text:
    STATE of Washington, Respondent, v. Kenneth A. WARD, Petitioner.
    No. 77044-6-I
    Court of Appeals of Washington, Division 1.
    FILED: April 8, 2019
    Ralph Hurvitz, Attorney at Law, Po Box 25642, Seattle, WA, 98165-1142, Lauren C. Regan, 783 Grant Street, Suite 200, Eugene, OR, 97402, for Appellant.
    Skagit County Prosecuting Attorney, Attorney at Law, Erik Pedersen, Skagit County Prosecutor's Office, 605 S 3rd St., Courthouse Annex, Mount Vernon, WA, 98273-3867, Sloan Gerriets Johnson, Attorney at Law, 530 East McDowell Rd., Ste. 107-56, Phoenix, AZ, 85004, A. O. Denny, Mount Vernon City Attorney, 910 Cleveland Ave., Mount Vernon, WA, 98273-4212, for Respondent.
    PUBLISHED OPINION
    Mann, A.C.J.
    ¶1 Washington recognizes a common law necessity defense. The defense may be raised when a defendant demonstrates that they reasonably believed the commission of the crime was necessary to avoid or minimize a harm, the harm sought to be avoided was greater than the harm resulting from a violation of the law, the threatened harm was not brought about by the defendant, and no reasonable legal alternative existed.
    ¶2 Kenneth Ward appeals his conviction for burglary in the second degree after he broke into a Kinder Morgan pipeline facility and turned off a valve, which stopped the flow of Canadian tar sands oil to refineries in Skagit and Whatcom Counties. Ward intended to protest the continued use of tar sands oil, which he contends significantly contributes to climate change, and the inaction by governments to meaningfully address the crisis of climate change. Ward argues that he was deprived of his Sixth Amendment right to present his only defense-necessity-after the trial court granted the State's motion in limine excluding all testimony and evidence of necessity. We agree and reverse.
    I.
    ¶3 Kinder Morgan transports tar sands oil from Canada into the United States by pipeline. On October 11, 2016, Kinder Morgan was notified by telephone that persons "would be closing a valve, one of our main line valves in the Mount Vernon area within the next 15 minutes." Following the call, Ward cut off a padlock and entered the Kinder Morgan pipeline facility off of Peterson Road in Burlington. Ward then closed a valve on the Trans-Mountain pipeline and placed sunflowers on the valve. At the same time, other protesters closed similar valves in North Dakota, Montana, and Minnesota. Collectively, the protests temporarily stopped the flow of Canadian tar sands oil from entering into the United States.
    ¶4 Ward was arrested at the pipeline facility and charged with burglary in the second degree, criminal sabotage, and criminal trespass in the second degree. Ward admitted his conduct but argued that his actions were protected under a necessity defense. The trial court granted the State's pretrial motion in limine to preclude all witnesses and evidence offered in support of Ward's necessity defense.
    ¶5 Ward's first trial ended with a hung jury. The State then recharged Ward with burglary in the second degree and criminal sabotage. Ward moved for reconsideration of the trial court's order granting the State's motion in limine. In support of his motion, Ward offered argument, the curriculum vitae for eight proposed expert witnesses, and voluminous scientific evidence documenting the impacts of climate change, that climate change is primarily caused by greenhouse gas emissions resulting from human activity, and the contribution of burning tar sands oil. The trial court denied Ward's motion for reconsideration and excluded all testimony and evidence in support of Ward's necessity defense. A second jury found Ward guilty of burglary but were unable to return a verdict on criminal sabotage. Ward appeals.
    II.
    ¶6 Ward argues that the trial court denied his constitutional right to present a defense by granting the State's motion in limine striking all testimony and evidence of necessity. We agree.
    ¶7 We review a claim of a denial of Sixth Amendment rights de novo. State v. Jones, 168 Wash.2d 713, 719, 230 P.3d 576 (2010) ; State v. Lizarraga, 191 Wash. App. 530, 551, 364 P.3d 810 (2015). Since Ward argued that his Sixth Amendment right to present a defense has been violated, we review his claim de novo.
    ¶8 The Sixth Amendment to the United States Constitution and article 1, sections 21 and 22 of the Washington Constitution guarantee a defendant the right to trial by jury and to defend against criminal allegations. State v. Darden, 145 Wash.2d 612, 620, 41 P.3d 1189 (2002). "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). "A defendant's right to an opportunity to be heard in his defense, including the rights to examine witnesses against him and to offer testimony, is basic in our system of jurisprudence." Jones, 168 Wash.2d at 720, 230 P.3d 576.
    The fundamental due process right to present a defense is the right to offer testimony and compel the attendance of a witness. '[I]n plain terms the right to present a defense [is] the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.'
    Lizarraga, 191 Wash. App. at 552, 364 P.3d 810 (quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) ).
    ¶9 This right is not absolute. "The defendant's right to present a defense is subject to established rules of procedure and evidence." Lizarraga, 191 Wash. App. at 533, 364 P.3d 810 (internal citation omitted). A defendant does not have a constitutional right to present irrelevant evidence. Jones, 168 Wash.2d at 720, 230 P.3d 576. "[I]f relevant, the burden is on the State to show the evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial." Darden, 145 Wash.2d at 622, 41 P.3d 1189. "The State's interest in excluding prejudicial evidence must also be balanced against the defendant's need for the information sought, and only if the State's interest outweighs the defendant's need can otherwise relevant information be withheld." Darden, 145 Wash.2d at 622, 41 P.3d 1189.
    ¶10 Below, the trial court prohibited Ward from presenting evidence or witnesses on the necessity defense. If Ward submitted a sufficient quantum of evidence to show that he would likely be able to meet each element of the necessity defense, then the trial court's exclusion of evidence in support of his sole defense violated Ward's constitutional rights.
    III.
    ¶11 "[A]n act is justified if it by necessity is taken in a reasonable belief that the harm or evil to be prevented by the act is greater than the harm caused by violating the criminal statute." State v. Aver, 109 Wash.2d 303, 311, 745 P.2d 479 (1987). Necessity is available when "the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law ... [but not where] a legal alternative is available to the accused." State v. Gallegos, 73 Wash. App. 644, 651, 871 P.2d 621 (1994) (citing State v. Diana, 24 Wash. App. 908, 913-14, 604 P.2d 1312 (1979) ).
    ¶12 To successfully raise the necessity defense the defendant must prove, by a preponderance of the evidence, that: (1) they reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable legal alternative existed. Gallegos, 73 Wash. App. at 650, 871 P.2d 621 ; See also 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 18.02, at 292 (4th ed. 2016) (WPIC).
    ¶13 The State argues that Ward's offer of proof failed to establish the elements of the necessity defense. A challenge to the sufficiency of evidence "admits the truth thereof and all inferences that can reasonably be drawn therefrom." State v. Cole, 74 Wash. App. 571, 578, 874 P.2d 878 (1994). "It requires the trial court and appellate courts to interpret the evidence most favorably for the defendant." Cole, 74 Wash. App. at 578-79, 874 P.2d 878. In this light, we review Ward's offer of proof as to each element of the necessity defense.
    A.
    ¶14 Ward presented sufficient evidence that he reasonably believed the crimes he committed were necessary to minimize the harms that he perceived. Ward's offer of proof included evidence of how past acts of civil disobedience have been successful, evidence of previous climate activism campaigns, and evidence of his own personal successes in effectuating change through civil disobedience. Specifically, Ward offered evidence that he has been working with environmental issues for more than 40 years but that the majority of his efforts failed to achieve effective results. Ward asserted that because of these failures he "came to understand that the issue of climate change would require other than incremental change" and that "direct action was necessary to accomplish these goals." Ward offered three experts-Eric de Place, Bill McKibben, and Martin Gilens-who were prepared to testify as to the efficacy of civil disobedience and how such actions have become necessary in the climate movement. Ward argued that to decide whether his actions were "reasonably calculated to be effective in averting the imminent harm of climate change requires [the] expert testimony and evidence" that he was prepared to present to the jury, and that whether his beliefs were reasonable was a question for the jury, not the trial court, to decide.
    ¶15 The State argues that it was unreasonable for Ward to believe that the commission of this crime was necessary to avoid or minimize harm. The State asserts, first, that all Ward did was temporarily inconvenience Kinder Morgan's employees so it was unreasonable to think that his actions would actually avoid or minimize the broader harms associated with climate change. And second, that because Ward had legal alternatives available it was unreasonable for him to believe that his actions were necessary to avoid or minimize harm.
    ¶16 Whether Ward's beliefs were reasonable was a question for the jury. See State v. Negrin, 37 Wash. App. 516, 524, 681 P.2d 1287 (1984) ("It is the province of the jury to determine such issues" as whether the defendant acted with reasonable grounds.). And further, Ward did not have to prove that the harm he sought to avoid or minimize was actually avoided or minimized but instead that the reason he broke the law was in an attempt to avoid or minimize harm. Gallegos, 73 Wash. App. at 650, 871 P.2d 621 (describing the second prong as "the harm sought to be avoided [, not the harm actually avoided,] was greater than the harm resulting from a violation of the law."). Ward's past successes in effectuating change through civil disobedience in conjunction with the proposed expert witnesses and testimony about Ward's beliefs were sufficient evidence to persuade a fair minded, rational juror that Ward's beliefs were reasonable.

      Ward also argues that the trial court erred in refusing to instruct the jury on a necessity defense. Because we conclude that the trial court violated Ward's constitutional right to present a defense, we reverse and remand for a new trial. Therefore, we do not address whether the trial court also erred in rejecting Ward's jury instruction.

      This is in sharp contrast with the abuse of discretion standard for reviewing a trial court's refusal to give a jury instruction. If, for example, the trial court here had allowed Ward to introduce evidence supporting his necessity defense, but then refused, based on that evidence, to instruct the jury on necessity, we would review for abuse of discretion. State v. Read, 147 Wash.2d 238, 243, 53 P.3d 26 (2002).

   B.

¶17 Ward also offered sufficient evidence to show that the harms of global climate change were greater than the harm of breaking into Kinder Morgan's property. Ward asserted that the extent of the harm resulting from his actions were the loss of a few locks and the temporary inconvenience to Kinder Morgan's employees. Compared to this, Ward introduced "voluminous scientific evidence of the harms of climate change." This evidence included information establishing climate change is real and detrimentally effecting Washington, and that tar sands oil poses a specifically acute threat to our environment. Further, Ward offered to present testimony from climate scientists, Drs. James Hansen, Richard Gammon, and Celia Bitz, supporting his defense.

C.

¶18 Whether the harms of global climate change was brought about by Ward was not an issue in this case. Nevertheless, Ward proffered evidence and expert testimony establishing the harms associated with global climate change and the root causes of global climate change.

D.

¶19 Ward also offered sufficient evidence to create a question of fact on whether there were reasonable legal alternatives. Ward argued that the window for action on climate change has narrowed to the point that immediate, emergency action is necessary. Ward offered evidence of his more than 40 years being involved in various environmental movements, the numerous attempts he has made to address climate change, and how most of those efforts have failed. Ward additionally offered proposed testimony by pipeline industry expert Eric de Place, professor and climate campaigner Bill McKibben, and professor of political science Martin Gilens, to the effect that the fossil fuel industry's influence over political institutions renders traditional legal avenues unreasonable as a means of addressing the climate emergency.

¶20 State v. Parker, 127 Wash. App. 352, 353, 110 P.3d 1152 (2005), discussed the "no reasonable alternative" element. Parker was charged with felon in possession of a gun. Parker claimed that he carried the gun because he had been shot the previous July and his assailants were still at large. Division Two of this court held that in order to show he had no reasonable alternative, Parker has to demonstrate "that he had actually tried the alternative or had no time to try it, or that a history of futile attempts revealed the illusionary benefits of the alternative." Parker, 127 Wash. App. at 355, 110 P.3d 1152.

¶21 Here, in contrast with Parker, Ward offered evidence that he had tried the alternatives and they were unsuccessful. Whether Ward's evidence was sufficient to establish that his history of failed attempts to address climate change revealed the futility of supposed reasonable alternatives was a question for the jury. Viewed in the light most favorable to Ward, and admitting the truth of his evidence and all reasonable inferences therefrom, Ward's offer of proof created a question for the jury. Cole, 74 Wash. App. at 578-79, 874 P.2d 878.

¶22 Because Ward met his initial burden of showing that he would likely be able to submit a sufficient quantum of evidence on each element of necessity to make it a jury question whether he established that element beyond a reasonable doubt, the trial court violated his constitutional right by granting the State's motion in limine.

IV.

¶23 The State argues that the necessity defense is unavailable when the real purpose is to advertise a political debate. We agree with the State that if Ward's true intent was to induce jury nullification, then the trial court would not have erred in prohibiting Ward's evidence. Therefore, in order to determine if the trial court erred we must also determine what Ward's purpose was in offering his evidence.

¶24 "Jury nullification occurs in a trial when a jury acquits a defendant, even though the members of the jury believe the defendant to be guilty of the charges." State v. Nicholas, 185 Wash. App. 298, 301, 341 P.3d 1013 (2014). But the jury's power of nullification does not stem from any legal right. State v. Brown, 130 Wash. App. 767, 771, 124 P.3d 663 (2005). Rather, the power of nullification is rooted in courts' unwillingness to inquire into deliberations because jurors can agree to acquit on virtually any basis without court knowledge. See State v. Elmore, 155 Wash.2d 758, 771, 773-74, 123 P.3d 72 (2005). Nevertheless, Washington courts have concluded that a trial court does not err by instructing the jury that it has a duty to convict, rather than that it may convict, if it finds all of the elements of the crime charged beyond a reasonable doubt. See, e.g., State v. Meggyesy, 90 Wash. App. 693, 958 P.2d 319 (1998), abrogated on other grounds, State v. Recuenco, 154 Wash.2d 156, 110 P.3d 188 (2005).

¶25 A trial court does not abuse its discretion if it prohibits a party from introducing evidence solely intended to induce jury nullification. If here, for example, Ward's actions were purely symbolic-if they had no ability to actually avoid or minimize the harms he perceived-then his proffered evidence would have been aimed not at proving necessity but instead at inducing jury nullification. In such a situation, the trial court would not have erred in prohibiting such evidence. If, however, Ward's actions were not purely symbolic-if they had some ability to actually avoid or minimize his perceived harms-then the evidence he offered would not have been aimed at inducing jury nullification and the trial court would have erred in prohibiting it. When civil disobedience and the necessity defense intersect, it is the intent of the protester, not the effectiveness of the protest, that is of the utmost relevance.

¶26 Here, in order to determine the intent behind Ward's actions, we must first determine what specific harm his protest was intended to avoid. If Ward was protesting global warming as a whole, then the impact of his action would be so infinitesimal that we would be unable to conclude anything other than that his actions were symbolic in nature. If, however, Ward was protesting more than climate change as a whole-if the harm he was attempting to alleviate was, for example, the danger of Canadian tar sands oil specifically or the danger that global warming poses to Washington-then we could conclude that his actions were actually intended to have an impact on the harm that he sought to avoid.

¶27 Below, Ward phrased the harm that he sought to avoid as more than just global climate change. Ward asserted that the harm he was attempting to avoid was threefold: (1) global climate change, generally, has the potential to destroy our way of life, (2) Canadian tar sands oil is a uniquely potent contributor to climate change, and (3) the localized impacts of climate change on Washington has the potential to be debilitating.

¶28 Ward argued that "tar sands oil represent[s] an elevated level of risk to global climate[,]" and that he felt he needed to act "in order to stop the advance of global warming, encompassing both current and projected warming in Washington state, ocean acidification, and impacts on local ecosystems and residents." Further, Ward argued that his "temporary shut-down of tar sands oil flowing through the Trans-Mountain Pipeline certainly minimized the harm flowing from that quantum's contribution to climate change ... and from the use of tar sands in particular." Ward also introduced exhibits about the danger that sea level rise poses to Washington.

¶29 Based on the specific harms that Ward asserted he was trying to avoid, his actions were not merely symbolic. The protesters' intent was to physically stop the flow of Canadian tar sands oil into the United States. Because one of the specific harm Ward asserted was that Canadian tar sands oil is a particularly potent contributor to climate change, the protest was not a purely symbolic act. It was a direct way of preventing a uniquely potent contributor to climate change from entering the United States.

¶30 Because the harms that Ward asserted he was trying to alleviate were more than just climate change, generally, but also included both the specific dangers of Canadian tar sands oil and the impacts of sea level rise on Washington, Ward's actions were not intended to be merely symbolic in nature. As such, the evidence he planned to introduce was not solely aimed at inducing jury nullification and the trial court erred in preventing Ward from introducing evidence in support of his necessity defense.

V.

¶31 The violation of a defendant's constitutional right is presumed to be prejudicial, but may be harmless "if we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same result without the error." Jones, 168 Wash.2d at 724, 230 P.3d 576. "Such a determination is made from an examination of the record from which it must affirmatively appear the error is harmless." State v. Stephens, 93 Wash.2d 186, 191, 607 P.2d 304 (1980).

¶32 The closest question in this matter is whether Ward admitted that he had available reasonable legal alternatives. If he did, it would indicate that the trial court's error was harmless. The State points to Ward's testimony at trial concerning his legal alternatives.

[Plaintiff's counsel]: What was your intent in shutting off that safety value on the 11th?
[Ward]: To stop the flow of tar sands oil running through that pipeline.
[Plaintiff's counsel]: Why were you attempting to do that?
[Ward]: I was attempting to take the most effective measure that I could think of to address this problem to avoid cataclysmic climate change.
[Plaintiff's counsel]: Did you believe that there was anything left to do that may have been legal that could have addressed the issue?
....
[Ward]: I think that there are legal steps that can be taken, and I continue to take those. But I think that alone they are insufficient.
[Plaintiff's counsel]: What are the other steps that you continue to participate in?
[Ward]: Well, I'm engaged in efforts in my own state, which has been quite successful. The City of Portland has just announced a plan to shift to 100 percent renewable energy, and I supported that. I am engaged in general public education. And I am increasingly looking at ways to support candidates for office who endorse a significant plan of action on climate change.

¶33 When viewed in its entirety, Ward's testimony indicates that Ward was addressing the ineffectiveness of his alternatives and was not admitting that he had reasonable legal alternatives available to him. Moreover, if the jury was allowed to hear Ward's testimony in conjunction with the excluded expert testimony, it could well have concluded that Ward's available legal alternatives were futile. The error was not harmless.

¶34 We reverse and remand.

WE CONCUR:

Smith, J.

Dwyer, J.

      And this type of action appears to be somewhat of Ward's forte. In the past, Ward has physically placed himself in the way of what he perceived as serious threats to the environment, such as a coal transport ship, in an effort to stop those threats from causing harm.


source: Caselaw Access Project

author: Appelwick, C.J.

license: Public Domain

text:
    FEENIX PARKSIDE LLC, Appellant, v. BERKLEY NORTH PACIFIC and Continental Western Insurance Company, Respondents.
    No. 77303-8-I
    Court of Appeals of Washington, Division 1.
    FILED: April 8, 2019
    Jose Dino Vasquez, George S. Treperinas, Thomas Dean Adams, Andrew William Durland, Karr Tuttle Campbell, 701 5th Ave. Ste. 3300, Seattle, WA, 98104-7055, for Appellant.
    Jeffrey Stuart Tindal, Betts Patterson & Mines, 701 Pike St. Ste. 1400, Seattle, WA, 98101-3927, for Respondent.
    PUBLISHED OPINION
   Appelwick, C.J.

¶1 The ceiling of a commercial building owned by Feenix partially collapsed. Feenix sought coverage under the insurance policy's coverage for collapse due to decay, claiming the collapse was caused by a gradual decline in strength, soundness. Berkley denied coverage for the loss. The trial court granted summary judgment to Berkley on the coverage issue. We reverse.

FACTS

¶2 Feenix Parkside LLC (Feenix) owns a single story commercial building in Auburn, Washington. The building was built approximately 40 years ago, around 1979. On or about July 4, 2015, a portion of the building's roof truss system failed, and that portion of the roof collapsed. At that time, Feenix was insured by a Continental Western Insurance Company policy issued by Berkley North Pacific (Berkley). Feenix submitted a claim to Berkley. Berkley retained Independent Adjuster Rob Stone from McLarens Young and Engineer Mark Schaefer with Pacific Engineering Technologies Inc. (PET) to investigate the claim.

¶3 Stone and Schaefer initially inspected the building on July 8, 2015. Schaefer again inspected the building on July 13, 21, and 27, 2015. Based on his inspections and research, Schaefer performed a structural analysis of the roof truss system. In his opinion, the roof trusses failed when the top chord members fractured as a result of applied tension perpendicular to the wood grain immediately adjacent to the rear exterior bearing wall. He determined that the roof trusses failed because of two concurrent factors: (1) the configuration of the truss plate connection adjacent to the rear exterior bearing wall had inadequate strength to resist the applied loads, and (2) higher than normal temperatures reduced the strength of the wood trusses by up to 30 percent.

¶4 In a letter dated August 19, 2015, Berkley denied Feenix's claim because the loss was caused by "defective methods in construction and excessive temperatures in the attic," which are not covered causes of loss under the policy's collapse coverage.

¶5 Feenix retained CT Engineering Inc. to conduct an independent investigation of the loss shortly after receiving Berkley's denial. CT Engineering concluded,

[W]ater penetrated thru [sic] the upper layer of roofing and collected between the two layers providing a concealed, encapsulated water delivery system. The water between the roofing layers sought the drain location although [sic] became trapped. As the water volume increased, so did the pressure on the old roofing layer which we believe, slowly allowed the water to penetrate into the interior of the building near the roof drains. The water wicked through the blocking and delivered moisture to the truss bearing ends. In support of this, water staining is clearly visible in both the blocking and truss bearing ends [on] each side of the roof drains.

¶6 CT Engineering also wrote, "It is our opinion that the cause of the truss collapse is due to the combined effects of both an elevated temperature in the attic space due to solar radiation gain (125 -150 degrees) as well as a moisture content exceeding 19% for an extended period of time." Based on CT Engineering's findings, Feenix requested that Berkley reconsider its denial of coverage.

¶7 As a result of Feenix's letter, Berkley reopened its investigation and instructed PET to determine whether " 'hidden decay' " contributed to the roof collapse. On July 13, 2016, PET revisited the building site and inspected portions of the original roof sheathing and roof trusses still onsite. Schaefer did not alter his opinions on the cause of the collapse, and noted the following:

• Visual examination of the failure surfaces in the top chord members of trusses in place shortly after the collapse showed no evidence of wood decay in the failure surface.
• Examination of the failure surfaces in the top chord members truss pieces stored on site in 2016 showed no evidence of wood decay in the failure surface.
• Examination of the failure surfaces in the top chord members truss pieces stored at the MDE [Inc.] in 2016 showed no evidence of wood decay in the failure surface. The darkened wood along the shafts of nails that were exposed in the failure plane appears to be iron staining, which is a common phenomenon in wood where elevated moisture is present at some point. Iron staining does not reduce the strength of the affected wood.

¶8 Following PET's supplemental report, Berkley confirmed its denial of Feenix's claim.

¶9 On September 23, 2016, Feenix sued Berkley. Berkley and Feenix filed cross motions for summary judgment on the issue of coverage for the building roof collapse. On August 4, 2017, the trial court granted Berkley's motion for summary judgment and denied Feenix's motion. On September 18, 2017, the trial court entered an amended order on the parties' cross motions, which reflected all submissions and materials considered by the trial court at the summary judgment hearing. The amended order did not alter or modify the legal conclusions and findings of fact in the trial court's August 4, 2017 orders. Feenix appeals.

DISCUSSION

¶10 Feenix makes two arguments. First, it argues that the trial court erred in finding the term "decay" unambiguous in Berkley's insurance policy. Second, it argues that the trial court erred by construing the term "system" against Feenix and in favor of Berkley.

I. Standard of Review

¶11 An order granting summary judgment is reviewed de novo, "with the reviewing court performing the same inquiry as the trial court." Ski Acres. Inc. v. Kittitas County, 118 Wash.2d 852, 854, 827 P.2d 1000 (1992). When we review a summary judgment order, we must consider all evidence in favor of the nonmoving party.

Keck v. Collins, 184 Wash.2d 358, 368, 357 P.3d 1080 (2015). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c) ; TracFone Wireless. Inc. v. Dep't of Revenue, 170 Wash.2d 273, 281, 242 P.3d 810 (2010).

II. Insurance

¶12 Courts in Washington construe insurance policies as the average person purchasing insurance would, giving the language a fair, reasonable, and sensible construction. Vision One, LLC v. Phila. Indem. Ins. Co., 174 Wash.2d 501, 512, 276 P.3d 300 (2012). Undefined terms are to be given their ordinary meaning. Id. The entire contract must be construed together in order to give force and effect to each clause. Wash. Pub. Util. Dists.' Utils. Sys. v. Pub. Util. Dist. No. 1 of Clallam County., 112 Wash.2d 1, 10, 771 P.2d 701 (1989). The court must enforce the contract as written if the language is clear and unambiguous. Id. If the language on its face is fairly susceptible to two different but reasonable interpretations, the contract is ambiguous, and the court must attempt to discern and enforce the contract as the parties intended. Id. at 10-11, 771 P.2d 701. In the event of an ambiguity, the contract will be construed in favor of the insured. Id. at 11, 771 P.2d 701.

A. Burden

¶13 Property insurance policies generally fall into two categories: named-peril and all-risk. 174 Wash.2d at 513, 276 P.3d 300. "Named perils" policies provide coverage only for the specific risks enumerated in the policy and exclude all other risks. Id. All-risk policies, on the other hand, provide coverage for all risks unless the specific risk is excluded. Id. In both types of property insurance, coverage is commonly triggered-or excluded-when a specified peril " 'causes' " a loss. Id. at 514, 276 P.3d 300.

¶14 Determining whether coverage exists is a two-step process. McDonald v. State Farm Fire & Cas. Co., 119 Wash.2d 724, 731, 837 P.2d 1000 (1992). The insured must show the loss falls within the scope of the policy's insured losses. Id. To avoid coverage, the insurer must then show the loss is excluded by specific policy language. Id.

B. The Policy

¶15 Here, the coverage form states, "[Berkley] will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss."

¶16 The Causes of Loss-Special Form (COL Form) states,

A. Covered Causes of Loss
When Special is shown in the Declarations, Covered Causes of Loss means Risks of Direct Physical Loss unless the loss is:
1. Excluded in Section B., Exclusions; or
2. Limited in Section C., Limitations; that follow.
B. Exclusions
1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.
a. Ordinance Or Law
....
b. Earth Movement
....
c. Governmental Action
....
d. Nuclear Hazard
....
e. Utility Services
....
f. War and Military Action
....
g. Water
....
h. "Fungus", Wet Rot, Dry Rot And [sic] Bacteria
....
3. We will not pay for loss or damage caused by or resulting from any of the following, 3.a. through 3.c. But if an excluded cause of loss that is listed in 3.a. through 3.c. results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss.
a. Weather conditions. But this exclusion only applies if weather conditions contribute in any way with a cause or event excluded in Paragraph 1. above to produce the loss or damage.
....
D. Additional Coverage - Collapse
The term Covered Cause of Loss includes the Additional Coverage - Collapse as described and limited in D.1. through D.5. below.
1. With respect to buildings:
a. Collapse means an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its intended purpose.
....
2. We will pay for direct physical loss or damage to Covered property, caused by collapse of a building or any part of a building that is insured under this Coverage Form ... if the collapse is caused by one or more of the following:
a. The "specified causes of loss" or breakage of building glass, all only as insured against in this Coverage Part;
b. Decay that is hidden from view, unless the presence of such decay is known to an insured prior to collapse;
c. Insect or vermin damage. ...
d. Weight of people or personal property;
e. Weight of rain that collects on a roof;
f. Use of defective material or methods in construction, remodeling or renovation if the collapse occurs during the court of the construction, remodeling or renovation. However, if the collapse occurs after construction, remodeling or renovation is complete and is caused in part by a cause of loss listed in 2.a. through 2.e., we will pay for the loss of damage even if use of defective material or methods, in construction, remodeling or renovation, contributes to the collapse.
....
E. Additional Coverage-Limited Coverage for "Fungus", Wet Rot, Dry Rot And Bacteria
1. The coverage described in E.2 and E.6 only applies when the "fungus", wet or dry rot or bacteria is the result of one or more of the following causes that occurs during the policy period and only if all reasonable means were used to save and preserve the property from further damage at the time of and after that occurrence.
....
G. Definitions
....
(2) "Specified Causes of Loss" means the following: Fire; lightning; explosion; windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; leakage from fire extinguishing equipment; sinkhole collapse; volcanic action; falling objects; weight of snow, ice or sleet; water damage.
....
c. Water damage means accidental discharge or leakage of water or steam as the direct result of the breaking apart or cracking of a plumbing, heating, air conditioning, or other system or appliance (other than a sump system including its related equipment and parts), that is located on the described premises and contains water or steam.

(Boldface omitted.)

C. Meaning of Decay

¶17 Feenix sought coverage for collapse under section D.2.b. Feenix asserts first that the undefined term "decay" in that section is ambiguous, and must be construed in its favor. Below, Feenix proposed that the trial court define "decay" as "a gradual decline in strength, soundness," from Webster's Ninth New Collegiate Dictionary 329 (1988). It offered alternative definitions of "decay": "to decline from a sound or prosperous condition," and "to undergo decomposition." MERRIAM-WEBSTER ONLINE DICTIONARY , https://www.merriam-webster.com/ dictionary/decay ( LAST VISITED March 28, 2019).

¶18 The trial court rejected Feenix's argument that "decay" was ambiguous in the policy, stating,

I, however, do not believe that the term decay [sic], as used in the policy, is an ambiguous [sic] and the idea that it would mean ... a decline in strength I don't find to be a reasonable use of the term in the context of the policy. Any structural failure could ostensibly be defined as decay if that more generalized term were used.
....
Additionally, I think it is important that the -- as defined in the policy, it's not simply decay, but it is decay hidden from view, and ... that phrase becomes superfluous unless it actually means some kind of material decomposition that is visible rather than more general just weakening of the material over time that doesn't have any visual component to it.
Otherwise, the phrase hidden from view has no meaning in the contract. And as the defendants have argued, it is the court's job to interpret contractual language in total and to give meaning to it all.
And so here, I think that when read in the context of defining a cause of a collapse, the only reasonable interpretation is one that indicates some kind of decomposition of the material, and whether that's rot. You know, in the specific instance of wood, that may be rot.

¶19 To determine the ordinary meaning of an undefined term, our courts look to standard English language dictionaries. Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wash.2d 869, 877, 784 P.2d 507 (1990).

¶20 Citing Webster's Ninth at 329, Feenix urges the court to use the definition of "decay": "a gradual decline in strength, soundness." The complete definition of "decay" upon which Feenix relies is "a gradual decline in strength, soundness, or prosperity or in degree of excellence or performance." Id.

¶21 Webster's Third New International Dictionary also defines "decay" as "the condition of a person or thing that has undergone a decline in strength, soundness, or prosperity or has been diminished in degree of excellence or perfection." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 584 (2002). It alternatively defines "decay" as "the material process of dilapidation : wasting or wearing away." Id. It also offers the definition, "Rot; [specifically]: the aerobic decomposition of proteins chiefly by bacteria in which the products of putrefaction are completely oxidized to stable compounds having no foul odors." Id.

¶22 To support its proffered definition of decay, Feenix cites non-Washington authority. In a Sixth Circuit case, a building's insurance policy covered "loss resulting from 'decay that is hidden from view.' " Joy Tabernacle-The New Testament Church v. State Farm Fire & Cas. Co., 616 Fed. Appx. 802, 808 (6th Cir. 2015). Because there was no definitive guidance in the contract itself, the court turned to dictionaries to determine the plain meaning of "decay." Id. The dictionaries indicated that "decay" encompasses both "organic rot" and a broader reference to a general decline or degeneration over time. Id. The court held that that the insured "likely carried its burden of proving coverage under the collapse extension of the policy." Id. at 810. It explained that

the deterioration of the 90-year old church roof structure was unlike the four-year-old building with loosened nails ... and more similar to ... the older buildings ... in which wood and mortar weakened over time due to age and extended exposure to humidity and weather.

Id. at 810-11.

¶23 Feenix also cites Stamm Theatres, Inc. v. Hartford Casualty Insurance Co., 93 Cal. App. 4th 531, 113 Cal.Rptr.2d 300 (2001). In Stamm Theatres, a theater built around 1948 was in danger of imminent collapse when wood trusses gave way but showed no signs of rot. Id. at 534-35, 113 Cal.Rptr.2d 300. Reversing the trial court's narrow reading of "decay" as including only organic rot, the California Court of Appeals adopted the broader definition of "the gradual loss of strength." Id. at 537-38, 542-43, 113 Cal.Rptr.2d 300.

¶24 Additionally, Feenix cites Easthampton Congregational Church v. Church Mutual Insurance Co., 322 F.Supp.3d 230 (D. Mass. 2018), aff'd, 916 F.3d 86 (1st Cir. 2019). In that case, the insurer denied coverage when a church ceiling failed and fell to the floor. Id. at 233-34. The question for the court was whether the church produced evidence establishing that decay that was hidden from view and unknown to the church contributed to the collapse. Id. at 236. The court turned to dictionary definitions and found that the definitions include both a broad definition and a narrower one which referenced rot. Id. at 236. The court stated,

The most reasonable reading of the word "decay" as it is used in the Policy is that it refers to the broader concept of the word. This is because the Policy elsewhere uses the term "rot" in an exclusion for " 'Fungus,' Wet Rot, Dry Rot and Bacteria." If Church Mutual wanted to limit coverage for collapse to collapse caused or contributed to by "rot," as opposed to "decay," it could have done so. It did not, and the only reasonable implication is that the plain and ordinary meaning of "decay" as used in the Policy encompasses decay in the broader sense of a gradual deterioration or decline in strength or soundness.

Id. at 236-37. The court held that the church had shown that the failure of the ceiling was caused, at least in part, by such a gradual deterioration or decline in strength or soundness. Id. at 237.

¶25 Berkley argues that Feenix's broader definition of "decay" is unreasonable, and nothing more than an attempt to "recharacterize the perils of excessive heat (in the attic space) and excessive moisture content in the trusses ... as 'decay.' "

¶26 But, as the court reasoned in Easthampton, if Berkley wanted to limit coverage for collapse to collapse caused or contributed to by "rot," as opposed to "decay," it could have done so. It did not. The policy here is nearly identical to the policy in Easthampton. The policy references " 'Fungus', Wet Rot, Dry Rot, And Bacteria" when it initially excludes them from covered causes of loss or damage in section B.1.h. And the policy again mentions fungus, wet rot, dry rot, and bacteria under section E, which provides "Additional Coverage - Limited Coverage," for those losses. The only reasonable implication is that the plain and ordinary meaning of "decay," as used in the policy, is not limited to organic rot. Rather, it encompasses "decay" in a broader sense.

¶27 Berkley also contends that Feenix's definition of "decay" is substantially similar to "deterioration," a term that the policy specifically references as an exclusion. It argues that "deteriorate" means " 'to grow worse; degenerate; to weaken or disintegrate; decay.' " And, because the policy contains a specific reference to "deterioration," "decay" necessarily means something other than to grow worse over time, i.e., gradually lose strength, soundness, prosperity or degree in excellence.

¶28 The policy provides an exclusion for deterioration at COL Form section B.2.d(2): "We will not pay for loss or damage caused by or resulting from any of the following: ... Rust or other corrosion, decay, deterioration, hidden or latent defect or any quality in property that causes it to damage or destroy itself."

¶29 Though the policy uses both terms, a distinction between decay and deterioration is not so apparent as Berkley would argue. In Sprague v. Safeco Insurance Company of America, 174 Wash.2d 524, 529-30, 276 P.3d 1270 (2012), the court turned to the dictionary for a definition of the term "rot" which was not defined in the policy. It noted: " 'Rot' is defined: 1 a : to undergo natural decomposition : decay as a result of the action of bacteria or fungi ... b : to become unsound or weak ... 2 a : to go to ruin : DETERIORATE." Id. at 530, 276 P.3d 1270 (alterations in original) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1976 (1993) ). The court continued, "Stated simply, 'rot' describes the process of deterioration." Id. The same dictionary also references deterioration in its definition of decay: "DECAY indicates deteriorating change, often gradual, from a sound condition or perfect state." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 584 (2002).

¶30 We must strictly and narrowly construe exclusions, such as the exclusion for deterioration. See Campbell v. Ticor Title Ins. Co., 166 Wash.2d 466, 472, 209 P.3d 859 (2009). Insurance policies are liberally construed to provide coverage wherever possible. W. Nat'l Assurance Co. v. Shelcon Constr. Grp., LLC, 182 Wash. App. 256, 261, 332 P.3d 986 (2014). And, because Berkley did not define "decay" in the policy, the term must be interpreted in a way the average purchaser of insurance would understand it, and any ambiguity is construed against the insurer and in favor of the insured. Vision One, 174 Wash.2d at 512, 276 P.3d 300. The broader definition of "decay," a gradual decline in strength or soundness, is the more reasonable manner to construe the term.

¶31 In granting summary judgment to Berkley, the trial court stated,

At best, Mr. [Benjamin] McCann states that decay on the support sleeper allowed water intrusion into the roof, which then ... combined with excessive heat over time weakened the structural integrity and the roof then collapsed. But he doesn't point to specific areas of decay that led to the collapse.
As [Berkley's counsel] discussed further this morning, there are several spots throughout, the sleeper, the end of one of the trusses, a couple of spots where decay was noted, but Mr. McCann actually testified that there was no decay in the trusses. And that is -- this is at his deposition page 56 lines 3 to 12, and that the wood's exposure to water and heat over time was not the same as decay. It wasn't synonymous with decay.

¶32 Feenix's expert testified in his deposition, "The sleeper obviously sits on the trusses, and it's in a decayed state, and I'm saying that it had a factor in the decay -- or the collapse of the trusses." He continued, "[W]hat I am saying is that I did not find any decay in the truss members themselves." And, when asked if "moisture content of wood exceeding 19 percent" was the "equivalent of wood decay," McCann answered, "No." The record indicates the sleeper had wet rot and the trusses did not. In the context of his testimony, McCann was using "decay" to indicate "wet rot." Using that definition, the trial court could have correctly concluded there was no evidence of decay in the trusses. But, that is not the proper definition of "decay." That conclusion was not appropriate under the correct definition.

¶33 The trial court also found that the phrase "hidden from view" would be rendered meaningless unless decay requires "some kind of material decomposition that is visible rather than more general just weakening of the material over time that doesn't have any visual component to it." But, the phrase "decay that is hidden from view" must be interpreted in context of the entire sentence which concludes "unless the presence of such decay is known to an insured prior to collapse." Decay that is not hidden from view is not covered. Decay that is hidden from view is not covered if known to an insured prior to collapse. Coverage turns on what the insured could have known by viewing the property or what the insured did know. Presumably known risks could be addressed prior to collapse.

¶34 The trial court erred in concluding that the "only reasonable interpretation" of "decay" is one that indicates some kind of decomposition of the material, and rejecting Feenix's definition.

D. Issue of Fact

¶35 Feenix asserts that it raised a material issue of fact as to whether decay, under the broader definition it advanced, caused the collapse. Feenix's expert opined,

[T]he cause of the truss collapse is due to the combined effects of both an elevated temperature in the attic space due to solar radiation gain (125-150 degrees) as well as a moisture content exceeding 19% for an extended period of time. The net effect of these conditions cause a reduction in the allowable stresses of the truss top chord by sixty percent.

¶36 Thus, Feenix presented evidence of weather conditions-moisture and extreme heat-that caused damage that led to the roof collapse.

¶37 The COL Form section B.3 provides,

We will not pay for loss or damage caused by or resulting from any of the following, 3.a. through 3.c. But if an excluded cause of loss that is listed in 3.a. through 3.c. results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss.
a. Weather conditions. But this exclusion only applies if weather conditions contribute in any way with a cause or event excluded in Paragraph [B.]1. above to produce the loss or damage.

Feenix states a claim for a covered cause of loss under the collapse coverage. As a result, the exclusion of weather conditions is not applicable.

¶38 The expert evidence Feenix offered demonstrates the existence of genuine issues of material fact concerning the cause of the collapse. Therefore, the trial court's grant of summary judgment for Berkley was in error.

E. Water Damage and System

¶39 Feenix also argues that the "intrusion of water through the Parkside roof system and the elevated moisture which resulted from it becoming trapped in the roof system over time reduced the strength of the wood trusses, which led to the collapse of the roof system." Feenix asserts that the term "system" in the policy is susceptible to more than one reasonable interpretation, and argues that the definition of "system" can also apply to the "roof system" of the building.

¶40 Berkley contends that Feenix's definition inappropriately expands the scope of collapse coverage caused by "water damage," which renders the limited definition in the policy ineffective.

¶41 The policy defines "water damage" in this manner:

Water damage means accidental discharge or leakage of water or steam as the direct result of the breaking apart or cracking of a plumbing, heating, air conditioning, or other system or appliance (other than a sump system including its related equipment and parts), that is located on the described premises and contains water or steam.

¶42 In rejecting Feenix's argument, the trial court stated, "Plaintiff has argued that the roof structure qualifies as [another] system within this definition of water damage, but I have to find that the plaintiff's damage is very strained and simply untenable within the context of the policy."

¶43 Under the rule of ejusdem generis, where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent. Cockle v. Dep't of Labor & Indus., 142 Wash.2d 801, 808-09, 16 P.3d 583 (2001). Instead, they are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. Id.

¶44 A "roof system" is not the equivalent of a plumbing, heating, or air conditioning system, because those systems are all designed to use water or steam in their operation, while a roof system serves to exclude water. Feenix's argument violates the rule of ejusdem generis and its offered definition of "system" fails.

¶45 We reverse.

WE CONCUR:

Smith, J.

Andrus, J.


author: Worswick, J.

text:
    Larry SEAQUIST and Carla Seaquist, and the marital community comprised thereof, Appellants, v. Michelle CALDIER, a single person, Respondent.
    No. 50816-8-II
    Court of Appeals of Washington, Division 2.
    Filed April 9, 2019
    Anthony Clarence Otto, Attorney at Law, Po Box 1368, Port Orchard, WA, 98366-0060, for Appellant.
    David P. Horton, Templeton Horton Weibel & Broughton PLLC, 3212 Nw Byron St. Ste. 104, Silverdale, WA, 98383-9154, for Respondent.
    PUBLISHED OPINION
   Worswick, J.

¶1 In 2014, Larry Seaquist and Michelle Caldier were competing for 26th District State Representative. Larry and Carla Seaquist allege that Caldier defamed Seaquist and placed him in a false light through political campaign materials and in an interview. Caldier moved for summary judgment dismissing the Seaquists' claims. The Seaquists appeal the trial court's order granting Caldier's motion for summary judgment dismissal of both claims.

¶2 Although some of Caldier's statements were unquestionably misleading and ignoble, the Seaquists have not established a prima facie case of defamation or false light by evidence of convincing clarity. Therefore, we affirm.

FACTS

I. FACTUAL HISTORY

¶3 In 2014, Caldier challenged Seaquist for his 26th District State Representative position. On August 29, 2014, after attending a political candidate endorsement interview at the Kitsap Sun office in Bremerton, both candidates exited the building and went to their respective vehicles. Seaquist's vehicle was parked directly behind Caldier's along the street. While both candidates were sitting in their cars, but before either drove off, Seaquist took two identical photos of the back of Caldier's car. Seaquist later stated that he was impressed with the mechanics of the car's convertible roof and that he took the photograph to assist him in remembering the car's make and model.

¶4 The photos show the back of a white Lexus IS250 C convertible with the top down. The photos are a wide angle shot, with the street on the left, sidewalk and parking lot on the right, and the bottom of the frame shows the dashboard of the vehicle from which the photos were taken. On close inspection, a portion of Caldier's face can be seen through the rearview mirror of the Lexus. Caldier's red sunglasses cover most of the portion of her face that can be seen in the mirror.

¶5 Caldier noticed what Seaquist was doing, exited her car, and asked Seaquist if he had taken photos. Seaquist responded in the affirmative.

¶6 Four days later, on September 2, Caldier posted on Facebook saying, "I came out of a candidate interview and saw Rep. Larry Seaquest [sic], my opponent, taking pictures of me as I got into my car. Wow. ... I felt like I was being stalked!" Clerk's Papers (CP) at 708. Individuals commented on Caldier's post saying things like, "That's kinda creepy," "Wow, gross," "You might just be his midnight fantasy," and "I am happy to be your bodyguard." CP at 708-09. Caldier "liked" a number of the comments referring to Seaquist as weird, creepy, and gross. CP at 508-12. Eventually Caldier removed the post.

¶7 On September 5, Caldier filed a police report with the Bremerton Police Department.

She spoke with Officer Robert Davis Jr. who filled out the demographic and narrative pages of a police report. Caldier said that "on a couple of occasions" Seaquist took her photograph getting out of a car or in public. CP at 84. Officer Davis wrote, "I advised Caldier that from what she has told me Seaquist has not committed any crime." CP at 84. The report also notes that Caldier stated people had taken photos of her home and children and trespassed on her property. Caldier further stated that she did not want Seaquist contacted.

¶8 A week later, on September 12, Steven Gardner of the Kitsap Sun wrote an article discussing Caldier's Facebook post and police report, and garnered comments from both candidates about the incident. The article included Seaquist's photo of Caldier and her car, which Caldier acknowledges she saw when she read the article.

¶9 On October 8, the Caldier campaign released a video ad on YouTube and local television mentioning the incident. A portion of the video included an actor saying, "Seaquist was caught secretly photographing Michelle, invading her privacy." Ex. B. When the actor said this, the screen showed a doctored photograph making Seaquist appear to be hunched over taking a photo with text underneath stating, "Larry Seaquist was caught secretly taking photos of Caldier." CP at 712 (capitalization omitted). The video also showed text saying, "Source: Police report filed September 5, 2014." Ex. 1 at Ex. B (capitalization omitted). Caldier approved the video.

¶10 On October 10, Caldier was interviewed on a radio show. The following exchange occurred:

[Host]: Well, let me ask both of you, then-Melanie and Michelle [Caldier]-you're Republicans, right? And we're told that Republicans have a war on women. Why in the world did you choose the Republican Party? Why don't you each step in and let me know? Michelle, why don't you go first?
[Caldier]: Well, it's funny because I did not even know that there was a war on women. In fact, I have had so much support from the party, and, you know, with some of the experiences I've gone through. I've been actually harassed and had people take pictures of me, had my opponent take pictures of me. I'd have to say that the Democrats probably have more of a war of women, with my experience.

CP at 88-89.

¶11 Sometime near October 16, Caldier sent out a campaign mailer to voters in Kitsap and Pierce counties. One side of the mailer contained the same doctored image of Seaquist as seen in the campaign video. Seaquist was made to appear hunched over, with his coat collar up, sneakily taking a photo with a camera phone while in a grassy area. In print, the mailer read, "WHY WAS LARRY SEAQUIST TAKING PICTURES of Michelle Caldier?" CP at 93. Underneath this, the mailer stated, "CALDIER FILES POLICE REPORT." CP at 93.

¶12 On the other side of the mailer, a number of statements were under the heading, "CALDIER FILES POLICE REPORT AGAINST SEAQUIST." CP at 94. On the left side were two separate statements, "Why Were Seaquist Campaign People Taking Pictures at Caldier Home?" and, directly beneath, "Caldier Files Police Report Against Seaquist." CP at 94. The middle of the mailer had the heading, "Multiple Incidents Lead to Concern by Caldier." CP at 94.

¶13 Under this, there was text on the left and an image of a demographic page of the police report Caldier filed against Seaquist. The text stated:

It started with unwelcome strangers taking pictures of her home. Then the mailbox was tampered with leading to the likelihood of trespassing-a Federal offense. The final straw was an inappropriate intrusion by Larry Seaquist himself, sneakily taking pictures of Michelle while she was getting in to her car.
Enough is enough! Michelle filed a police report seen here to communicate a message to Larry Seaquist and his campaign staff that they had crossed the line. Friendly campaigning had turned into what felt like stalking and harassment to Ms. Caldier, so she took action.

CP at 94.

¶14 Under this block of text, there was a photo. The photo showed the hands of a person taking a photo of Caldier in her car. The photographer was at the passenger side window taking the photo of Caldier's profile. Next to this photo and under the police report image was a photo of Seaquist. Under Seaquist's photo and in large lettering, the mailer stated, "Larry Seaquist Should be Ashamed." Under this, "You would expect a higher level of integrity from a man with Larry Seaquist's experience. Has the Seaquist team resorted to dirty tactics to win? It appears so." CP at 94. Finally, on the right side of the mailer, there was a picture of Caldier with the accompanying text, " 'I don't think a female candidate is supposed to feel like I have felt in the privacy of my own home and car. This kind of behavior is concerning and possibly illegal.'-Michelle Caldier." CP at 94.

¶15 A website promoting Caldier's campaign, Larryseaquistfacts.com, posted the same graphics and statements as the mailer, except for Caldier's picture and quote. The website contained additional information recounting and criticizing Seaquist's political stances. Caldier acknowledged that this website promoted her campaign, but she denied running it or directing the content of the site. Caldier's campaign staff, however, acknowledged running the website as part of the Caldier campaign.

II. PROCEDURAL HISTORY

¶16 After the Seaquists filed suit alleging defamation and false light. The lawsuit was dismissed, but later reinstated.

¶17 After the superior court vacated its prior dismissal and findings, Caldier moved for summary judgment, which the superior court granted in part and denied in part. In its order, the court examined each statement and denied summary judgment regarding the statements it found to potentially support a defamation by implication claim. Because the court noted a split of authorities as to whether defamation by implication was a viable theory in this State, it certified the question to this court. However, the Seaquists renounced any defamation by implication claim and, as a result, we denied discretionary review.

¶18 The trial court, after requiring the Seaquists to expressly state they waived any defamation by implication claims, granted Caldier's motion for summary judgment dismissing the case. The Seaquists appeal.

ANALYSIS

I. DEFAMATION AND FALSE LIGHT: LEGAL PRINCIPLES

¶19 Washington has adopted Restatement (Second) of Torts § 652E, recognizing invasion of privacy by false light as an independent claim. Eastwood v. Cascade Broad. Co. , 106 Wash.2d 466, 471, 473-74, 722 P.2d 1295 (1986). Defamation and invasion of privacy by false light are similar, yet distinct, causes of action. See Eastwood , 106 Wash.2d at 470-471, 722 P.2d 1295. Although both actions rest on the disclosure of false or misleading information, they require different elements and allow for recovery of different damages. Duc Tan v. Le , 177 Wash.2d 649, 662, 300 P.3d 356 (2013) ; Eastwood , 106 Wash.2d at 470-71, 722 P.2d 1295.

¶20 A prima facie defamation claim requires a plaintiff to prove falsity, an unprivileged communication, fault, and damages. Duc Tan , 177 Wash.2d at 662, 300 P.3d 356. An invasion of privacy by false light arises when a defendant publishes statements that place a plaintiff in a false light if (1) the false light would be highly offensive and (2) the defendant knew of or recklessly disregarded the falsity of the publication and the subsequent false light it would place the plaintiff in. Eastwood , 106 Wash.2d at 470-71, 722 P.2d 1295.

¶21 "The theoretical difference between the two torts is that a defamation action is primarily concerned with compensating the injured party for damage to reputation, while an invasion of privacy action is primarily concerned with compensating for injured feelings or mental suffering." Eastwood , 106 Wash.2d at 471, 722 P.2d 1295. A plaintiff does not need to be defamed in order to bring a false light claim, but any defamation action potentially gives rise to a false light claim. Eastwood , 106 Wash.2d at 471, 722 P.2d 1295.

¶22 When the plaintiff is a public figure, both torts require proof of actual malice. Duc Tan , 177 Wash.2d at 662, 300 P.3d 356 ; Hoppe v. Hearst Corp. , 53 Wash. App. 668, 675-76, 770 P.2d 203 (1989). Actual malice is a defendant's knowledge of the statement's falsity or reckless disregard of the truth or falsity of the statement. Duc Tan , 177 Wash.2d at 669, 300 P.3d 356 ; RESTATEMENT (SECOND) OF TORTS § 652E (1997).

¶23 We review an order of summary judgment de novo, performing the same inquiry as the trial court. Mohr v. Grant , 153 Wash.2d 812, 821, 108 P.3d 768 (2005). Summary judgment is proper and the moving party is entitled to judgment as a matter of law when the nonmoving party shows no issue of material fact. Mohr , 153 Wash.2d at 821, 108 P.3d 768 ; CR 56(c). In a defamation action, summary judgment serves as an early test of the plaintiff's evidence. Mark v. Seattle Times , 96 Wash.2d 473, 486-87, 635 P.2d 1081 (1981). To defeat a defendant's motion for summary judgment on a defamation claim, the plaintiff "must establish a prima facie case by evidence of convincing clarity." Mark , 96 Wash.2d at 487, 635 P.2d 1081.

II. DEFAMATION

¶24 The Seaquists argue that they have shown a prima facie claim of defamation by Caldier's Facebook post, campaign video, statement during a radio broadcast, and statements within a campaign mailer and similar website. We disagree.

A. Legal Principles

¶25 As stated above, a prima facie defamation claim requires a plaintiff to prove falsity, an unprivileged communication, fault, and damages. Duc Tan , 177 Wash.2d at 662, 300 P.3d 356. In proving falsity for a defamation claim, a plaintiff must prove either a statement was false or a statement left a false impression by omitted facts. Mohr , 153 Wash.2d at 823, 108 P.3d 768. A provably false statement is one that, as either a statement of fact or opinion, falsely expresses or implies provable facts about the plaintiff. Schmalenberg v. Tacoma News, Inc ., 87 Wash. App. 579, 590-91, 943 P.2d 350 (1997). When determining whether an article is defamatory, a court considers it as a whole and construes it by its ordinary meaning to a person reading it. See Mark , 96 Wash.2d at 496, 635 P.2d 1081 ; Carey v. Hearst Publ'ns, Inc. , 19 Wash.2d 655, 659, 143 P.2d 857 (1943).

¶26 The First Amendment protects an individual's right to express an opinion, or "fairly comment," on a matter of public interest. Dunlap v. Wayne , 105 Wash.2d 529, 537, 716 P.2d 842 (1986). Specifically, the First Amendment applies to the fullest extent during a political campaign. Rickert v. Pub. Disclosure Comm'n , 161 Wash.2d 843, 848, 168 P.3d 826 (2007).

¶27 An alleged defamatory statement must be a stated fact, not a stated opinion. Dunlap , 105 Wash.2d at 537, 716 P.2d 842. However, a stated opinion may be actionable if it implies defamatory facts. Dunlap , 105 Wash.2d at 538, 716 P.2d 842. The distinction between a fact and an opinion implying defamatory facts requires a court to consider the totality of the circumstances. Dunlap , 105 Wash.2d at 539, 716 P.2d 842. To determine whether an opinion implies undisclosed defamatory facts, courts consider "(1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts." Dunlap , 105 Wash.2d at 539, 716 P.2d 842. Statements are more likely to be opinion when in the context of a political debate. Dunlap , 105 Wash.2d at 539, 716 P.2d 842. Further, in the context of ongoing public debate, audiences are prepared for mischaracterizations, rhetoric, and exaggerations, and are "likely to view such representations with an awareness of the subjective biases of the speaker." Dunlap , 105 Wash.2d at 539, 716 P.2d 842.

¶28 In proving falsity, a plaintiff must show either a false statement or a statement that leaves a false impression. Mohr , 153 Wash.2d at 823, 108 P.3d 768. A provably false statement is one that, as either a statement of fact or opinion, falsely expresses or implies provable facts about the plaintiff. Schmalenberg , 87 Wash. App. at 590-91, 943 P.2d 350. A defendant is not required to prove the literal truth of every claimed defamatory statement. Mohr , 153 Wash.2d at 825, 108 P.3d 768. The gist of the story or the portion carrying the "sting" must be substantially true. Mohr , 153 Wash.2d at 825, 108 P.3d 768. When a defendant makes a mixture of true and false statements, "a false statement (or statements) affects the 'sting' of a report only when 'significantly greater opprobrium' results from the report containing the falsehood than would result from the report without the falsehood." Mohr , 153 Wash.2d at 826, 108 P.3d 768.

B. Alleged Defamatory Statements by Caldier

¶29 The Seaquists argue that Caldier's statements were false or based on false facts and, thus, sufficient to overcome an order granting summary judgment in Caldier's favor. Because Caldier's statements are either true, nonactionable opinions, or statements about others, we hold that the trial court did not err in granting Caldier's motion for summary judgment regarding the defamation claim.

¶30 Considering the Dunlap factors, the audiences here, whether online, over the radio, through television, or in receipt of campaign mailers, would fully expect political campaign materials to be saturated with mischaracterizations, rhetoric, and exaggeration. All the alleged defamation was through campaign communications or a campaign interview. The First Amendment plays an extremely important role in political speech during campaigns. See Rickert , 161 Wash.2d at 848, 168 P.3d 826. Political mudslinging is expected by audiences during contentious elections. The race between Caldier and Seaquist for the 26th District State Representative position was no exception. It is through a political campaign lens that we consider Caldier's statements.

1. Facebook Post

¶31 Caldier's Facebook post stated, "I came out of a candidate interview and saw Rep. Larry Seaquest [sic], my opponent, taking pictures of me as I got into my car. Wow. ... I felt like I was being stalked!" CP at 708.

¶32 Here, the Seaquists did not present evidence that this statement was substantially false. Seaquist admits to taking pictures of Caldier after she got into her car and before driving away. Although it appears that Caldier was seated in her car when the photo was taken, the gist of the statement is true. Caldier's accompanying opinion about feeling "stalked" cannot be defamatory because there are no provable facts to the contrary. Caldier feeling "stalked" is her opinion based on her perception of the incident. Accordingly, the Seaquists' defamation claim as to the Facebook post was properly dismissed by the trial court.

2. Campaign Video

¶33 Caldier's campaign published an attack video capitalizing on Seaquist taking the photos. A portion of the video included an actor saying, "Seaquist was caught secretly photographing Michelle, invading her privacy." Ex. B. When she said this, on screen, there was a doctored graphic showing Seaquist hunched over taking a photo and text underneath stating, "Larry Seaquist was caught secretly taking photos of Caldier." Ex. B. The video also reads, "Source: Police report filed September 5, 2014." Ex. B.

¶34 Again, Seaquist did take pictures of Caldier without her permission. If Caldier had not noticed Seaquist taking the photos, seemingly no one else would have known. While Seaquist says he was not being secretive, it is not provably false to describe his actions as secretive. The phrase, "invading her privacy," is an opinion and is not provably false either. While the Seaquists point out that it is not illegal to take photos of someone on the street and that a person has no legal expectation of privacy when moving about in public, a person's feeling of privacy is not provably false. Caldier's opinions and feelings about her personal privacy cannot be the basis of a defamation claim.

¶35 Further, although the photoshopped image of Seaquist taking a photo is deceiving, the gist is true. Similarly, Caldier did indeed file a police report on September 5, 2014, alleging that Seaquist had taken pictures of her. Accordingly, the campaign attack video cannot be the basis of a defamation claim.

3. Radio Show Statement

¶36 On the radio show, Caldier stated, "I have had so much support from the [Republican] party, and, you know, with some of the experiences I've gone through. I've been actually harassed and had people take pictures of me, had my opponent take pictures of me. I'd have to say that the Democrats probably have more of a war on women, with my experience." CP at 89.

¶37 Here, the only statement Caldier makes referencing Seaquist is that he took pictures of her. This statement is true. Accordingly, Caldier's statements on the radio show cannot be the basis of a defamation claim.

4. Campaign Mailer and Website

¶38 Caldier's campaign mailer contained a number of statements attacking Seaquist. Many of these statements were repeated on the website, Larryseaquistfacts.com.

a. True Statements

¶39 The mailer contained three true statements: (1) "WHY WAS LARRY SEAQUIST TAKING PICTURES of Michelle Caldier?" (2) "CALDIER FILES POLICE REPORT," and (3) "CALDIER FILES POLICE REPORT AGAINST SEAQUIST." CP at 93-94. Seaquist did take pictures of Caldier, and Caldier did indeed file a police report after the incident. Although Seaquist disagrees with the content of the police report itself, Caldier's broad statement about filing a report is factually correct. Caldier simply states true facts; Seaquist took pictures of Caldier and she filed a police report.

b. Opinions

¶40 The mailer contained multiple opinions. The mailer stated, "Larry Seaquist should be ashamed. You would expect a higher level of integrity from a man with Larry Seaquist's experience. Has the Seaquist team resorted to dirty tactics to win? It appears so." CP at 94. It also read, " 'I don't think a female candidate is supposed to feel like I have felt in the privacy of my own home and car. This kind of behavior is concerning and possibly illegal.'-Michelle Caldier." CP at 94. These statements are nonactionable opinions and do not imply undisclosed defamatory facts.

c. Statements About Others, Not Seaquist

¶41 The mailer asked, "Why were Seaquist campaign people taking pictures at Caldier home?" CP at 94. Although posed as a question, this statement implies that Seaquist's "campaign people" took pictures of Caldier's home. The group of "campaign people" is so broad as to leave a person unsure of who Caldier is referring to. She does not attribute actions directly to Seaquist, his campaign staff, or anyone directly under Seaquist's direction. This question is not defamatory to Seaquist, it asks a question about other people, not him.

d. Mixed Statements

¶42 The body of the mailer had the heading: "Multiple Incidents Lead to Concern by Caldier." CP at 94. This was followed by two paragraphs:

It started with unwelcome strangers taking pictures of her home. Then the mailbox was tampered with leading to the likelihood of trespassing-a Federal offense. The final straw was an inappropriate intrusion by Larry Seaquist himself, sneakily taking pictures of Michelle while she was getting in to her car.
Enough is enough! Michelle filed a police report seen here to communicate a message to Larry Seaquist and his campaign staff that they had crossed the line. Friendly campaigning had turned into what felt like stalking and harassment to Ms. Caldier, so she took action.

CP at 94.

¶43 This portion of the mailer described what gave Caldier concern. This concern is an expressed opinion. Caldier stated that strangers took pictures of her home and that her mailbox was tampered with. However, she did not directly attribute either of these to Seaquist. Caldier again states that Seaquist took her picture, which is true. Explaining why Caldier filed a police report and expressing a feeling of stalking and harassment are opinions. Although the placement of certain statements in proximity to others suggested connections and correlations between them, the mailer did not expressly note anything beyond true facts, opinions, or actions not attributed to Seaquist himself.

e. Doctored Image and Photo

¶44 The Seaquists take issue with two images on the mailer. The first was the same doctored image of Seaquist holding a phone that was included in the campaign video. As we discussed above, the gist of this image is true. The second photo was a person's hands taking a photo of Caldier in her car. The photographer was at the passenger side window taking the photo of Caldier's profile. The broad gist of what the photo is attempting to recreate is true. Although the position of the photographer may be misleading, Seaquist did take a photo of Caldier in her car.

f. Campaign Mailer as a Whole

¶45 We next view Caldier's campaign mailer as a whole to construe it by its ordinary meaning to a person reading it. See Mark , 96 Wash.2d at 496, 635 P.2d 1081. Although the mailer is unquestionably misleading and ignoble, we hold that it is not provably false. The statements are either true, directed at people other than Seaquist personally, or opinion. The statements may carry negative and false implications, but because the Seaquists contend falsity in the statements themselves and not defamation by implication, they may overcome summary judgment only by proving falsity by convincing clarity. See Mohr , 153 Wash.2d at 823, 108 P.3d 768.

5. Larryseaquistfacts.com Website

¶46 The Seaquists also assert, based on the previously discussed statements and photographs that Larryseaquistfacts.com is defamatory. For the reasons discussed above, even assuming the website is attributable to Caldier, the statements on the website are not defamatory. The statements are either true, opinion, or statements about others.

C. The Seaquists Failed To Establish a Prima Facie Case

¶47 Accordingly, the Seaquists have failed to prove the falsity requirement of defamation with convincing clarity because all of Caldier's statements were either true, opinion, or statements concerning actions not attributable to Seaquist. As a result, the trial court did not err in granting Caldier's motion for a final judgment dismissing the defamation claim.

III. FALSE LIGHT

¶48 The Seaquists argue that a final judgment should not have been entered regarding their false light claim. We disagree.

A. Legal Principles

¶49 A false light claim arises when a person publishes statements that place another in a false light if (1) the false light would be highly offensive and (2) the publisher knew of or recklessly disregarded the falsity of the publication and the subsequent false light it would place the other in. Eastwood , 106 Wash.2d at 470-471, 722 P.2d 1295 ; RESTATEMENT (SECOND) OF TORTS § 652E (1977). A plaintiff does not need to be defamed in order to bring a false light claim. Eastwood , 106 Wash.2d at 471, 722 P.2d 1295. However, the plaintiff must allege falsity. Emeson v. Dep't of Corr. , 194 Wash. App. 617, 640, 376 P.3d 430 (2016). When a public figure plaintiff alleges false light, he must also prove the defendant acted with actual malice. Hoppe , 53 Wash. App. at 675-76, 770 P.2d 203.

¶50 Unlike defamation, our case law does not explicitly require a plaintiff to show a prima facie false light claim to overcome a defendant's motion for summary judgment. However, other jurisdictions require such prima facie showings. See S.B. v. Saint James Sch. , 959 So.2d 72, 93 (Ala. 2006) ; Kitt v. Capital Concerts, Inc. , 742 A.2d 856, 859 (D.C. App. 1999). Requiring a prima facie showing of a false light claim weighs First Amendment considerations alongside the personal interests intended to be protected by invasion of privacy torts. Our Supreme Court in Eastwood held that false light is subject to the defamation statute of limitations period because of the parallels between the two torts. Eastwood , 106 Wash.2d at 469, 722 P.2d 1295. Similarly, we implement a requirement that a plaintiff must present a prima facie case of false light to overcome a motion for summary judgment.

B. Alleged False Light of Seaquist

¶51 Here, for the same reasons the Seaquists were unable to show falsity for defamation, they fail to show falsity for a false light claim. The Seaquists allege only that Caldier made false statements. We emphasize again that the Seaquists do not allege that the implications of her statements are false. Because no statement is provably false, the Seaquists do not present a prima facie case of false light. Accordingly, the trial court did not err when it granted summary judgment in favor of Caldier on the false light claim.

CONCLUSION

¶52 The Seaquists were required to establish a prima facie case for their defamation and false light claims. Because they failed to establish a prima facie case for either a defamation or a false light claim, we affirm the trial court's summary judgment dismissal of both claims.

We concur:

Maxa, C.J.

Melnick, J.

      At some time during 2014, Caldier's neighbor alerted her that some of her mail was on the ground instead of inside the mailbox as if a person had gone through it. Caldier also noticed someone who said he was a real estate appraiser taking photographs of her recently purchased house. Caldier's sister, who served as her campaign manager, also noticed someone taking photos of her own house.

      Caldier made a special motion to strike the complaint under the Washington act limiting "Strategic Lawsuits Against Public Participation" (anti-SLAPP statute), RCW 4.24.525. Following the trial court's dismissal of the Seaquists' claim under that statute and during the pendency of an appeal, our Supreme Court found the anti-SLAPP statute unconstitutional. See Davis v. Cox , 183 Wash.2d 269, 351 P.3d 862 (2015). Accordingly, the Supreme Court dismissed the Seaquists' appeal, remanding the case to the superior court.

      At oral argument, the Seaquists reaffirmed that they were not claiming defamation by implication.

      Because the Seaquists argue falsity only by false statements, we do not discuss whether falsity by implication can support a false light claim. See Restatement (Second) of Torts § 652E cmt. b; Mohr , 153 Wash.2d at 825, 108 P.3d 768.