is entitled to relief based on an insured's breach of contract only if, and to the extent, it can demonstrate prejudice resulting from the breach.

¶31 Here, questions of fact exist regarding whether GHO was prejudiced by the Coons' failure to provide notice prior to finalizing the TEC settlement. By its own admission, GHO was advised by the Coons' attorney that the Coons would be proceeding to mediation with TEC. CP at 405. GHO was also advised when the mediation was postponed. Id. While GHO was not consulted prior to acceptance of the final settlement, it offered no evidence of prejudice that resulted from this failure to consult. CP at 389-402. Importantly, there was no evidence that informing GHO of the Coons' intent to enter into the settlement on Friday would have altered the parties' disagreement about the "made whole" rule. Nor did GHO offer evidence that it could have done anything to obtain a greater settlement had it been timely notified. It may be that evidence of prejudice was not produced in light of the superior court's ruling, and therefore, further proceedings are warranted. In accordance with Tripp, GHO bears the burden to prove it was prejudiced by the Coons' failure to notify prior to acceptance of the TEC settlement, and any remedy is limited to the extent of established prejudice. 144 Wash.2d at 16, 25 P.3d 997.

CONCLUSION

¶32 The superior court wrongly granted GHO's motion for summary judgment and erred when it concluded that acceptance of a settlement under policy limits created a presumption that the Coons were "made whole" as a matter of law. Because the Coons had a contractual and common law right to receive their full measure of damages before reimbursing GHO and they put forth substantial evidence that they were not "made whole," further proceedings are necessary on this issue. Additionally, GHO cannot avoid its reimbursement obligations as a result of the Coons' contract breach unless it proves that it was prejudiced by the Coons' failure to provide notice prior to settling their tort claims against TEC. We affirm the Court of Appeals and remand to the trial court for further proceedings consistent with this opinion.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Madsen, J.

Owens, J.

Wiggins, J.

González, J.

Gordon McCloud, J.

Yu, J.

      Joint aspiration is a procedure to remove fluid from the space around a joint for diagnostic purposes. Joint Aspiration, Johns Hopkins Med. , https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/joint-aspiration [https://perma.cc/PJQ4-MM65].

      "Stevens Johnson syndrome is a rare, serious, sometimes fatal disorder in which a person's skin and mucous membranes react severely to a medication or infection. It often begins with flu-like symptoms, followed by a painful red or purplish rash that spreads and blisters, eventually causing the top layer of the skin to die and shed." CP at 155 n.5.

      GHO argues that the Coons' appeal is moot because they did not appeal the superior court's order denying their summary judgment motion. Pet. for Review at 5. The Court of Appeals rejected this argument, recognizing that the determination of breach does not affect the Coons' rights under the contract absent proof of prejudice to GHO. See Grp. Health Coop. v. Coon, 4 Wash. App. 2d 737, 748, 423 P.3d 906 (2018).


source: Caselaw Access Project

author: /s/ Fairhurst, C.J. CHIEF JUSTICE

license: Public Domain

text:
    STATE of Washington, Respondent, v. Ahria James KELLEY, Petitioner.
    No. 97271-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Vandad Barzin RAD, Petitioner.
    No. 97270-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jay Maxwell GRAY, Petitioner.
    No. 97257-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Angela Marie JANTZI, Petitioner.
    No. 97256-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Andrew John SPRINT, Petitioner.
    No. 97266-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


author: /s/ Fairhurst, CJ. CHIEF JUSTICE

text:
    STATE of Washington, Respondent, v. Adam Edwin POWELL, Petitioner.
    No. 97265-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    IN RE the ADOPTION OF: J.Z.D.
    No. 97258-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Ricardo Ochoa DIMAS, Petitioner.
    No. 97255-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jason C. WILKS, Petitioner.
    No. 97254-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Nathan CHOI, et al., Petitioners, v. Josephene CHOI, et al., Respondents.
    No. 97250-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen Stephens, González and Yu, (Justice González recused and Justice Gordon McCloud sat for Justice González), considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Christopher Ronnell AUSLER, Petitioner.
    No. 97248-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    EXPRESS SCRIPTS, INC., Petitioner, v. State of Washington DEPARTMENT OF REVENUE, Respondent.
    No. 97247-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Oscar Luis URBINA, Petitioner.
    No. 97245-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jose Arcides FLORES-GOMEZ, Petitioner.
    No. 97244-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Rodney E. MANS, Petitioner.
    No. 97242-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jonathan Brooks HAWKINS, Petitioner.
    No. 97238-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Victor BUENO, Petitioner.
    No. 97240-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Erik J. MURPHY, Respondent, v. Kevin HENDRICKSON, et ux., et al., Petitioners.
    No. 97236-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    SUMMIT-WALLER COMMUNITY ASSOCIATION, Petitioner, v. PIERCE COUNTY, et al., Respondents.
    No. 97233-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Anthony Maurice MONTALVO, Petitioner.
    No. 97230-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Patrick Michael BELSER, Petitioner.
    No. 97229-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    Paul HAMAKER and Josephine Hamaker, Respondents, v. HIGHLINE MEDICAL CENTER, Petitioner.
    No. 97228-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Daniel Herbert DUNBAR, Petitioner.
    No. 97226-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Daniel Herbert DUNBAR, Petitioner.
    No. 97219-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Catherine S. SHUBECK, Respondent, v. John R. SHUBECK and Shelly A. Williams, Petitioners.
    No. 97213-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied and the Respondent's request for attorney fees for filing an answer to the petition for review is granted. The Respondent is awarded reasonable attorney fees and expenses pursuant to RAP 18.1(j). The amount of the attorney fees and expenses will be determined by the Supreme Court Clerk pursuant to RAP 18.1. Pursuant to RAP 18.1(d), the Respondent should file an affidavit with the Clerk of the Washington State Supreme Court.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Matthew R. MORASCH, Petitioner.
    No. 97208-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Robert Guy OSBORN, Petitioner.
    No. 97197-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Christopher George DREIER, Petitioner.
    No. 97204-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    MAINLINE ROCK AND BALLAST, INC., Respondent, v. BARNES, INC., Petitioner.
    No. 97194-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied. The Respondent's request for attorney fees is also denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    MAINLINE ROCK AND BALLAST, INC., Respondent, v. BARNES, INC., Petitioner.
    No. 97193-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied and the Respondent's request for attorney fees for filing an answer to the petition for review is granted. The Respondent is awarded reasonable attorney fees and expenses pursuant to RAP 18.1(j). The amount of the attorney fees and expenses will be determined by the Supreme Court Clerk pursuant to RAP 18.1. Pursuant to RAP 18.1(d), the Respondent should file an affidavit with the Clerk of the Washington State Supreme Court.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    KITTITAS COUNTY, Petitioner, v. WASHINGTON STATE LIQUOR AND CANNABIS BOARD, Respondent.
    No. 97191-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Responent, v. Shawn J. FITZPATRICK, Petitioner.
    No. 97190-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Palmer D. STRAND, et al, Petitioners, v. SPOKANE COUNTY, et al., Respondents.
    No. 97189-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Gretchen MICHELS, Petitioner, v. FARMERS INSURANCE EXCHANGE, Respondent.
    No. 97188-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    FUTUREWISE, Petitioner, v. CITY OF RIDGEFIELD, et al., Respondents.
    No. 97187-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Matthew Lee GORDON, Petitioner.
    No. 97186-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Tyler Morey WALLACE, Petitioner.
    No. 97184-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court.

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. Robert GROTT, Respondent.
    No. 97183-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the State's petition for review is granted. Review of the issue raised in the Respondent's answer to the petition for review is also granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. Kenneth A. WARD, Respondent.
    No. 97182-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED;

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    Wendell LONG, Petitioner, v. SNOQUALMIE GAMING COMMISSION, Respondent.
    No. 97180-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. Alan John NORD, Respondent.
    No. 97178-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    FEENIX PARKSIDE LLC, Respondent, v. BERKLEY NORTH PACIFIC, et al., Petitioners.
    No. 97170-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    PUD NO. 2 OF PACIFIC COUNTY, Respondent, v. COMCAST OF WASHINGTON IV, INC., et al., Petitioners.
    No. 97169-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied and the Respondent's request for attorney fees for filing an answer to the petition for review is granted. The Respondent is awarded reasonable attorney fees and expenses pursuant to RAP 18.1(j). The amount of the attorney fees and expenses will be determined by the Supreme Court Clerk pursuant to RAP 18.1. Pursuant to RAP 18.1(d), the Respondent should file an affidavit with the Clerk of the Washington State Supreme Court.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Viater TWIRINGIYIMANA, Petitioner.
    No. 97168-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Stanley SALTZBERG and Donna Saltzberg, Petitioners, v. CHUCKANUT CAPITAL, LLC, Respondent.
    No. 97165-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    In the MATTER OF the ESTATE OF: Steven Ward HALL
    No. 97162-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Christopher W. OLSEN, Petitioner.
    No. 97157-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied. The Petitioner's motion requesting permission to file a supplemental brief is also denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    CITY OF PUYALLUP, Respondent, v. PIERCE COUNTY, et al., Petitioners.
    No. 97155-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That both petitions for review are denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    EGP INVESTMENTS, LLC, Respondent, v. Marvin R. FREAR Jr., et ux., Petitioers.
    No. 97153-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    CROWN WEST REALTY, LLC, Petitioner, v. POLLUTION CONTROL HEARINGS BOARD, et al., Respondents.
    No. 97152-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Thyce W. COLYN and Amy J. Colyn, Respondents, v. STANDARD PARKING CORP., et al., Petitioners.
    No. 97127-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    In the MATTER OF the ESTATE OF: Margaret RAI-CHOUDHURY
    No. 97124-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied. The Respondent's request for attorney fees is denied. The Petitioner's motion for extension of time to file a reply to the answer to the petition for review is also denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Damien Andrew DANIELS, Petitioner.
    No. 97121-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    IN RE the MARRIAGE OF Phillip E. JONES, Respondent, and Sharon L. H. Jones, Petitioner.
    No. 97151-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Denise REAGAN, Petitioner, v. St. Elmo NEWTON III, MD, Respondent.
    No. 97132-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    JEOUNG LEE, et al., Respondents, v. EVERGREEN HOSPITAL MEDICAL CENTER, Petitioner.
    No. 97201-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the State's petition for review is granted. The motion to withdraw is denied without prejudice to such a motion being filed in the trial court when this Supreme Court case is final. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jeffrey Allen COOK, Petitioner.
    No. 97154-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, September 4, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its September 3, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


author: Siddoway, J.

text:
    Robert E. LARSON; Tyler W. Gassman; and, Paul E. Statler, Appellants, v. STATE of Washington, Respondent.
    No. 35649-3-III
    Court of Appeals of Washington, Division 3.
    FILED AUGUST 15, 2019
    Toby James Marshall, Terrell Marshall Law Group PLLC, 936 N. 34th St. Ste. 300, Seattle, WA, 98103-8869, Matthew John Zuchetto, Matthew J. Zuchetto, Attorney At Law, 505 W. Riverside Ave. Ste. 500, Spokane, WA, 99201-0518, Boyd McFadden Mayo, Mayo Law Group, PLLC, 922 S. Cowley St. Ste. 6, Spokane, WA, 99202-1263, David B. Owens, Attorney at Law, 311 N. Aberdeen St. Ste. 300, Chicago, IL, 60607-1532, for Appellant(s).
    Richard L. Weber, Attorney General of Washington, 800 Fifth Ave. Ste. 2000 Seattle, WA, 98104-3188, Melanie Tratnik, Attorney Generals Office/CJ Division, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondent(s).
    PUBLISHED OPINION
   Siddoway, J.

¶1 Robert Larson, Tyler Gassman, and Paul Statler were wrongly convicted of crimes and spent roughly four years in prison before their convictions were vacated and the charges against them were dismissed. They later established their right to assert a claim under Washington's "Wrongfully Convicted Persons Act" (WCPA), chapter 4.100 RCW, which provides damages to a wrongly convicted individual based on years of incarceration, damage-based attorney fees, and certain costs. The three men also filed a federal lawsuit against Spokane County and two of its law enforcement officers under 42 U.S.C. § 1983 (the Section 1983 action). They reached a $2.25 million settlement against the defendants in that lawsuit at around the same time they established their rights under the WCPA.

¶2 At issue is whether their judgment for money damages under the WCPA remained viable after the three men settled the Section 1983 action. Given the operative provisions of the WCPA and the legislative intent that its remedies and compensation be exclusive, we hold that their judgment for WCPA compensation no longer remained viable. The superior court's order vacating the judgment is affirmed.

FACTS AND PROCEDURAL BACKGROUND

¶3 In 2008, Messrs. Larson, Gassman, and Statler (the plaintiffs) were arrested in connection with a Spokane robbery. At their trial in February 2009, they presented alibi evidence. A jury nonetheless found each guilty of first degree robbery, first degree assault, and drive-by shooting. Each was sentenced to more than 20 years of incarceration. They began serving their sentences in July 2009.

¶4 In 2012, the superior court granted their CrR 7.8 motion for relief from judgment, finding they had received ineffective assistance from trial counsel, who failed to investigate potentially exculpatory evidence. Their convictions were vacated and they were released from prison. Rather than retry them, the State dismissed the charges against them in May and July 2013.

¶5 In May 2013, the Washington Legislature enacted the WCPA. LAWS OF 2013, ch. 175. It became effective on July 28, 2013, and afforded individuals wrongly convicted before that date a three year period within which to file suit. Id. at § 9 (codified at RCW 4.100.090 ). It expressly addresses its relationship to other civil remedies that a wrongly convicted person might have. As more fully examined below, it states the intent of the legislature that WCPA remedies and compensation "be exclusive to all other remedies at law and in equity" against the state and its political subdivisions. Id. at § 8 (codified at RCW 4.100.080 ). It effectuates that intent by requiring that a WCPA claimant (1) waive other remedies against the state and certain state actors related to the claimant's wrongful conviction and imprisonment, including remedies under 42 U.S.C. § 1983, (2) execute a legal release before receiving payment of any WCPA compensation, and (3) reimburse the State in whole or in part if the claimant's release is held invalid and the claimant later recovers a tort award.

¶6 In January 2014, the plaintiffs brought this action, asserting claims for compensation under the WCPA. At the conclusion of a 2015 bench trial, the superior court concluded they had not met their burden of proof and entered judgment in favor of the State. The plaintiffs appealed. While the State appeal was pending, the plaintiffs filed suit in federal court against Spokane County and two of its law enforcement officers under 42 U.S.C. § 1983.

¶7 In June 2016, this court held that the superior court had applied too high a burden of proof on the plaintiffs in certain respects, and remanded for the court to reconsider the required element of actual innocence. Larson v. State, 194 Wash. App. 722, 725, 375 P.3d 1096 (2016).

¶8 Spokane County responded to this court's revival of the plaintiffs' WCPA claim by moving the federal district court to dismiss the Section 1983 action, citing the WCPA's "exclusive remedy" and waiver language. Reading RCW 4.100.080(1) as a whole, the federal district court construed it as allowing concurrent actions, even though " '[p]laintiffs must execute a legal release of all their other claims, including § 1983 claims, prior to the payment of compensation under the WCPA.' " Clerk's Papers (CP) at 59 (boldface and underscore omitted). Accordingly, the Section 1983 action proceeded, as did the WCPA claim.

¶9 In April 2017, after applying the law as clarified by this court, the superior court concluded that the plaintiffs were entitled to recover under the WCPA. The WCPA provides that a wrongfully convicted individual is entitled to $50,000.00 per year of actual incarceration, attorney fees capped at the lesser of 10 percent of the claimant's damages or $75,000, costs, and any child support payments that went unpaid due to a claimant's incarceration. RCW 4.100.060(5)(a), (c), (e). The superior court determined that the plaintiffs were entitled to $710,697.70 in WCPA damages, $78,380.06 in attorney fees and costs, and that Mr. Larson was entitled to $1,299.97 in unpaid child support payments.

¶10 In mid-June 2017, the plaintiffs moved the court to enter judgment for their WCPA remedies. The State opposed the motion, notifying the superior court that it had learned on June 26 that the plaintiffs had settled their Section 1983 claims for a total of $2.5 million. The State also represented that the settlement had been paid, but admitted relying only on hearsay. It argued that having obtained a federal remedy against Spokane County and its officers, the plaintiffs could not recover compensation under the WCPA.

¶11 The superior court entered judgment in favor of the plaintiffs, as requested. Although a transcript of the hearing has not been made a part of the record, the superior court would later explain that in entering the judgment, it had

attempted to emphasize the distinction between obtaining a judgment versus enforcing a judgment. [When the judgment was entered], the plaintiffs hadn't been compensated on their [ Section] 1983 claim or there was no evidence that they'd been compensated under their [ Section] 1983 claim. Rather, they had just settled the claim. The language consistently used in RCW 4.100 relates to being compensated rather than just making other claims.

Report of Proceedings (RP) at 31-32. The superior court later explained that at the time it agreed to enter judgment,

I found that the plaintiffs were entitled to a judgment because they had met all the requirements of the statute and there was no evidence that they'd been compensated on another claim. I then predicted everyone would be back when the plaintiffs try to enforce the judgment if they get compensated on their [ Section] 1983 claims.

Id. at 32. To ensure the State's ability to return to court if the plaintiffs received the federal settlement and then took steps to collect the Washington judgment as well, the judgment provided that "[p]laintiffs shall notify [the State's attorneys] at least 14 days in advance of seeking payment from the State." CP at 105.

¶12 In August 2017, the plaintiffs sought payment of the state court judgment, moving the superior court to direct the clerk of court to furnish a certified copy of the judgment to the Washington Office of Risk Management. The State opposed their motion and obtained an order to show cause why the court should not vacate the judgment under CR 60(b). This time, the State provided a copy of the Washington Counties Risk Pool check in payment of the settlement amount, which turned out to be $2.25 million.

¶13 Following a hearing on the cross motions, the superior court denied the plaintiffs' motion and granted the State's, vacating the plaintiffs' money judgment. The plaintiffs appeal.

ANALYSIS

I. FAIRLY READ, THE WCPA CONDITIONS COMPENSATION ON A WRONGLY CONVICTED PERSON'S ABILITY TO PROVIDE AN EFFECTIVE WAIVER AND LEGAL RELEASE OF CLAIMS AGAINST THE STATE AND STATE ACTORS

¶14 The appeal presents an issue of statutory construction, which we review de novo.

City of Spokane v. Spokane County, 158 Wash.2d 661, 672-73, 146 P.3d 893 (2006). "The court's paramount duty in statutory interpretation is to give effect to the legislature's intent." In re Pers. Restraint of Nichols, 120 Wash. App. 425, 431, 85 P.3d 955 (2004). If a statute's meaning is plain on its face, then the court will give effect to that plain meaning as an expression of legislative intent. State ex rel. Citizens Against Tolls v. Murphy, 151 Wash.2d 226, 242, 88 P.3d 375 (2004). Plain meaning is discerned not only from the provision in question but also from closely related statutes and the underlying legislative purposes. Id. Only if the language is ambiguous do we look to aids of statutory construction, such as legislative history. State v. Armendariz, 160 Wash.2d 106, 110-11, 156 P.3d 201 (2007). A statute is ambiguous only if susceptible to two or more reasonable interpretations; it is not ambiguous merely because different interpretations are conceivable. Burton v. Lehman, 153 Wash.2d 416, 423, 103 P.3d 1230 (2005).

¶15 The first section of the WCPA is entitled "Intent," and states:

The legislature recognizes that persons convicted and imprisoned for crimes they did not commit have been uniquely victimized. Having suffered tremendous injustice by being stripped of their lives and liberty, they are forced to endure imprisonment and are later stigmatized as felons. A majority of those wrongly convicted in Washington state have no remedy available under the law for the destruction of their personal lives resulting from errors in our criminal justice system. The legislature intends to provide an avenue for those who have been wrongly convicted in Washington state to redress the lost years of their lives, and help to address the unique challenges faced by the wrongly convicted after exoneration.

RCW 4.100.010.

¶16 The critical subsection of the WCPA for present purposes is RCW 4.100.080(1), which appears in the section entitled "Remedies and compensation exclusive-Admissibility of agreements." Reformatted for ease of reading and analysis, it provides:

(1) It is the intent of the legislature that the remedies and compensation provided under this chapter shall be exclusive to all other remedies at law and in equity against the state or any political subdivision of the state.
As a requirement to making a request for relief under this chapter, the claimant waives any and all other remedies, causes of action, and other forms of relief or compensation against the state, any political subdivision of the state, and their officers, employees, agents, and volunteers related to the claimant's wrongful conviction and imprisonment. This waiver shall also include all state, common law, and federal claims for relief, including claims pursuant to 42 U.S.C. Sec. 1983.
A wrongfully convicted person who elects not to pursue a claim for compensation pursuant to this chapter shall not be precluded from seeking relief through any other existing remedy.
The claimant must execute a legal release prior to the payment of any compensation under this chapter. If the release is held invalid for any reason and the claimant is awarded compensation under this chapter and receives a tort award related to his or her wrongful conviction and incarceration, the claimant must reimburse the state for the lesser of:
(a) The amount of the compensation award, excluding the portion awarded pursuant to RCW 4.100.060(5) (c) through (e) ; or
(b) The amount received by the claimant under the tort award.

RCW 4.100.080(1).

¶17 We agree with the plaintiffs and the federal court that notwithstanding the requirement that a WCPA claimant "waives any and all other remedies, causes of action, and other forms of relief or compensation" against the state and state actors, see id., the WCPA allows for concurrent actions as long as the claimant does not both recover relief from the State or state actors and receive and retain compensation under the WCPA. This is implied by the fact that before WCPA compensation is paid, the claimant must execute a legal release. Id. Execution of a release would be unnecessary if the waiver was binding at the inception of a request for relief under the WCPA. It is also implied by the subsection's recognition that even a claimant who has requested relief and signed a legal release might recover a tort award if the release were held invalid. See id.

¶18 We reject the plaintiffs' contention that the requirement that a WCPA claimant release claims operates only prospectively, and has no application if a claimant's first recovery is for non-WCPA claims, followed by the payment of compensation under the WCPA. The plaintiffs argue that the trial court erred by allowing the legislature's stated intent to create an "exclusive remedy" to trump plain language of the WCPA's operative provisions. We begin our analysis with the operative provisions.

¶19 The gloss that the plaintiffs wish to put on the WCPA conflicts with its plain language. They argue that "[t]he WCPA creates a narrow, prospective waiver of remedies by conditioning the payment of compensation on a release of future claims, actions, or proceedings." Appellants' Opening Br. at 18 (emphasis added). But the relevant language in RCW 4.100.080 does not say, "As a requirement to making a request for relief under this chapter, the claimant prospectively waives any and all other remedies, causes of action, and other forms of relief or compensation ... related to the claimant's wrongful imprisonment ... [and] must execute a legal release of future claims prior to the payment of any compensation under this chapter." It says, instead:

As a requirement to making a request for relief under this chapter, the claimant waives any and all other remedies, causes of action, and other forms of relief or compensation ... related to the claimant's wrongful ... imprisonment ... [and] must execute a legal release prior to the payment of any compensation under this chapter.

¶20 Elsewhere, the plaintiffs contend that there is a "particular way in which the legislature codified a waiver and any idea of 'exclusive remedies' within the Act: there must be a legal release; it must then be held invalid; and there must be a subsequent tort payment 'related to his or her wrongful conviction and incarceration.' " Appellants' Opening Br. at 25 (emphasis added). That is the manner in which reimbursement language of RCW 4.100.080(1) operates, because one can only reimburse something that was previously disbursed. When the tort award or settlement is received first, the way in which the legislature effectuated the requirement that WCPA compensation be an exclusive remedy was with the requirement that "[t]he claimant must execute a legal release prior to the payment of any compensation under this chapter." RCW 4.100.080(1). A claimant who has received a tort award or settlement will not be able to waive claims and execute a legal release.

¶21 "Waiver" and "release" have well-settled legal meanings. "Waive" means:

1. To abandon, renounce, or surrender (a claim, privilege, right, etc.); to give up (a right or claim) voluntarily. • Ordinarily, to waive a right one must do it knowingly - with knowledge of the relevant facts.

BLACK'S LAW DICTIONARY at 1894 (11th ed. 2019). Relevant meanings of "release" are:

1. Liberation from an obligation, duty, or demand; the act of giving up a right or claim to the person against whom it could have been enforced < the employee asked for a release from the noncompete agreement>. - Also termed discharge; surrender. 2. The relinquishment or concession of a right, title, or claim < Benson's effective release of the claim against Thompson's estate precluded his filing a lawsuit>.

Id. at 1530 (some emphasis omitted). To "give up a right or claim" is a meaning common to both terms.

¶22 Whether an individual is waiving or releasing a past or future claim will generally be determined from the description of the claim being waived or released, not from the use of the words "past" or "future." Thus, upon buying a ticket for a baseball game, one might give up a claim for any injury arising from the playing of that game, a claim that would inherently arise in the future. Conversely, an agreement to waive or release a claim for injury of a baseball game that occurred last year gives up a claim that inherently arose in the past.

¶23 The claims that the WCPA requires be waived are "remedies, causes of action, and other forms of relief or compensation against the state, any political subdivision of the state, and their officers, employees, agents, and volunteers related to the claimant's wrongful conviction and imprisonment ." RCW 4.100.080(1) (emphasis added). "[T]he claimant's wrongful conviction and imprisonment" necessarily refers to the conviction and imprisonment that occurred in the past and gives rise to the claimant's rights under the WCPA.

¶24 Having settled their federal claims, the plaintiffs no longer had the ability to give up the relevant claims: they had already given them up. The "Settlement Agreement and Release of All Claims" signed with the federal defendants "release[d] and fully discharge[d]" the State, the officers, and various agents, from

any and all manner of claims, demands, liabilities, obligations, damages, causes of action or suits ... which Plaintiffs ... may have against the released parties herein, arising from or in any way connected with [the Section 1983 action] ... including] ... all claims, demands, liabilities, obligations, damages, causes of action or suits ... which have been ... alleged in [the Section 1983 action] or otherwise arise from the events described in the [ Section 1983 action].

CP at 147 (some capitalization omitted). The only claims carved out from the broad scope of the settlement agreement and release were the plaintiffs' pending WCPA claims.

¶25 Following settlement and execution of the settlement agreement and release of all claims, the plaintiffs were no longer capable of satisfying the conditions to compensation required by the WCPA: the condition that they waive all remedies, causes of action, and other forms of relief or compensation against the State and state actors related to their wrongful conviction and imprisonment, and the condition that they execute a legal release.

¶26 This plain reading of the operative provisions of the WCPA is, of course, strongly supported by the introductory language of RCW 4.100.080(1) that "the remedies and compensation provided under this chapter shall be exclusive to all other remedies at law and in equity against the state or any political subdivision of the state."

¶27 The plaintiffs direct our attention to State v. Oakley , a Texas Supreme Court decision that construed Texas statutes as permitting a wrongfully convicted individual to sue for and recover a federal remedy before, but not after, obtaining wrongful imprisonment compensation from the State. 227 S.W.3d 58, 63 (Tex. 2007). The Texas statute was forward-looking, stating that a person compensated under the state statute "may not bring" another action involving the same subject matter against any governmental unit or an employee of any governmental unit. Id. (quoting TEX. CIV. PRAC. & REM. CODE § 103.153(b), a statute entitled "Employees Not Liable After Payment of Compensation" (emphasis added)).

¶28 In holding that a wrongly convicted person could be compensated in two forums under the Texas statute, the Texas Supreme Court observed that if "bar[ring] duplicative recoveries ... had ... been the [legislative] aim, legislators could have said simply that no one can recover both." Id. It was the Washington Legislature's aim that WCPA compensation, if obtained, be an exclusive remedy, and that is what its provisions ensure.

¶29 Finally, the plaintiffs emphasize that in the prior appeal, this court recognized that the WCPA, being a remedial statute, must be " 'liberally construed to suppress the evil and advance the remedy.' " Appellants' Opening Br. at 18 (quoting Larson, 194 Wash. App. at 735, 375 P.3d 1096 ). They argue that this requires us to narrowly construe what they characterize as the "exemption" created by RCW 4.100.080(1). Id. RCW 4.100.080(1) is not fairly characterized as an exemption, however. It creates conditions that apply to every individual requesting relief under the act. Moreover, the stated intent of the WCPA is not to add one more remedy to others that might be available. It is addressed to the "majority of those wrongly convicted in Washington state [who] have no remedy available under the law for the destruction of their personal lives resulting from errors in our criminal justice system," to "provide an avenue for those who have been wrongly convicted in Washington state." RCW 4.100.010 (emphasis added).

¶30 Fairly read, the WCPA conditions compensation on a wrongly convicted person's ability to provide an effective waiver and legal release of claims. The plaintiffs were unable to satisfy the statutory conditions.

II. THE TRIAL COURT DID NOT ERR IN VACATING THE PLAINTIFFS' JUDGMENT UNDER CR 60

¶31 The plaintiffs also briefly argue that the trial court improperly relied on CR 60(b)(11) to vacate their judgment. They infer that the court relied on that subsection. Citing case law that characterizes subsection (11) as " 'a catch-all provision, intended to serve the ends of justice in extreme, unexpected situations,' " the plaintiffs argue their settlement with the federal defendants was expected at the time their judgment was entered, and the judgment was not appealed. Appellants' Opening Br. at 46-47 (quoting State v. Ward, 125 Wash. App. 374, 379, 104 P.3d 751 (2005) ).

¶32 We review a trial court's decision on a motion to vacate for an abuse of discretion. DeYoung v. Cenex, 100 Wash. App. 885, 894, 1 P.3d 587 (2000). A trial court abuses its discretion when it exercises it on untenable grounds or for manifestly unreasonable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

¶33 The State moved for the judgment to be vacated under CR 60(b)(6), not CR 60(b)(11). The former subsection authorizes a trial court to relieve a party from a final judgment when "[t]he judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." The plaintiffs argue that it would be untenable to find inequity, because even the trial court recognized that $2.25 million was not sufficient compensation for three individuals' wrongful incarceration for four years.

¶34 In orally granting the motion, the trial court used language suggesting it might be relying on CR 60(b)(1), stating that it would vacate the judgment

under CR 60(b) due to irregularities that have occurred here with two different actions proceeding at the same time, one of those occurring after this case had been finalized and on appeal. The Court possesses the authority under CR 60(c) and (b) to make that finding.

RP at 35 (emphasis added). CR 60(b)(1) identifies, as a reason authorizing a trial court to relieve a party from a final judgment, "[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order." (Emphasis added.)

¶35 We can affirm a trial court on any basis supported by the record. Nast v. Michels, 107 Wash.2d 300, 308, 730 P.2d 54 (1986). The State reasonably identified CR 60(b)(6) as providing authority to vacate. CR 60(b)(6) does not turn on whether the judgment provides a remedy that is inequitable; it turns on whether "it is no longer equitable that the judgment should have prospective application." Applying the rule of ejusdem generis, inequity in a "judgment ... hav[ing] prospective operation" should be construed to embrace reasons similar to the reasons for vacating judgments that have been satisfied, released, discharged, or that were based on a judgment that has been reversed or otherwise vacated. In this case, the similar inequity is that the judgment was predicated on the plaintiffs' waiver and release of other claims-claims that, as it turns out, were not waived and could not be released.

¶36 The plaintiffs also make a passing challenge to the fact that the statutory procedure of presenting the plaintiffs with a legal release to execute was not followed. As the State argues, however, the law does not require futile acts. E.g., Ancheta v. Daly , 77 Wash.2d 255, 263, 461 P.2d 531 (1969).

¶37 Affirmed.

WE CONCUR:

Fearing, J.

Pennell, A.C.J.

      Although the superior court vacated the entire judgment, it recognized that the plaintiffs might be entitled to their statutory attorney fees and costs and that Mr. Larson might be entitled to his unpaid child support payments. This was based on RCW 4.100.080(1), under which the reimbursement amount to which the State is entitled from an individual who is compensated under the WCPA and receives a tort award related to his or her wrongful conviction excludes past child support awarded pursuant to RCW 4.100.060(5)(c) and attorney fees and costs awarded pursuant to RCW 4.100.060(5)(e). The superior court offered to entertain further argument on that issue.
      Without conceding liability for those amounts, the State paid them, so the issue was not decided by the superior court and is not presented for review.

      The plaintiffs cite State v. Granath for the rule that "[t]he legislature's codified declaration of intent cannot 'trump the plain language of the statute.' " 190 Wash.2d 548, 556, 415 P.3d 1179 (2018) (quoting State v. Reis, 183 Wash.2d 197, 212, 351 P.3d 127 (2015) ).

      The plaintiffs do not make the specious argument that "execute a legal release" means nothing more than to sign a document entitled "Release," which can be done as easily after receiving a tort award or settlement payment as before receiving such an award or settlement. Fairly read, "execute a legal release" is an act having legal substance that cannot be done by a claimant who has already obtained a tort award or settlement from state actors.