JEFFREY K. MARKOFF and ALICIA MARKOFF, individually and as a married couple; EDWARD C. NEWELL and TROY-LYNN NEWELL, individually and as a married couple; CHARLES MEYER and JULIE MEYER, individually and as a married couple; JOEY P. HAUGEN and MYUNG K. HAUGEN, individually and as a married couple; NATHAN A. BUCK, individually; MICHAEL S. CAMLIN and CANDACE M. CAMLIN, individually and as a married couple; RICHARD MARTELL-SCOTT, individually; and STEVE ROBERTS, individually, Appellants,
PUGET SOUND ENERGY, INC., a Washington corporation; PILCHUCK CONTRACTORS, INC., a Washington corporation; and MICHELS CORPORATION, a Wisconsin corporation, Respondents.
firefighters responded to a report of a natural gas leak. Gas
from a pipeline ignited, causing an explosion and injuring
the firefighters. The firefighters sued Puget Sound Energy
Inc. (PSE) and its contractors, alleging, among their causes
of action, that negligence or recklessness in the
decommissioning of the leaking pipeline was a cause of the
explosion. The trial court granted PSE's motion to
dismiss on the basis that the professional rescuer doctrine
barred all of the firefighters' claims. We affirm.
March 9, 2016, the Seattle Fire Department received a 911
telephone call reporting a natural gas leak on the 8400 block
of Greenwood Avenue North in Seattle. Nine firefighters
arrived on the scene at 1:09 a.m. and notified PSE of the
leak at 1:11 a.m. PSE did not take action to shut off the
natural gas pipeline that was the source of the leak until
much later. After notifying PSE of the leak's existence,
the firefighters inspected a narrow passageway between 8411
and 8415 Greenwood Avenue North and determined that the gas
was escaping from a threaded coupling along a steel service
line attached to the building at the 8411 address. The
firefighters were unaware that gas had also escaped into and
underneath this building. As the firefighters continued
investigating, an unknown source ignited the gas at 1:43
a.m., causing an explosion that leveled both buildings and
injured the firefighters.
subsequent investigation by the Washington Utilities and
Transportation Commission (WUTC) culminated in a report
detailing the explosion's causes. WUTC found that the gas
leak and subsequent explosion would not have occurred but for
an improper decommissioning of the gas service line in 2004.
This work had been performed by an independent contractor,
Pilchuck Contractors Inc. Pilchuck had recorded the line as
being cut and capped despite failing to actually cut and cap
the line. However, WUTC also determined that the immediate
cause of the leak was external damage to the threaded
coupling, likely the result of individuals storing personal
property in (and using the narrow space) between the two
buildings. WUTC's subsequent administrative proceeding
against PSE concluded in a settlement pursuant to which PSE
was to pay a $2.75 million fine, with the contingency that
$1.25 million of the fine would be suspended if PSE completed
inspection and remediation of its deactivated gas lines.
There was no appeal from this final agency determination, and
WUTC is not a party to this case.
long after, on May 12, 2017, Jeffrey Markoff, one of the
injured firefighters, along with his wife Alicia, sued PSE,
Pilchuck Contractors, and Michels Corporation, Pilchuck's
parent company. The complaint alleged strict liability under
the public utility statute; common law negligence,
willfulness, and strict liability; outrage; infliction of
emotional distress; loss of consortium; punitive damages; and
a right to injunctive relief. Subsequently, Markoff amended his
complaint to add other injured firefighters as plaintiffs and
to advocate for a change in the existing law governing
liability to professional rescuers.
moved to dismiss the firefighters' first amended
complaint, arguing that the negligence and intentional tort
claims were barred by the professional rescuer doctrine, that
the injunctive relief claim was both subject to the primary
jurisdiction of the WUTC's administrative proceeding and
was also moot due to PSE's settlement with the WUTC, and
that there was no independent cause of action to assert under
the pertinent section of the public utility statute. The
trial court dismissed all of the firefighters' common
law, statutory, and strict liability claims with prejudice,
but reserved ruling on the injunctive relief claim to allow
for further briefing.
the professional rescuer doctrine was appropriate, the trial
court reasoned, because the firefighters had been called to
the scene to address a gas leak, and a well-known and
foreseeable danger of gas leaks is that the gas may ignite
and explode. The court also accepted PSE's reasoning that
the pertinent section of the public utility statute, RCW
80.04.440, did not create an independent cause of action or
revive causes of action otherwise barred by an affirmative
defense such as the professional rescuer doctrine. The trial
court pointed to the state's workers' compensation
fund as an existing system of accounting for the risk of
injury assumed by professional rescuers.
PSE submitted the requested supplemental briefing in support
of its motion to dismiss the firefighters' injunctive
relief claim. The firefighters, however, did not submit
supplemental briefing on the issue and instead moved to
voluntarily dismiss the injunctive relief claim without
prejudice. The firefighters' motion for voluntary
dismissal was premised on their perception that the trial
court had not, in fact, held a hearing on the injunctive
relief issue or otherwise exercised its discretion to address
it. The trial court disagreed, explaining,
I think it's worth noting that in my opinion I have
exercised discretion on the issue that is noted for a hearing
today in front of me with regard to the injunctive relief.
I heard that first hearing. I read all the briefing, and then
I exercised discretion to have another hearing to delay, to
say I need to do more research, I need the parties to educate
me more through their briefing. .. .
And I needed that in order to go forward. And I didn't
have to. That's the definition of discretion.
I could have said I will decide it. I will let you know in
two weeks. I'm going to do the research. That's my
I could have said we'll decide it in 90 days, but I want
more briefing. That's what I did.
I could have also just decided it right then that day in
September, but I didn't. I exercised that discretion.
That hearing [on PSE's Motion to Dismiss] had started. In
my view, there's no question about that. There's
always shades of gray. It's nice to think of things in
black and white, but the reality is between when the first
brief is filed and when the final decision is entered,
there's a lot of shades of gray [on] when a [CR] 41
[motion] can or cannot be filed.
In my view, this case crosses that line because we had a
hearing, there was briefing on it, and I was cued up to make
a decision, and I did make a decision, and I did exercise
discretion, and that was to make the decision at a later date
after more briefing and more education for the Court.
The trial court also gave an alternative ground for ruling in
favor of PSE:
I am going to grant Puget Sound the defense's motion on
the merits based on the lack of response and the fact,
frankly, that I am convinced that their position is correct
in light of all of the facts and law that have been presented
to me over the course of two substantive hearings.
the trial court dismissed the firefighters' claim for
injunctive relief with prejudice. The firefighters appeal
from the orders of dismissal, averring that the professional
rescuer doctrine should not bar their common law and
statutory tort claims and that dismissal ...