and Clarice Kirkendoll hired loggers to harvest their trees.
But Pepper Kirkendoll misrepresented the boundaries of his
and Clarice's land, and the loggers harvested trees
belonging to the neighbors, Jerry Porter and Karen Zimmer.
Porter and Zimmer sued the Kirkendolls and the loggers. The
loggers settled with Porter and Zimmer and assigned to them
their indemnity and contribution claims against the
Kirkendolls as part of that settlement. The remaining parties
then filed separate motions for summary judgment. The trial
court dismissed the case, ruling that the settlement released
the Kirkendolls from liability and that Porter and Zimmer had
no valid contribution or indemnity claims.
Court of Appeals reversed, making a series of holdings. It
held that the settlement did not release the Kirkendolls from
potential liability for their own tort of directing the
timber trespass. It held that Porter and Zimmer could proceed
with their assigned indemnity claims, but not with their
assigned contribution claims. And it held that Porter and
Zimmer are precluded from recovering under the waste statute
because relief is available under the timber trespass
affirm the appellate court's holdings that the settlement
did not release the Kirkendolls from liability and that
Porter and Zimmer are precluded from recovering under the
waste statute. But we reverse the appellate court's
holding on the indemnity and contribution claims.
and Procedural Background
Eugene Kirkendoll and Clarice Kirkendoll own a parcel of
timberland for the sole purpose of harvesting timber.
Clerk's Papers (CP) at 289. The couple's land abuts
the western edge of a 60-foot-wide easement, and that
easement is located on land owned by Jerry Porter and Karen
Zimmer. CP at 54, 289-91, 313. Within the easement runs a
private access road known as Madison Drive. CP at 289-90.
Given the location of Madison Drive within the easement, a
strip of land to the west of the access road but to the east
of the Kirkendolls' land belongs to Porter and Zimmer;
the Kirkendolls do not own all the land west of Madison
Drive. CP at 49, 51-52.
when Pepper Kirkendoll hired G & J Logging Inc. to
harvest timber, CP at 141, he represented that he and Clarice
owned all the land west of Madison Drive, CP at 45, 53. G
& J Logging hired Boone's Mechanical Cutting Inc. to
help with the job, CP at 94, 140, and the two companies
harvested 51 Douglas firs located on Porter and Zimmer's
land. CP at 5, 9, 140, 314.
and Zimmer sued the Kirkendolls, G & J Logging,
Boone's Mechanical Cutting for waste under RCW 4.24.630 and
for timber trespass under RCW 64.12.030. CP at 1-3.
Specifically, Porter and Zimmer alleged that the
"Defendants intentionally, recklessly or negligently
trespassed upon Plaintiffs' real property . . . and cut
trees" and then "yarded, processed, and loaded the
felled trees and removed them from the lot." CP at 2.
The G & J defendants cross claimed against the
Kirkendolls, arguing that G & J was "without any
active fault" and seeking either contribution or
indemnity. CP at 11-13. The Boone defendants cross claimed
against the Kirkendolls and the G & J defendants, seeking
"equitable or implied in fact indemnity." CP at
and Zimmer settled with the G & J and Boone defendants
for $125, 000. CP at 164, 225. As part of the settlement, the G
& J and Boone defendants assigned to Porter and Zimmer
their contribution and indemnity cross claims against the
and Zimmer then moved for partial summary judgment on three
issues. CP at 27-33. First, Porter and Zimmer argued that the
Kirkendolls were required to indemnify the G & J and
Boone defendants as a matter of law. CP at 30. Second, Porter
and Zimmer argued that the case should proceed to trial under
the waste statute rather than under the timber trespass
statute. CP at 30-32. Third, Porter and Zimmer argued that
the Kirkendolls were liable for treble damages as a matter of
law. CP at 32-33. Porter and Zimmer claimed that "[o]nly
the amount of damages remain[ed] for trial." CP at 27.
Kirkendolls opposed Porter and Zimmer's motion and filed
their own motion for summary judgment. CP at 72-88. In their
motion, the Kirkendolls argued that the G & J and Boone
defendants had no contribution or indemnity claims to assign
because they failed to follow the settlement procedures
outlined in the tort reform act,  which they believed covered
the torts at issue here, and which requires a reasonableness
hearing before settlement in some situations. CP at 81-85.
The Kirkendolls also argued that the settlement released them
from liability under principles of vicarious liability. CP at
the Kirkendolls' position "in total, " the
trial court granted their motion for summary judgment and
dismissed the case. Verbatim Report of Proceedings (VRP)
(Dec. 2, 2016) at 38-40; see also CP at 233-36. The
trial court did not decide whether the G & J and Boone
defendants would have had valid contribution or indemnity
claims if they had followed what the trial court perceived as
the correct settlement procedures.
and Zimmer appealed. CP at 276. The Court of Appeals affirmed
in part and reversed in part. Porter v. Kirkendoll,
5 Wn.App. 2d 686, 690, 421 P.3d 1036 (2018). That court held
that the settlement did not release the Kirkendolls from
liability under principles of vicarious liability.
Id. at 699-700. It also held that the tort reform
act does not apply to timber trespass because it is an
intentional tort, id. at 698 (citing Birchler v.
Castello Land Co., 133 Wn.2d 106, 115, 942 P.2d 968
(1997)), and therefore Porter and Zimmer could proceed with
their assigned indemnity claims, id. at 700-01, but
not with their assigned contribution claims, id. at
703-04. Finally, the court held that Porter and Zimmer were
precluded from recovering under the waste statute because
relief is available under the timber trespass statute.
Id. at 702-03. The court remanded the case to the
trial court for further proceedings on Porter and
Zimmer's timber trespass and indemnity claims.
Id. at 706-07.
Kirkendolls petitioned this court for review, renewing their
argument that the settlement agreement released them from
liability under principles of vicarious liability. They also
argued that they are not liable for indemnity as a matter of
law. In their answer, Porter and Zimmer sought review of a
third issue: whether the timber trespass statute precludes
them from recovering under the waste statute. We granted
review of both the petition and the cross petition without
limiting the issues. Porter v. Kirkendoll, 192 Wn.2d
review summary judgment rulings de novo. Pendergrast v.
Matichuk, 186 Wn.2d 556, 563-64, 379 P.3d 96 (2016)
(citing Becerra Becerra v. Expert Janitorial, LLC,
181 Wn.2d 186, 194, 332 P.3d 415 (2014)). We also review the
meaning of a statute de novo. Dep't of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4
(2002). When reviewing summary judgment rulings, we
"consider 'facts and reasonable inferences from the
facts ... in the light most favorable to the nonmoving
party.'" Harper v. Dep't of Corr., 192
Wn.2d 328, 340, 429 P.3d 1071 (2018) (alteration in original)
(quoting Hertog v. City of Seattle, 138 Wn.2d 265,
275, 979 P.2d 400 (1999)). We will affirm a "grant [of]
summary judgment when 'there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law.'" Id. (quoting
Hertog, 138 Wn.2d at 275).
settlement did not release the Kirkendolls from liability
Kirkendolls argue that this is a case of vicarious liability,
with Pepper Kirkendoll acting as principal and the loggers
acting as his agents. Pepper E. Kirkendoll's Mot. for
Discr. Review (Pet. for Review) at 5-8. The Kirkendolls claim
that by settling with the loggers (allegedly Pepper's
agents), Porter and Zimmer released the Kirkendolls from
liability. Id. at 8-11. The trial court agreed with
this argument and granted the Kirkendolls' motion for
summary judgment. VRP (Dec. 2, 2016) at 38-40. But this is
not a case of vicarious liability; Porter and Zimmer allege
that the Kirkendolls are directly, not vicariously, liable.
CP at 1-3. The Court of Appeals reversed the trial court
partly for this reason, Porter, 5 Wn.App. 2d at
699-700, and we affirm.
contrast to direct liability, which is liability for breach
of one's own duty of care, vicarious liability is
liability for the breach of someone else's duty of
care." 16 David K. DeWolf & Keller W. Allen,
Washington Practice: Tort Law And Practice § 4:1, at
178-79 (4th ed. 2013). A principal may be vicariously liable
"as a matter of public policy to ensure that the
plaintiff has the maximum opportunity to be fully
compensated." Glover v. Tacoma Gen. Hosp., 98
Wn.2d 708, 723, 658 P.2d 1230 (1983), abrogated on other
grounds by Crown Controls, Inc. v. Smiley, 110 Wn.2d
695, 756 P.2d 717 (1988). But that public policy is
"inapplicable when a plaintiff has accepted a release
from the primarily liable tortfeasor who was financially
capable of making him whole." Vanderpool v. Grange
Ins. Ass'n, 110 Wn.2d 483, 487, 756 P.2d 111 (1988).
"When ... a plaintiff settles with a solvent agent from
whom he could have received full compensation, the very
foundation of the principal's liability is
undermined." Id. In at least some situations,
then, a plaintiff releases a vicariously liable principal by
settling with a solvent agent. Glover, 98 Wn.2d at
plaintiff does not release a directly liable party by
settling with another directly liable party. In
Glover, the plaintiff alleged that a hospital was
both directly liable for breaching its "duty of care to
the patient" and "vicariously liable for the
negligent acts of its agents." Id. at 710. The
plaintiff and the hospital's agents settled,
id., and this court held that the settlement with
the solvent agents released the hospital from vicarious
liability, id. at 718-24. But the court also held
that the settlement did not release the hospital from direct
liability, id. at 722-23, and remanded for trial on
that issue, id. at 709. Accord Seattle W.
Indus., Inc. v. David A. Mowat Co., 110 Wn.2d 1, 5, 750
P.2d 245 (1988) (noting that the settlement in
Glover relieved the hospital of vicarious but not
case involves direct, not vicarious, liability. Porter and
Zimmer allege that Pepper Kirkendoll is directly liable for
breach of his own duty of care. CP at 2-3; Porter &
Zimmer's Answer to Pet. for Review at 12 ("This case
was never a vicarious liability case."). In his
deposition, Pepper Kirkendoll acknowledged that he
represented to G & J Logging that he and Clarice
Kirkendoll owned all the land west of Madison Drive. CP at
45, 53. A person who directs or advises another to commit a
timber trespass is liable for his or her own "culpable
misfeasance." Ventoza v. Anderson, 14 Wn.App.
882, 896, 545 P.2d 1219 (1976); see also Hill v.
Cox,110 Wn.App. 394, 404, 41 P.3d 495 (2002) (upholding
liability of the individual who directed loggers to cut the
trees but did not cut the trees ...