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Porter v. Kirkendoll

Supreme Court of Washington, En Banc

September 26, 2019

JERRY PORTER and KAREN ZIMMER, husband and wife, Respondents,
v.
PEPPER E. KIRKENDOLL and CLARICE N. KIRKENDOLL, husband and wife, Petitioners, KYLE PETERS AND ANDREA PETERS, husband and wife; G & J LOGGING, INC., a Washington Corporation; MITCH PAYNE; JOHN BOGER; DANIEL SHEETS, a/k/a BOONE SHEETS, and JENNIFER SHEETS, husband and wife; BOONE'S MECHANICAL CUTTING, INC, a Washington Corporation; and JOHN DOES 1-5, Defendants.

          GORDON McCLOUD, J.

         Pepper 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.

         The 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 statute.

         We 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.

         Factual and Procedural Background

         Pepper 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.

         Nevertheless, 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.

         Porter and Zimmer sued the Kirkendolls, G & J Logging, [1] and Boone's Mechanical Cutting[2] 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 586-88.

         Porter and Zimmer settled with the G & J and Boone defendants for $125, 000. CP at 164, 225.[3] As part of the settlement, the G & J and Boone defendants assigned to Porter and Zimmer their contribution and indemnity cross claims against the Kirkendolls. Id.

         Porter 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.

         The 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, [4] 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 85-87.

         Adopting 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.

         Porter 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.[5]

         The 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 1009 (2019).

         Standard of Review

         We 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).

         Analysis

         I. The settlement did not release the Kirkendolls from liability

         The 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.

         "In 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 722-23.

          But a 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 direct liability).

         This 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 ...


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