author: Andrus, J.

text:
    MORPHO DETECTION, INC., Appellant, v. State of Washington, DEPARTMENT OF REVENUE, Respondent.
    No. 79066-8-I
    Court of Appeals of Washington, Division 1.
    FILED: April 29, 2019
    Robert Lee Mahon III, Perkins Coie LLP, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3095, for Appellant.
    Joshua Weissman, WA Attorney Generals Office, Po Box 40123, Olympia, WA, 98504-0123, for Respondent.
    PUBLISHED OPINION
   Andrus, J.

¶1 Morpho Detection, Inc. (MDI) seeks reversal of summary judgment in which the trial court held, based on this court's ruling in Morpho Detection. Inc., v. Department of Revenue, 194 Wash. App. 17, 371 P.3d 101, review denied, 186 Wash.2d 1010, 380 P.3d 502 (2016), that MDI is liable for use tax under RCW 82.04.190(6). Because this court's published decision clearly erred in reaching a factual issue not briefed to the court, we conclude our prior decision should be modified to narrow its holding to the issue properly presented to it. We thus reverse summary judgment.

FACTS

¶2 The Washington State Department of Revenue (DOR) assessed use tax on MDI's sale of explosive detection machines (EDMs)

to the United States Transportation Security Administration (TSA) that were deployed in the Seattle-Tacoma (Sea-Tac) and Spokane airports. MDI paid the assessment and sought a $ 5.3 million refund under RCW 82.32.180, claiming it was not a "consumer" subject to the use tax under RCW 82.12.020(1)(a). The term "consumer" is defined in relevant part in RCW 82.04.190(6) :

Any person engaged in the business of constructing, repairing, decorating, or improving new or existing buildings or other structures under, upon, or above real property of or for the United States, any instrumentality thereof, ... including the installing or attaching of any article of tangible personal property therein or thereto, whether or not such personal property becomes a part of the realty by virtue of installation ....

¶3 MDI alleged two separate legal bases for its refund request. First, it alleged the airports in which its EDMs were used were not the "real property of or for the United States." Second, MDI claimed it did not construct, repair, decorate, or improve any new or existing buildings or structures, and did not incorporate, install, or attach the EDMs to any building or structure in Washington.

MDI's 2014 Summary Judgment Motion

¶4 In June 2014, MDI filed a motion for summary judgment. MDI first argued it was not engaged in the business of "constructing, repairing, decorating, or improving new or existing buildings or other structures." It anticipated DOR would argue that MDI installed the EDMs at the airports and that this installation work made MDI a company in the business of "constructing, repairing, decorating or improving any building."

¶5 MDI indicated in footnotes to its summary judgment motion that the parties disputed the meaning of the word "installing" as used in RCW 82.04.190(6) and "whether MDI's activities amount to 'installing.' " But it recognized that "[f]or purposes of this motion, all disputed facts must be assumed in [DOR's] favor." It informed the trial court that, for purposes of its motion, the court must assume MDI installed the EDMs at the airports even though MDI and DOR disputed this fact. But it argued "the mere installation of EDMs alone does not make MDI a person in the business of constructing, repairing, decorating or improving any building," even if the EDMs "improved" the airport buildings where they were deployed.

¶6 In support of its motion, MDI presented evidence that its EDMs were manufactured and sold to TSA in California and shipped to TSA in Texas. TSA then deployed some of the equipment to airports in states other than Washington before TSA brought 41 EDMs to the Sea-Tac airport and another 5 to the Spokane airport. Because each EDM is large and needs to be partially disassembled before shipment, MDI agreed to reassemble each machine at any airport in the United States at which TSA deployed them and to assist with testing after reassembly to certify the machines were operational. MDI also provided evidence that when TSA chose to purchase rigging services from MDI, MDI subcontracted that work to unaffiliated third parties. These third parties, and not MDI, anchored the machines to the buildings in which they were installed. MDI's Contracts Administrator testified that in the sales contracts for the EDMs deployed in Washington, "the only activities MDI performed in Washington involved assembly, disassembly, moving, uncrating, crating, and testing of machines." Additionally,

6. MDI did not install any EDMs in Washington as the term is typically understood.
7. MDI is not in the business of constructing, repairing, decorating, or improving new or existing buildings or other structures as those terms are normally understood. Moreover, MDI did not construct, decorate, repair or improve any building in Washington during the audit period.
8. MDI is in the business of manufacturing, marketing and supporting the EDM[s] it sells. All of MDI's work in Washington is consistent with this business.

¶7 As MDI anticipated, DOR argued MDI was in the business of improving buildings. It presented evidence MDI earned millions of dollars for work at airports after selling the EDMs. It submitted copies of MDI prospectus filings, work proposals, delivery orders, installation checklists, and invoices, all of which it contended evidenced MDI's provision of a significant amount of installation services. It argued "even if the court were to agree with [MDI] that a company must engage in some threshold amount of improvement activity to trigger the use tax, a question of fact would exist as to whether [MDI] meets that threshold."

¶8 MDI's second argument on summary judgment was that RCW 82.04.190(6) only applies if the construction work occurs on property belonging to the United States government. It presented evidence from the General Counsel to the Spokane Airport and a Project Manager for the Port of Seattle who both testified that the United States government had no property interest in the airports. But DOR argued the tax statute applied to any work on real property when that work is done for the United States, regardless of whether the real property on which the work is performed belongs to the United States government. Because the federal government paid for MDI's work, DOR argued, the work was "for" the United States within the meaning of RCW 82.04.190(6). DOR asked the trial court to deny MDI's motion and "grant partial summary judgment to [DOR], as the nonmoving party, on the legal issues that [MDI] raises."

¶9 The trial court granted summary judgment to MDI on this second issue only. It ruled:

1. Regarding the issue of whether [MDI] was "engaged in the business of constructing, decorating, or improving new or existing buildings or other structures," a genuine issue of material fact exists that precludes summary judgment.
2. Regarding the issue of whether any such work occurred "under, upon, or above real property of or for the United States," no genuine issue of material fact exists and [MDI] is entitled to judgment as a matter of law.

It denied DOR's request for partial summary judgment.

DOR's Appeal

¶10 DOR appealed to this court. It assigned error to the granting of MDI's motion for summary judgment, the denial of its request for partial summary judgment, and the trial court's legal ruling that for the use tax to apply under ROW 82.04.190(6), the United States must have a beneficial interest in the real property on which buildings are improved. The sole issue, as defined by DOR, was "[d]id the trial court err when it ruled that [MDI] improved buildings neither 'of nor 'for' the United States under ROW 82.04.190(6) and thus did not owe use tax on the value of the personal property it installed?"

¶11 In both DOR's and MDI's briefing, the parties informed this court that MDI had conceded solely for purposes of summary judgment that it installed EDMs at Sea-Tac and the Spokane airports. The focus of the briefing was whether ROW 82.04.190(6) applied to construction activities only on federal government property or whether the statute also applied to construction activities undertaken for the federal government on property belonging to others. Neither party briefed nor argued whether a genuine issue of material fact existed as to whether MDI was "engaged in the business of constructing, decorating, or improving new or existing buildings or other structures."

Court of Appeals Decision

¶12 On March 28, 2016, this court issued its decision, reversing the trial court and holding that MDI was a "consumer" subject to the use tax. Morpho, 194 Wash. App. at 19, 371 P.3d 101. The court described the issue on appeal as follows:

[MDI] moved for summary judgment on the issue of whether it fell under the definition of a "consumer" in RCW 82.04.190(6) and was therefore subject to the use tax. DOR cross moved for partial summary judgment on the same issues. The trial court agreed with [MDI] that the term "of or for" as used in RCW 82.04.190(6) modifies the term "real property." Thus, in order to meet the statutory definition of a "consumer," the work done by [MDI] had to have been done on either real property "of the United States," i.e., owned by the United States, or real property "for the United States," i.e., property in which the United States held a lesser property interest, such as "a lease, a license, an easement or something of that issue." Because it was undisputed that the United States neither owned nor held a lesser property interest in Sea-Tac or the Spokane airport, the trial court ruled that [MDI] was not a consumer and not subject to the use tax. DOR appeals the trial court's order granting summary judgment in [MDI's] favor and the denial of its motion for partial summary judgment.

Id. at 21, 371 P.3d 101 (citations omitted). In its analysis, the court stated "[MDI] conceded at trial that it installed the detection systems in Washington." Id. at 23, 371 P.3d 101. It then defined the sole point of contention on appeal-"the plain meaning of the phrase 'for the United States' as it is used in the statutory definition of 'consumer.' " Id. The court rejected MDI's interpretation of this language and concluded that "the use tax applies to a contractor who installs tangible property on real property either owned by the federal government or for the federal government." Id. at 28, 371 P.3d 101. In the latter circumstance, we held, "it is irrelevant whether the United States also has some interest in the real property on which the work is done." Id. We then stated:

Here, because it is undisputed that [MDI] installed security systems for the United States at Sea-Tac and the Spokane airport, it is a consumer, as a matter of law, under RCW 82.04.190(6). Accordingly, we reverse and remand for entry of an order granting partial summary judgment in favor of DOR.

Id. MDI did not move for reconsideration of this court's factual statement that "it is undisputed that [MDI] installed security systems" in the airports.

MDI's Petition for Discretionary Review

¶13 MDI sought discretionary review of this court's decision with the Washington Supreme Court. In its petition for review, MDI summarized DOR's position-"[DOR] alleges that [MDI] installed the machines at the airports and thereby improved the airport buildings." In a footnote, MDI stated it "disputes that it performed such installation and/or that such installation improved any building. For purposes of its motion for summary judgment, such allegations were assumed true." DOR's answer to the petition did not take issue with this characterization of its position or argue the concession had been waived by MDI's failure to seek reconsideration of this court's decision.

¶14 The Supreme Court denied review on September 28, 2016, 186 Wash.2d 1010, 380 P.3d 502, and the mandate issued on October 27, 2016.

DOR's 2017 Summary Judgment Motion

¶15 In August 2017, DOR filed a summary judgment motion seeking dismissal of MDI's claims. DOR argued this court's decision, holding that MDI is a "consumer" subject to the use tax, was law of the case and required dismissal of any claim for a tax refund. It contended the "broad holding of the Court of Appeals resolved [MDI's] statutory claims." In opposing the motion, MDI argued it "has always contended its work was not installation." MDI submitted the declaration of a construction superintendent who worked at Sea-Tac when the EDMs were placed into service. He testified MDI did not install any of the EDMs at Sea-Tac; instead, the TSA hired third-party contractors to do this work. In addition, a Project Manager for MDI similarly testified that it supplied and assembled the machines but did not install the machines into any building or structure. According to him, all rigging, anchoring, electrical wiring, and plumbing was performed by TSA contractors, not MDI. DOR, in its reply briefing, indicated the factual evidence was irrelevant because the Court of Appeals' decision that MDI was a consumer was the unambiguous law of the case.

¶16 At oral argument on this motion, the trial court noted that the

Court of Appeals decision ... explicitly says something, finding as a matter of law that [MDI] is a consumer apparently based on a misunderstanding of what happened below because there was a concession for the purposes of summary judgment. The Court of Appeals has this statement that they have conceded this when it really wasn't a true concession.

DOR conceded that the trial court's explanation of what occurred was "the most likely interpretation of the facts." DOR argued there was a possibility the Court of Appeals, in conducting its de novo review of the record, decided to reach the issue not briefed by the parties-namely whether MDI installed the EDMs and whether that installation work sufficed to make MDI a person in the business of improving real property. The trial court was skeptical, noting "they would have done that silently then because they certainly didn't say they were doing that." DOR agreed that while possible, it was unlikely this court chose this path.

¶17 The trial court ruled it was bound by this court's decision under law of the case. It stated:

With respect to the statutory claims, the Court of Appeals has explicitly stated that [MDI] is a consumer as a matter of law. While it is quite possible that the Court of Appeals made that statement based on an erroneous understanding of a concession that was not perhaps done in the spirit that was intended or construed by the Court of Appeals, there is in multiple places in the Court of Appeals opinion in this case the statement that [MDI] is a consumer as a matter of law. The appropriate way to address that would have been through a motion for reconsideration with the Court of Appeals.
Additionally, the importance behind that is the fact that there is an alternative explanation, which I cannot say with certainty is not the case, which is the one that I just identified, in that on summary judgment on the proper circumstances, judgment can be entered in favor of the non-moving party. The record could have been sufficiently developed from the perspective of the Court of Appeals to do that in this case.

The trial court granted DOR's motion for summary judgment and dismissed MDI's claims, both statutory and constitutional. MDI appeals.

ANALYSIS

¶18 MDI raises two issues on appeal. First, MDI argues the trial court misinterpreted this court's decision in granting summary judgment on the "consumer" issue to DOR. Second, MDI asks this court to overrule the prior decision to the extent it reached and resolved an issue of disputed fact without briefing by the parties.

¶19 We agree with the trial court and DOR that this court's decision is unambiguous and clearly decided that MDI was a "consumer" under RCW 82.04.190(6). We therefore reject MDI's first argument.

¶20 We agree with MDI, however, that the Court of Appeals' decision was based on the erroneous assumption that MDI had conceded that it had in fact installed the EDMs at Sea-Tac and the Spokane airport. We conclude this error requires us to narrow the holding of our prior decision and to acknowledge, as DOR did in its briefing and at oral argument, that genuine issues of fact exist as to whether MDI engaged in the business of improving real property by installing EDMs at the airports.

¶21 The law of the case doctrine stands for the proposition that once there is an appellate holding enunciating a principle of law, that holding will be followed in subsequent stages of the same litigation. Roberson v. Perez, 156 Wash.2d 33, 41, 123 P.3d 844 (2005). RAP 2.5(c) codifies this important doctrine. But there is an exception to the rule:

(c) Law of the Case Doctrine Restricted. The following provisions apply if the same case is again before the appellate court following a remand:
....
(2) Prior Appellate Court Decision. The appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court's opinion of the law at the time of the later review.

RAP 2.5(c)(2).

¶22 As our Supreme Court noted in Roberson, an appellate court is not obligated to perpetuate its own error.

156 Wash.2d at 42, 123 P.3d 844. Roberson sets out the test for deviating from the law of the case doctrine-whether the prior decision was clearly erroneous and, if so, whether the erroneous decision works a manifest injustice to one party. Id.

¶23 We conclude MDI has demonstrated clear error. This court's broad holding was based on the admittedly erroneous assumption that MDI had conceded it installed the EDM equipment at Sea-Tac and the Spokane airport. Yet, there was evidence in the record that MDI had played no role in the physical installation process and that a contractor other than MDI hoisted the machines, turned the wrenches, wired the machinery, and plumbed their piping. The trial court ruled there were genuine issues of fact on the issue of whether MDI constructed or improved real property. And DOR concedes there was conflicting evidence before the trial court on that issue.

¶24 The more difficult question is whether perpetuating the error causes MDI to suffer a manifest injustice. The parties agree MDI did not seek reconsideration from this court or raise the error in its petition for review. DOR argues by failing to do so, MDI waived its right to seek a Roberson manifest injustice determination. We cannot agree.

¶25 In Greene v. Rothschild, 68 Wash.2d 1, 414 P.2d 1013 (1966), the Supreme Court stated that the plaintiff had not waived the right to seek a correction of an earlier decision, id. at 10, 414 P.2d 1013. This opinion suggests that a party's failure to identify an error in an appellate decision could, under some set of circumstances, constitute a waiver of that claimed error. But we find no Washington authority for the proposition that a party waives the right to claim clear error and manifest injustice under RAP 2.5(c)(2) simply by failing to file a motion for reconsideration. While MDI should have sought reconsideration with this court to correct the error before the mandate issued, we find no basis to conclude its failure to do so was a strategic choice to waive disputed factual issues, particularly when neither party thought the factual dispute was before the court in the initial appeal.

¶26 Every single brief MDI submitted to this court and to the Supreme Court indicated MDI disputed DOR's factual contentions that MDI was in the business of improving real property and that MDI installed the machines at Washington airports. MDI consistently noted it merely conceded these facts on summary judgment for the purpose of obtaining a legal ruling on the meaning of the phrase "of or for the United States" within RCW 82.04.190(6).

¶27 Moreover, we see no corresponding injustice to DOR if we set aside the erroneous portion of our prior decision. See Greene, 68 Wash.2d at 10, 414 P.2d 1013 (reasoning that prior holding should be overruled "if to apply the [law of the case] doctrine would work a manifest injustice to one party, whereas no corresponding injustice would result to the other party if the erroneous decision should be set aside"). DOR recognized, in the initial appeal and before the trial court on remand, that MDI disputed DOR's contention that MDI performed installation work in Washington. In its opening brief to this court, DOR summarized an administrative appeals decision adverse to MDI, and noted:

Most of the [Final Executive Level] Determination is devoted to the issue of whether [MDI] in fact "installed" the systems.
This is likely the primary issue that will be litigated if the case is remanded. Despite contracts, statements of work, invoices, and testimony by [MDI] employees stating that it installed the systems, [MDI] makes the surprising contention that its work was not "installation" and therefore, that it is not a "consumer" under RCW 82.04.190(6). However, for purposes of summary judgment, [MDI] has conceded that it installed the systems and the issue is therefore not presently in dispute.

(citations omitted). DOR was ready to try these factual disputes before and remains in the same legal position today as it was in when the court issued its first decision. Additionally, the State of Washington has retained the benefit of the taxes MDI paid and, thus, has experienced no monetary loss as a result of the delay in correcting the court's error. We conclude not correcting the error in the court's earlier decision, under the unique circumstances of this case, will lead to a manifest injustice.

¶28 For this reason, we affirm that portion of the court's decision that held MDI is not exempt from use tax under RCW 82.04.190(6) merely because the property on which its EDMs were installed is not real property owned by the federal government. We modify the decision to reserve on the ultimate issue of whether MDI is a "consumer" because there remain genuine issues of material fact as to whether MDI is engaged in the business of improving new or existing buildings or structures and whether it installed the EDMs in any new or existing buildings or structures. We reverse the summary judgment of MDI's statutory claims and remand the case for proceedings consistent with this opinion.

¶29 REVERSED.

WE CONCUR:

Chun, J.

Leach, J.

      Under this statutory provision, the State imposes a use tax on "every person in this state ... for the privilege of using within this state as a consumer any ... [a]rticle of tangible personal property acquired by the user in any manner.'' RCW 82.12.020(1)(a).


source: Caselaw Access Project

author: Maxa, C.J.

license: Public Domain

text:
    Diana SHERMAN and Mark Sherman, Respondents, v. PFIZER, INC., Wyeth LLC (formerly known as Wyeth, Inc); Wyeth Holdings Corporation; Wyeth Pharmaceuticals Inc., Schwarz Pharma, Inc.; UCB, Inc; Alaven Pharmaceutical LLC, Qualitest Pharmaceuticals, Inc., Generics Bidco I, LLC, Ranbaxy Pharmaceuticals, Inc.; Gastroenterology Associates, PLLC., Grace Kim, RPh, Roberta Matthews, RPh, Rite Aid Corporation, Defendants,
    Bruce A. Silverman, M.D., Respondent,
    Teva Pharmaceuticals, Inc., PLIVA, Inc., Barr Laboratories, Inc., Appellants.
    No. 50914-8-II
    Court of Appeals of Washington, Division 2.
    Filed April 30, 2019
    Robert William Novasky, Forsberg & Umlauf, P.S., 1102 Broadway Ste. 510, Tacoma, WA, 98402-3534, Jessica B. Jensen, Attorney at Law, Aaron Paul Riensche, Ogden Murphy Wallace PLLC, 901 5th Ave. Ste. 3500, Seattle, WA, 98164-2008, William Jay, Brian Burgess, Goodwin Law Office, 901 New York Ave. Nw, Washington, DC, 20001 for Petitioners.
    Ralph David Pittle, Christopher Kirk Steuart, Medical Legal Consultants of Washington, 5355 204th Pl. Ne, Redmond, WA, 98053-4809, Lisa Taylor, Durham Taylor LLC, 1650 Whippoorwill Road, Watkinsville, GA, 30677, Eric Allen Norman, Jennifer D. Koh, Fain Anderson Vanderhoef Rosendahl O'Hal, 701 5th Ave. Ste. 4750, Seattle, WA, 98104-7089, for Respondents.
    Eric Allen Norman, Jennifer D. Koh, Fain Anderson Vanderhoef Rosendahl O'Hal, 701 5th Ave. Ste. 4750, Seattle, WA, 98104-7089, for Other Parties.
    PUBLISHED OPINION
   Maxa, C.J.

¶1 PLIVA, Inc., Teva Pharmaceuticals USA, Inc., and Barr Laboratories, Inc. (collectively Generic Defendants) appeal the trial court's denial of their summary judgment motion in a products liability lawsuit filed by Diana Sherman.

¶2 The Generic Defendants are manufacturers of metoclopramide, the generic version of the prescription drug Reglan. Sherman developed a movement disorder called tardive dyskinesia after taking metoclopramide for six years as prescribed by Dr. Bruce Silverman. She filed a lawsuit against the Generic Defendants, alleging that they had violated the Washington Product Liability Act (WPLA), chapter 7.72 RCW, by failing to provide adequate warnings about the risk of developing tardive dyskinesia associated with using metoclopramide.

¶3 Sherman's duty to warn claim against the Generic Defendants derives from federally approved changes to the Reglan label, also known as the "package insert," that in 2004 and 2009 strengthened the warnings about using metoclopramide. Sherman claims that the Generic Defendants violated their duty to warn in two ways. First, they failed to update their package inserts for generic metoclopramide to reflect the strengthened warnings on the revised Reglan labels. Second, they failed to communicate the strengthened warnings to Dr. Silverman and the physician community in general in other ways besides in their package inserts.

¶4 We hold that the trial court erred in denying the Generic Defendants' summary judgment motion regarding (1) Sherman's "failure to update" claim because Dr. Silverman's testimony that he did not read any package inserts precluded any genuine issue of fact as to whether the Generic Defendants' failure to update their metoclopramide warnings proximately caused her tardive dyskinesia ; and (2) Sherman's "failure to communicate" claim because, under the facts of this case, the Generic Defendants had no duty under the WPLA to communicate warnings by means other than the package insert.

¶5 Accordingly, we reverse the trial court's order denying the Generic Defendants' summary judgment motion and remand for the trial court to dismiss Sherman's claims against the Generic Defendants.

FACTS

Prescription for Metoclopramide

¶6 Metoclopramide is a prescription medication that is used for the treatment of gastroesophageal reflux. A known risk of using metoclopramide includes the development of tardive dyskinesia, a neurological disorder characterized by abnormal involuntary movements.

¶7 Sherman first saw Dr. Silverman in 2003 for severe digestive issues. After other treatments failed to relieve Sherman's symptoms, Dr. Silverman prescribed metoclopramide. While on metoclopramide, Sherman's digestive symptoms improved significantly. She stayed on metoclopramide from September 2004 to December 2010.

¶8 Dr. Silverman evaluated Sherman regularly while she was on metoclopramide and before 2010 did not see any indication that she was experiencing involuntary movements. However, in June 2010, Sherman began experiencing involuntary movements. In August 2011, she was diagnosed with tardive dyskinesia.

Package Insert Warnings

¶9 Beginning in 1985, the package insert for Reglan contained a warning stating that tardive dyskinesia may develop in patients treated with metoclopramide. The warning stated that the risk of developing the syndrome was "believed to increase with the duration of treatment and the total cumulative dose." Clerk's Papers (CP) at 715. The warning also stated that "[e]xtrapyramidal symptoms, manifested primarily as acute dystonic reactions, occur in approximately 1 in 500 patients" treated with metoclopramide. CP at 715. Under the dosage and administration section, the package insert stated that "[t]herapy longer than 12 weeks has not been evaluated and cannot be recommended." CP at 716.

¶10 In 2004, the brand-name manufacturer revised the Reglan package insert. Both the indications and usage section and the dosage and administration section of the revised package insert contained a statement that therapy with metoclopramide"should not exceed 12 weeks in duration." CP at 766. There was no change to the reference to tardive dyskinesia in the warnings section.

¶11 In 2009, the Food and Drug Administration (FDA) required the brand-name manufacturer to add a "black box warning" to the Reglan package insert. CP at 84. The warning was placed at the top of the package insert and stated:

WARNING
TARDIVE DYSKINESIA
Treatment with metoclopramide can cause tardive dyskinesia, a serious movement disorder that is often irreversible. The risk of developing tardive dyskinesia increases with duration of treatment and total cumulative dose. Metoclopramide therapy should be discontinued in patients who develop signs or symptoms of tardive dyskinesia. There is no known treatment for tardive dyskinesia. In some patients, symptoms may lessen or resolve after metoclopramide treatment is stopped. Treatment with metoclopramide for longer than 12 weeks should be avoided in all but rare cases where therapeutic benefit is thought to outweigh the risk of developing tardive dyskinesia.
See WARNINGS.

CP at 503.

¶12 The warnings section of the revised package insert contained additional information about tardive dyskinesia, including that "one published study reported a TD [tardive dyskinesia ] prevalence of 20% among patients treated for at least 12 weeks." CP at 507. The warning concluded, "Treatment with metoclopramide for longer than 12 weeks should be avoided in all but rare cases where therapeutic benefit is thought to outweigh the risk of developing TD." CP at 507.

Complaint

¶13 In 2013, Sherman filed a complaint against the Generic Defendants and others. In her amended complaint, she asserted a WPLA claim against the Generic Defendants for failing to provide adequate warnings to doctors regarding the use of metoclopramide. Specifically, Sherman alleged that the Generic Defendants had breached their duty to provide adequate warnings by failing (1) to update their package inserts for metoclopramide to match the strengthened warnings added to the Reglan label in 2004 and 2009, and (2) to communicate the new warning information in the revised Reglan labels to doctors through other means.

¶14 In his deposition, Dr. Silverman stated that he was aware when he prescribed metoclopramide for Sherman that one of the potential risks was development of some sort of movement disorder. For any patient on metoclopramide, including Sherman, he would always watch for movement disorders. Dr. Silverman stated that he was not aware of any clinician who had actually observed tardive dyskinesia associated with using metoclopramide, but that at some point "word got around" that tardive dyskinesia was something for which doctors should be looking. CP at 192.

¶15 However, Dr. Silverman testified that he did not read package inserts and did not recall ever reading a package insert. He did not use package inserts to learn about medications. Specifically, Dr. Silverman testified that he had never read a package insert for Reglan or metoclopramide. He also did not recall ever seeing a "Dear Doctor" letter from a drug manufacturer. CP at 178. He said that such letters might have been in a stack of mail he received every day that he never opened. But he generally did not learn new information about medications through the mail.

¶16 Regarding his treatment of Sherman, Dr. Silverman testified that he did not rely on any package insert for Reglan or for generic metoclopramide when deciding whether to initially prescribe metoclopramide and whether to continue prescribing metoclopramide. Similarly, he stated that any changes to the package inserts for metoclopramide did not impact his prescription decision because he did not look at them. Instead, he relied on his clinical training and experience, the experience of his colleagues and associates, and his mentors and people in the academic world who he respected.

¶17 The Generic Defendants filed a motion for summary judgment. In support, they relied on Dr. Silverman's deposition testimony to argue that any failure to warn could not be the proximate cause of Sherman's condition as a matter of law. The trial court denied the summary judgment motion.

¶18 The Generic Defendants filed a motion for discretionary review of the trial court's ruling. A commissioner of this court granted the motion. Ruling Granting Review, Sherman v. PLIVA, Inc ., No. 50914-8-II (Wash. Ct. App. Feb. 28, 2018).

ANALYSIS

A. LEGAL PRINCIPLES

1. Summary Judgment Standard of Review

¶19 We review a trial court's decision on a summary judgment motion de novo. Zonnebloem, LLC v. Blue Bay Holdings, LLC , 200 Wash. App. 178, 182, 401 P.3d 468 (2017). We view all facts and reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Id. 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. Id. A genuine issue of material fact exists if reasonable minds could disagree on the conclusion of a factual issue. Id. at 183, 401 P.3d 468.

¶20 The moving party bears the initial burden of proving that there is no genuine issue of material fact. Id. A defendant can move for summary judgment based on the contention that there is an absence of evidence to support the plaintiff's claim. Id. The burden then shifts to the plaintiff to present specific facts that rebut the defendant's contention and show a genuine issue of material fact. Id. Summary judgment is appropriate if a plaintiff fails to present sufficient evidence on all essential elements of the claim. Clark County Fire Dist. No. 5 v. Bullivant Houser Bailey PC , 180 Wash. App. 689, 699, 324 P.3d 743 (2014).

2. RCW 7.72.030 - Duty to Warn

¶21 Under the WPLA, a product manufacturer can be liable for the failure to provide adequate warnings regarding the product if that product caused harm to the plaintiff. See O'Connell v. MacNeil Wash Sys. Ltd. , 2 Wash. App. 2d 238, 246, 409 P.3d 1107 (2017). RCW 7.72.030(1) states:

A product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of the manufacturer in that the product was ... not reasonably safe because adequate warnings or instructions were not provided.

The WPLA's liability standards are derived from the Restatement (Second) of Torts § 402A (Am. Law Inst. 1965). Taylor v. Intuitive Surgical, Inc. , 187 Wash.2d 743, 754, 389 P.3d 517 (2017).

¶22 Although RCW 7.72.030(1) expresses a negligence liability standard, the strict liability standard established in Restatement § 402A apparently applies to failure to warn claims. Taylor , 187 Wash.2d at 760, 764, 389 P.3d 517. Comment k to § 402A provides an exception to the application of strict liability for "[u]navoidably unsafe products," including prescription drugs. However, a product is "unavoidably unsafe" and the exception applies only when the product is "accompanied by adequate warnings." Taylor , 187 Wash.2d at 764, 389 P.3d 517.

3. Learned Intermediary Doctrine

¶23 In evaluating a prescription drug manufacturer's duty to provide adequate warnings under RCW 7.72.030(1), Washington courts apply the learned intermediary doctrine. Taylor , 187 Wash.2d at 757-58, 389 P.3d 517 ;

Terhune v. A. H. Robins Co. , 90 Wash.2d 9, 13-14, 577 P.2d 975 (1978).

Under the learned intermediary doctrine, manufacturers of medical products can satisfy their duty to warn patients of the risks of their products by providing those warnings to the doctors prescribing the products. The manufacturer's duty to provide warnings to patients transfers to the doctor, who is in a better position to communicate them to the patient.

Taylor , 187 Wash.2d at 757, 389 P.3d 517.

¶24 The Supreme Court in Terhune explained the rationale behind and effect of the learned intermediary doctrine in prescription drug cases:

Where a product is available only on prescription or through the services of a physician, the physician acts as a "learned intermediary" between the manufacturer or seller and the patient. It is his duty to inform himself of the qualities and characteristics of those products which he prescribes for or administers to or uses on his patients, and to exercise an independent judgment, taking into account his knowledge of the patient as well as the product. The patient is expected to and, it can be presumed, does place primary reliance upon that judgment. The physician decides what facts should be told to the patient. Thus, if the product is properly labeled and carries the necessary instructions and warnings to fully apprise the physician of the proper procedures for use and the dangers involved, the manufacturer may reasonably assume that the physician will exercise the informed judgment thereby gained in conjunction with his own independent learning, in the best interest of the patient.

90 Wash.2d at 14, 577 P.2d 975.

¶25 Here, the Generic Defendants had no duty under the learned intermediary doctrine to directly warn patients like Sherman who were prescribed metoclopramide. Their duty was to provide adequate warnings directed to physicians through the package inserts required under federal law. See McKee v. Am. Home Prods. Corp. 113 Wash.2d 701, 718, 782 P.2d 1045 (1989).

B. DUTY TO UPDATE METOCLOPRAMIDE WARNINGS

¶26 Sherman alleges that the Generic Defendants breached their duty to warn by failing to update their package inserts to reflect the strengthened warnings included in the 2004 and 2009 revisions to the Reglan package inserts. The Generic Defendants argue that even if their package inserts were inadequate, the trial court erred in denying their summary judgment motion regarding the failure to update claim based on proximate cause because Dr. Silverman testified that he did not read any package inserts and did not consider package inserts in prescribing metoclopramide for Sherman. We agree with the Generic Defendants.

1. Proximate Cause

¶27 To establish proximate cause based on a manufacturer's failure to warn, the plaintiff must show that the failure to warn was both the cause in fact and the legal cause of the harm. Hiner v. Bridgestone/Firestone, Inc. , 138 Wash.2d 248, 256, 978 P.2d 505 (1999). Cause in fact refers to the actual connection between an act and an injury - whether, but for the act, the injury would not have occurred. See Dunnington v. Virginia Mason Med. Ctr. , 187 Wash.2d 629, 636, 389 P.3d 498 (2017). The Generic Defendants focus on the cause in fact prong.

2. Douglas v. Bussabarger

¶28 The Generic Defendants argue that summary judgment was appropriate regarding proximate cause here under Douglas v. Bussabarger , 73 Wash.2d 476, 438 P.2d 829 (1968). We agree.

¶29 In Douglas , the plaintiff was injured by the spinal block used to anesthetize her during an operation. Id. at 477, 438 P.2d 829. She sued both the doctor who administered the spinal block and the drug company that supplied the anesthetic. Id. The Supreme Court summarily held that any failure to warn by the drug manufacturer could not be the proximate cause of the plaintiff's harm. Id. at 477-78, 438 P.2d 829. The court's entire analysis was as follows:

There is no substantial basis for appeal as to defendant-drug company. ... The only question raised by plaintiff is whether the company should have labeled the drug's container so as to warn of possible dangers of use of the drug. However, even if we assume such labeling should have taken place, defendant-Dr.
Bussabarger testified that he relied on his own knowledge of anesthetics and, in fact, did not read the labeling which was on the container . Thus, if defendant-drug company was negligent in not labeling its container so as to warn of dangers, this negligence was not a proximate cause of plaintiff's disability.

Id. at 478, 438 P.2d 829 (emphasis added).

¶30 The only reported Washington case that has cited Douglas regarding a drug company's duty to warn is Hibbs v. Abbott Laboratories , 62 Wash. App. 451, 814 P.2d 1186 (1991). In Hibbs , the court noted that in Douglas the doctor's testimony that he did not read the drug label allowed the Supreme Court to conclusively determine that the doctor would not have seen any warnings the drug company might have provided. Hibbs , 62 Wash. App. at 456-57, 814 P.2d 1186. However, the court distinguished Douglas because the doctor in Hibbs "never said that he did not or would not have read the labeling. He simply explained that it was his own knowledge of the drug that persuaded him to prescribe it ..., not the drug company's promotional literature." Id. at 457, 814 P.2d 1186.

¶31 Sherman appears to question the holding in Douglas , citing a New Mexico case that distinguished Douglas as not well reasoned. Richards v. Upjohn Co. , 95 N.M. 675, 680, 625 P.2d 1192 (1980). However, in Thom v. Bristol-Myers Squibb Co. , the Tenth Circuit Court of Appeals stated, "The majority of courts that have examined the issue have held that when a physician fails to read or rely on a drug manufacturer's warnings, such failure constitutes the 'intervening, independent and sole proximate cause' of the plaintiff's injuries, even where the drug manufacturer's warnings were inadequate." 353 F.3d 848, 856 (10th Cir. 2003) (quoting Formella v. Ciba-Geigy Corp ., 100 Mich. App. 649, 300 N.W.2d 356, 358-59 (1980) ). The court cited to Douglas , 73 Wash.2d 476, 438 P.2d 829, and other cases for this proposition.

¶32 In any event, Douglas is a Washington Supreme Court case that states a clear holding regarding proximate cause. We are required to follow this binding authority. Sluman v. State , 3 Wash. App. 2d 656, 696, 418 P.3d 125, rev. denied 192 Wash.2d 1005, 430 P.3d 254 (2018). As a result, Douglas provides the controlling law in this case.

3. Analysis

¶33 Here, Dr. Silverman testified unequivocally that (1) he did not read package inserts and did not recall ever reading a package insert, (2) he had never read a package insert for Reglan or metoclopramide, and (3) any changes to the package inserts for metoclopramide did not impact his prescription decision because he did not look at them. Sherman presented no evidence that would create a genuine issue of fact regarding whether Dr. Silverman ever read the package inserts for metoclopramide.

¶34 Based on these undisputed facts, Douglas controls. The Generic Defendants' alleged failure to update the package inserts cannot be the proximate cause of Sherman's condition as a matter of law because even if they had updated the package inserts, Dr. Silverman would not have read them.

¶35 Because Dr. Silverman did not read package inserts, there is no genuine issue of fact regarding whether the Generic Defendants' alleged failure to update the warnings proximately caused her condition. Accordingly, we hold that the trial court erred in denying the Generic Defendants' summary judgment motion regarding Sherman's failure to update claim.

C. DUTY TO COMMUNICATE WARNINGS IN OTHER WAYS

¶36 Sherman alleges that the Generic Defendants breached their duty to warn by failing to communicate the risks of metoclopramide to Dr. Silverman and to the physician community in ways other than in the package insert. The Generic Defendants argue that the trial court erred in denying their summary judgment motion regarding this claim because they had no such "duty to communicate" under the WPLA. We agree with the Generic Defendants.

1. Nature of Sherman's Claim

¶37 The exact nature of Sherman's claimed duty to communicate claim is unclear. Sherman states that "her claims are about Generic Defendants' failures to communicate to [Dr. Silverman], or to anyone in the physician community whose opinion he deems important, the multiple changes that were made to that label which substantially increased the warnings associated with long-term use." Br. of Resp't at 20-21. She further states that "Dr. Silverman's failure to read the package insert is irrelevant to Mrs. Sherman's claim that Generic Defendants failed to communicate the drug's approved warnings in other ways." Br. of Resp't at 22.

¶38 However, she does not specifically identify in her appellate brief the "other" type of communications that she believes the Generic Defendants were required to send. In another context, Sherman discusses Dear Doctor letters. She apparently contends that the Generic Defendants at least were required to send Dear Doctor letters to Dr. Silverman and to other doctors in the physician community.

¶39 In her complaint, Sherman alleged that the Generic Defendants had a duty to (1) communicate to doctors through such means as Dear Doctor letters and advertising in medical periodicals the new warning information in the revised Reglan labels, (2) disseminate information about the risks of metoclopramide throughout the medical community in the form of reprinted publications of peer-reviewed scientific research on metoclopramide use, and (3) sponsor independently produced educational programs for doctors about metoclopramide use. But other than the Dear Doctor letters, Sherman does not mention any of these other means of communication in her brief.

2. Scope of Duty to Warn

¶40 Regardless of the type of other communication that Sherman claims the Generic Defendants were required to make, the Generic Defendants argue that they had no duty under the WPLA to make any communications to doctors regarding warnings other than in the package insert. We agree under the fact of this case.

¶41 As noted above, RCW 7.72.030(1) addresses the liability of a product manufacturer for the failure to provide adequate warnings. That statute states:

A product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of the manufacturer in that the product was ... not reasonably safe because adequate warnings or instructions were not provided.
....
(b) A product is not reasonably safe because adequate warnings or instructions were not provided with the product , if, at the time of manufacture, the likelihood that the product would cause the claimant's harm or similar harms, and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate.

RCW 7.72.030(1) (emphasis added).

¶42 RCW 7.72.030(1)(b) expressly states that adequate warnings must be "provided with the product." The Supreme Court in Taylor also stated that "the WPLA requires that warnings be provided with products ." 187 Wash.2d at 753, 389 P.3d 517 (emphasis added). For prescription drugs, the package inserts are provided with the product. See McKee , 113 Wash.2d at 718, 782 P.2d 1045. Nothing in RCW 7.72.030(1)(b) requires product manufacturers to provide additional warnings beyond those that are provided with the product.

¶43 In addition, comment k to Restatement § 402A states that unavoidably unsafe products must be "accompanied by proper directions and warning." (Emphasis added.) And the court in Terhune - which applied comment k - stated that that a drug manufacturer may rely on the doctor as a learned intermediary if "the product ... carries the necessary instructions and warnings." 90 Wash.2d at 14, 577 P.2d 975 (emphasis added). Restatement § 402A and Terhune predate the adoption of the WPLA. But as the Supreme Court noted in Taylor , the WPLA "closely mirrors" § 402A. 187 Wash.2d at 754, 389 P.3d 517.

¶44 The Generic Defendants also cite to cases from other jurisdictions holding that a drug manufacturer's duty to warn is limited to providing a package insert that accompanies the product. See Guarino v. Wyeth, LLC , 719 F.3d 1245, 1250 (11th Cir. 2013) ; Metz v. Wyeth, LLC , 872 F.Supp.2d 1335, 1344-45 (M.D. Fla. 2012).

¶45 Sherman disagrees with the Generic Defendants' interpretation of RCW 7.72.030(1)(b) and their reliance on Restatement § 402A. But she does not explain why the "provided with the product" language in RCW 7.72.030(1)(b) should be disregarded. And she cites no authority for the proposition that a prescription drug manufacturer has a duty to communicate the risks of the product in any manner other than through package inserts.

¶46 Sherman suggests that the Generic Defendants had a duty to communicate by means other than the package inserts under RCW 7.72.030(1)(c). This subsection states:

A product is not reasonably safe because adequate warnings or instructions were not provided after the product was manufactured where a manufacturer learned or where a reasonably prudent manufacturer should have learned about a danger connected with the product after it was manufactured. In such a case, the manufacturer is under a duty to act with regard to issuing warnings or instructions concerning the danger in the manner that a reasonably prudent manufacturer would act in the same or similar circumstances. This duty is satisfied if the manufacturer exercises reasonable care to inform product users.

RCW 7.72.030(1)(c).

¶47 However, RCW 7.72.030(1)(c) applies when the product manufacturer learns after the product was manufactured (and presumably after adequate warnings were provided with the product) about a danger connected with the product. Here, Sherman does not argue that the Generic Defendants first learned about the need for strengthened warnings for metoclopramide after their generic metoclopramide was manufactured. Sherman claims that the Generic Defendants knew about the risk of tardive dyskinesia associated with long-term use of metoclopramide when the strengthened warnings were approved in 2004 and 2009 and failed to include those warnings with their product or otherwise.

¶48 We conclude that a prescription drug manufacturer's duty under RCW 7.72.030(1)(b) is to provide adequate warnings with the product and that there is no duty under the WPLA to communicate such warnings to doctors in ways other than through package inserts. Further, under the facts of this case, the duty to warn under RCW 7.72.030(1)(c) is inapplicable. Accordingly, we hold that the trial court erred in denying the Generic Defendants' summary judgment motion regarding Sherman's duty to communicate claim.

CONCLUSION

¶49 We reverse the trial court's ruling denying the Generic Defendants' summary judgment motion, and we remand for the trial court to dismiss Sherman's claims against the Generic Defendants.

We concur:

WORSWICK, J.

LEE, J.

      The Generic Defendants also argue that federal law preempts any state law claims for failing to provide the strengthened warnings. Because we reverse on other grounds, we do not address this argument.

      Sherman also named as defendants Dr. Silverman and his medical group, the brand-name manufacturers of Reglan, and the pharmacy and pharmacist who filled the prescription. Sherman apparently settled her claims with the brand-name manufacturers, and the trial court dismissed her claims against the pharmacy and pharmacist. The claims against Dr. Silverman and his medical group apparently are pending.

      A "Dear Doctor" letter is a communication drug manufacturers send to doctors providing additional information regarding medications they produce. See PLIVA, Inc. v. Mensing , 564 U.S. 604, 615, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011) ; 21 C.F.R. 200.5.

      Sherman initially argues that we should hold that the commissioner erred in granting discretionary review under RAP 2.3(b)(1) because the trial court did not commit obvious error. However, to challenge the commissioner's ruling, Sherman was required to file a motion to modify that ruling under RAP 17.7(a). She failed to file a motion to modify. Therefore, we decline to consider this argument.

      The Generic Defendants also argue that Sherman cannot show there is a genuine issue of fact as to whether the failure to communicate was a proximate cause of her condition. Because we hold that the Generic Defendants had no duty to communicate under the WPLA, we do not address proximate cause.

      Sherman primarily argues, correctly, that RCW 7.72.030(1)(b) supports her claim that the Generic Defendants had a duty to update their package inserts because that claim involves warnings "provided with the product." But that argument is immaterial to her "duty to communicate" claim. And as discussed above, Sherman's duty to update claim fails on proximate cause grounds.


author: Smith, J.

text:
    In the MATTER OF the ESTATE OF: Michael A. PETELLE, Deceased.
    Gloria Petelle, Appellant, v. Michelle Ersfeld Petelle, Respondent.
    No. 77556-1-I
    Court of Appeals of Washington, Division 1.
    FILED: May 6, 2019
    Jason W. Burnett, Attorney at Law, 801 2nd Ave. Ste. 1415, Seattle, WA, 98104-1517, for Appellant.
    Ann Terese Wilson, Law Offices of Ann T. Wilson, 1420 5th Ave. Ste. 3000, Seattle, WA, 98101-2393, Catherine Wright Smith, Valerie A. Villacin, Smith Goodfriend PS, 1619 8th Ave. N, Seattle, WA, 98109-3007, Michael L. Olver, Helsell Fetterman LLP, 1001 4th Ave. Ste. 4200, Seattle, WA, 98154-1154, for Respondent.
    PUBLISHED OPINION
   Smith, J.

¶1 After a six-year marriage, Michael Petelle filed a petition to dissolve his marriage to Michelle Ersfeld Petelle. The parties executed a Separation Contract and CR2A Agreement (Separation Contract) that divided their assets into separate property and was a "final settlement of all their marital and property rights and obligations." Michael died intestate with no children before a dissolution decree was entered. Gloria Petelle, Michael's mother and heir, appeals the trial court's denial of her motion to terminate Michelle's right to intestate succession. We hold that the right to intestate succession is a marital right that, although derived from statute, arises because of a person's marital status. By agreeing to a final settlement of all marital rights, Michelle waived that right by signing the Separation Contract. Therefore, we reverse and remand with instructions for the trial court to grant Gloria's motion to terminate Michelle's right to intestate succession. We also deny Michelle's request for attorney fees on appeal and at the trial court.

FACTS

¶2 Michael and Michelle married on May 20, 2011. On January 27, 2017, Michael filed a petition for dissolution of their marriage. On February 14, 2017, Michael and Michelle executed the Separation Contract that divided their property and debts. Michael died on May 1, 2017, before a final decree of dissolution was entered. He did not have a will, and he had no children.

¶3 Michelle submitted a petition for letters of administration, appointment of an administrator, an order of solvency, and nonintervention powers on May 10, 2017. Her petition did not disclose the existence of the dissolution action or the Separation Contract. Furthermore, she did not give notice to any of Michael's heirs of her intent to petition for nonintervention powers, as required by RCW 11.68.041. Gloria contested Michelle's nonintervention powers. The trial court revoked Michelle's nonintervention powers and required her to post a $ 100,000 bond but allowed Michelle to continue as Michael's personal representative. It also awarded attorney fees to Gloria.

¶4 Gloria then petitioned the court on September 27, 2017, for an order terminating Michelle's right to intestate succession. The trial court denied Gloria's motion but reserved ruling on Michelle's motion for attorney fees. Gloria appeals.

RIGHT TO INHERIT AS A "SURVIVING SPOUSE"

¶5 Gloria argues that Michelle and Michael's marriage was defunct and, therefore, Michelle is not entitled to inherit as a "surviving spouse" because her marriage to Michael was "terminated" under RCW 11.02.005(17). We disagree.

¶6 The meaning of a statute is a question of law that we review de novo. Durant v. State Farm Mut. Auto. Ins. Co., 191 Wash.2d 1, 8, 419 P.3d 400 (2018). Our fundamental objective in determining what a statute means is to ascertain and carry out the legislature's intent. Durant, 191 Wash.2d at 8, 419 P.3d 400. "If the statute's meaning is plain on its face, then courts must give effect to its plain meaning as an expression of what the legislature intended." Durant, 191 Wash.2d at 8, 419 P.3d 400. The court may use a dictionary to discern the plain meaning of an undefined statutory term. Nissen v. Pierce County, 183 Wash.2d 863, 881, 357 P.3d 45 (2015). If, after consulting a dictionary, the statute is susceptible to more than one reasonable meaning, the statute is ambiguous and it is appropriate to use other statutory construction aids and examine the legislative history. Wrigley v. State, 5 Wash. App. 2d 909, 924-25, 428 P.3d 1279 (2018). "The court has frequently looked to final bill reports as part of an inquiry into legislative history." State v. Bash, 130 Wash.2d 594, 601, 925 P.2d 978 (1996).

¶7 RCW 11.04.015(1)(c) states that a "surviving spouse" shall receive "[t]here-quarters of the net separate estate if there is no surviving issue, but the intestate is survived by one or more of his or her parents." RCW 11.02.005(17) describes when an individual does not qualify as a "surviving spouse":

"Surviving spouse" or "surviving domestic partner" does not include an individual whose marriage to or state registered domestic partnership with the decedent has been terminated, dissolved, or invalidated .... A decree of separation that does not terminate the status of spouses or domestic partners is not a dissolution or invalidation for purposes of this subsection.

(Emphasis added.) "Terminated" is not defined in the statute, but the dictionary defines "terminate" as "to bring to an ending or cessation in time, sequence, or continuity : CLOSE ... to form the ending or conclusion of ... to end formally and definitely (as a pact, agreement, contract)."

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2359 (2002). Using this definition of "terminated," the term is susceptible to two or more meanings because it is not clear what action is required to "terminate" a marriage or domestic partnership. Therefore, it is necessary to consult the legislative history of the statute to ascertain the legislature's intent.

¶8 RCW 11.02.005(17) was revised in 2008 as part of a broader bill expanding domestic rights and responsibilities of all couples recognized as domestic partners under Washington's State Registered Domestic Partnerships Act, chapter 26.60 RCW. H.B. 3104, 60th Leg., Reg. Sess. (Wash. 2008). The statute's references to domestic partners and domestic partnerships and the word "terminated" were added as part of this revision. Based on the final bill report, "terminated"

refers to a process for ending a domestic partnership with the Secretary of State. See FINAL B. REP. ON SECOND SUBSTITUTE H.B. 3104, 60th Leg., Reg. Sess. (Wash. 2008). Contrary to Gloria's contention, the legislature did not add "terminated" to describe a marriage that is defunct. Because Michelle was not in a domestic partnership with Michael that was terminated by the Secretary of State, she is a surviving spouse under the statute and is entitled to inherit 75 percent of his separate property, absent a waiver of that right.

WAIVER OF MARITAL RIGHT TO INTESTATE SUCCESSION

¶9 Gloria next argues that Michelle waived her right to inherit Michael's property as a "surviving spouse" by entering into the Separation Contract. We agree.

¶10 "When the parties to a separation agreement dispute its meaning, the court must ascertain and effectuate their intent at the time they formed the agreement." Boisen v. Burgess, 87 Wash. App. 912, 920, 943 P.2d 682 (1997). "The intent of the parties is determined by examining their objective manifestations, including both the written agreement and the context within which it was executed." Boisen, 87 Wash. App. at 920, 943 P.2d 682. "If the agreement has only one reasonable meaning when viewed in context, that meaning necessarily reflects the parties' intent." Boisen, 87 Wash. App. at 920, 943 P.2d 682. If the agreement has more than one reasonable meaning, a question of fact is presented and this court reviews the trial court's determination for substantial evidence. Boisen, 87 Wash. App. at 920-21, 943 P.2d 682. But where there is no reliance on extrinsic evidence, interpretation of a contract is a question of law we review de novo. State v. R.J. Reynolds Tobacco Co., 151 Wash. App. 775, 783, 211 P.3d 448 (2009). "[W]e attempt to determine the parties' intent by focusing on the objective manifestations of the agreement, rather than on the unexpressed subjective intent of the parties." Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wash.2d 493, 503, 115 P.3d 262 (2005).

¶11 " '[W]aiver is the intentional and voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right.' " In re Estate of Lindsay, 91 Wash. App. 944, 950, 957 P.2d 818 (1998) (alteration in original) (quoting Peste v. Peste, 1 Wash. App. 19, 24, 459 P.2d 70 (1969) ). It can be an express agreement or be inferred from the circumstances. Lindsay, 91 Wash. App. at 950-51, 957 P.2d 818. Waiver is " 'a voluntary act which implies a choice, by the party, to dispense with something of value or to forego [sic] some advantage.' " Lindsay, 91 Wash. App. at 951, 957 P.2d 818 (quoting Peste, 1 Wash. App. at 24, 459 P.2d 70 ).

¶12 Under Washington law, a surviving spouse has a right to inherit from his or her deceased spouse's estate. RCW 11.04.015(1). This statutory right to intestate succession turns on a person's marital status and is therefore a marital right. See 19 SCOTT J. HORENSTEIN, WASHINGTON PRACTICE: FAMILY & COMMUNITY PROPERTY LAW § 5:3, at 125 (2d ed. 2015) ("Marital rights ... include ... inheritance rights.").

¶13 Here, the Separation Contract states that "the parties hereby stipulate and agree to make a complete and final settlement of all their marital and property rights and obligations on the following terms and conditions." (Emphasis added.) This language is, arguably, sufficient to constitute waiver of all marital and property rights flowing from the marital relationship, including the right to intestate succession.

¶14 While Michelle concedes that a party can waive his or her right to intestate succession, she argues that such a waiver did not occur here. She contends that in order to constitute a waiver of her right to intestate succession, the Separation Contract must clearly state that she waived that specific right and that a general waiver of all marital rights is insufficient. Even assuming her argument has merit, we hold that additional language in the Separation Contract supports a holding that Michelle impliedly waived her right to intestate succession.

¶15 Washington courts have determined that a spouse's right to a homestead, another marital inheritance right, can be impliedly waived in a settlement agreement of marital and property rights in two previous cases: In re Estate of Brown, 28 Wash.2d 436, 439, 183 P.2d 768 (1947), and Lindsay. Following the analysis in both of these cases, Michelle impliedly waived her right to intestate succession by entering into the Separation Contract.

¶16 In Brown, the Supreme Court considered whether Florence Turner was entitled to an award of property in lieu of homestead from Louis Brown's estate. At the time of Brown's death, the parties were separated, their divorce was pending, and Brown had executed a new will that omitted Turner. Brown, 28 Wash.2d at 437, 439, 183 P.2d 768. The parties also entered into a settlement agreement that stated:

"(4). In the event of the granting of a divorce in the above entitled action, this property settlement shall be a full and complete settlement of all of the property rights of the parties hereto, and the property received by the first party hereunder shall thereupon become and/or remain in his separate property, free and clear of all claims whatsoever on the part of the second party, and the property received by the party of the second part shall thereupon become her separate property, free and clear of any claims whatsoever on the part of the first party. It is hereby agreed by the parties hereto that this property settlement shall be final and conclusive between the parties hereto, regardless of whether or not either party hereto may die before the Interlocutory Decree of Divorce shall become final. ...
"....
"This agreement shall be binding on each of the parties hereto, their heirs and assigns forever."

Brown, 28 Wash.2d at 438, 183 P.2d 768 (emphasis added). The Supreme Court held that Turner waived all rights to a homestead by signing the agreement. Brown, 28 Wash.2d at 440, 183 P.2d 768. It determined that if the parties intended the settlement agreement to be effective even if one of them died, "then the property secured by each became and remained separate property, free and clear of all claims-including right of homestead-on the part of the other party." Brown, 28 Wash.2d at 440, 183 P.2d 768 (emphasis added). Considering the language of the agreement and the circumstances surrounding its execution, the court held that it was "clear" that Turner and Brown contemplated the possibility of death and "meant to waive any rights which might accrue upon death, one of which rights would be the homestead right." Brown, 28 Wash.2d at 440, 183 P.2d 768 (emphasis added). This was clear because the language of the agreement indicates that "the property settlement shall be final and conclusive between the parties, regardless of whether either party died prior to the time the interlocutory decree of divorce became final." Brown, 28 Wash.2d at 440, 183 P.2d 768. That, combined with the release of claims on the other's separate property, and the recitation that the agreement was binding on the parties, heirs, and assigns, clearly evidenced "that the division of the property should stand and that each should dispose of that separate property as if either were unmarried." Brown, 28 Wash.2d at 440, 183 P.2d 768.

¶17 Here, similar to the agreement in Brown, the Separation Contract also states that it is "a complete and final settlement of all [of Michelle and Michael's] marital and property rights and obligations." Furthermore, it is effective even upon the death of either party. Therefore, as in Brown, the Separation Contract evidences Michael and Michelle's intent that "the property secured by each became and remained separate property, free and clear of all claims ... on the part of the other party," including any right to intestate succession. Brown, 28 Wash.2d at 440, 183 P.2d 768 (emphasis added).

¶18 More recently, in Lindsay, Division III of this court also concluded that a separation agreement constituted an implied waiver of a spouse's right to a homestead. In that case, Murray and Cathy Lindsay signed a separation agreement dividing their real and personal property on October 1, 1991, after an almost eight-year marriage. Lindsay, 91 Wash. App. at 947, 957 P.2d 818. Murray then executed a new will leaving nothing to Cathy.

Lindsay, 91 Wash. App. at 947, 957 P.2d 818. He died unexpectedly three years later, and Cathy petitioned the court for an award in lieu of homestead. Lindsay, 91 Wash. App. at 947, 957 P.2d 818.

¶19 The Court of Appeals held that the intent of the separation agreement was undisputed. Lindsay, 91 Wash. App. at 951, 957 P.2d 818. The agreement stated that " 'neither has a claim or interest in anything acquired after the date of October 1, 1991 or anytime in the future,' " and it required that if the parties later reconciled, any changes to the agreement had to be in a writing and signed by both parties. Lindsay, 91 Wash. App. at 951, 957 P.2d 818. The court held that as of October 1, 1991, Cathy and Murray were legally separated and their property divided, effective immediately. Lindsay, 91 Wash. App. at 951, 957 P.2d 818. It explained that "[t]he agreement clearly reflects an intent to give up those rights which would normally follow legal spouses" and "showed an intent to prevent, waive, and abandon what a surviving spouse could normally take."

Lindsay, 91 Wash. App. at 951-52, 957 P.2d 818. Under the agreement, Cathy "effectively renounced the marriage and waived the statutory homestead allowance." Lindsay, 91 Wash. App. at 952, 957 P.2d 818.

¶20 The court rejected Cathy's argument that because the separation agreement did not specifically mention the homestead right, she was entitled to a homestead allowance. Lindsay, 91 Wash. App. at 951, 957 P.2d 818. It held that the homestead right could be waived by implication and the real question was whether the parties' actions evidenced a decision to renounce the community with no intention of resuming the marital relationship. Lindsay, 91 Wash. App. at 951, 957 P.2d 818. Because the separation agreement divided all property and waived all claims to the others' property and was never rescinded, revoked, or altered, that test was met. Lindsay, 91 Wash. App. at 952, 957 P.2d 818.

¶21 The same analysis applies in this case. Michael and Michelle's Separation Contract states that "[a]ll property which shall hereafter come to either party shall be his or her separate property and neither party shall hereafter have any claim thereto." This is similar to the separation agreement in Lindsay, which the court held "showed an intent to prevent, waive, and abandon what a surviving spouse could normally take." Lindsay, 91 Wash. App. at 952, 957 P.2d 818. As such, Michelle waived her marital right to intestate succession by entering into the Separation Contract.

¶22 Michelle argues that Brown and Lindsay are distinguishable because those cases dealt with the homestead right applicable to disinherited spouses, not the right to intestate succession. Although it is true that Brown and Lindsay do not address the rights of a surviving spouse to intestate succession, the analysis is still instructive. Both cases analyzed whether a separation contract that is a final settlement of a married couple's property and rights, effective even upon death, evidences an intent to waive the statutory marital rights of a surviving spouse. Michelle's right to intestate succession, like the homestead right, is a statutory marital right due to a surviving spouse. For that reason, Brown and Lindsay are persuasive.

¶23 Michelle also argues that the parties' subsequent actions in Brown and Lindsay were vital to the courts' conclusions that the disinherited spouse intended to waive the homestead right. Specifically, she highlights the fact that the spouses in those cases revoked their previous wills that named one another as beneficiaries and executed new wills that did not provide for any inheritance. By contrast, Michelle argues that after she and Michael signed the Separation Contract, they did not take any actions, such as executing a new will, that showed an intent to waive the right to intestate succession. But, the courts in Brown and Lindsay did not rely on the parties' subsequent actions. In each of those cases, the court reached its conclusion based on that the language of the separation agreements alone. Brown, 28 Wash.2d at 440, 183 P.2d 768 ("This conclusion [that the parties intended to waive the homestead right] is inescapable under the language that the agreement was to be binding on each of the parties, their heirs and assigns forever."); Lindsay, 91 Wash. App. at 951, 957 P.2d 818 ("The agreement clearly reflects an intent to give up those rights which would normally follow legal spouses.") (emphasis added). The parties' subsequent actions, while further supporting their intent to waive their homestead rights, were not relied on to find waiver. Furthermore, in both Brown and Lindsay, a new will was necessary because the settlement agreement did not automatically disinherit the estranged spouses from one another's existing wills and the parties had to update their wills to reflect that intent. Here, Michael did not have a will and there is no evidence in the record that Michelle had one either, so there was nothing that needed modification. For these reasons, Michelle's attempt to distinguish Brown and Lindsay is not persuasive.

¶24 Finally, Michelle argues that even if she waived her right to intestate succession, remand is necessary to determine whether or not she and Michael intended to reconcile. She cites evidence in the record that Michael contacted his attorney on April 2, 2017, to ask that the dissolution be delayed, a no-contact order be removed, and a house in Leavenworth no longer be included in the Separation Contract. But even if this were evidence that Michael and Michelle intended to reconcile, it does not change the result. The Separation Contract states that it may be "terminated and modified only by a written document so reflecting, signed by both parties." (Emphasis added.) Michael's email to his attorney was not a modification or termination that was signed by both parties. Furthermore, any extrinsic evidence of Michael's intent to reconcile with Michelle after the execution of the Separation Contract is not needed where the intent of the parties at the time of execution is clear, as is the case here. Berg v. Hudesman, 115 Wash.2d 657, 667, 801 P.2d 222 (1990) ("[E]xtrinsic evidence is admissible as to the entire circumstances under which the contract was made, as an aid in ascertaining the parties' intent."). For these reasons, we decline Michelle's request to remand for further fact-finding.

ATTORNEY FEES

¶25 Michelle asks this court to award her attorney fees and costs on appeal and for the proceedings at the trial court under RCW 11.96A.150(1) and RAP 18.1(a). We deny her request.

¶26 Attorney fees may be awarded only when authorized by a contract, a statute, or a recognized ground of equity. Labriola v. Pollard Grp., Inc., 152 Wash.2d 828, 839, 100 P.3d 791 (2004). RCW 11.96A.150(1) allows a court to award costs and reasonable attorney fees to any party in trust and estate disputes. It states, "[i]n exercising its discretion under this section, the court may consider any and all factors that it deems to be relevant and appropriate, which factors may but need not include whether the litigation benefits the estate or trust involved." RCW 11.96A.150(1).

¶27 Here, Michelle requested attorney fees in the trial court, but the trial court reserved its decision on fees.

Because Michelle is not the prevailing party on the issue of waiver and her litigation of that issue does not benefit the estate, we decline to award her fees at trial or on appeal.

¶28 We reverse and remand to the trial court to grant Gloria's motion terminating Michelle's marital right to intestate succession.

WE CONCUR:

Leach, J.

Schindler, J.

      Because all the parties have the same last name, we refer to each person by his or her first name.