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State, Washington State Department of Transportation v. Mullen Trucking 2005, Ltd.

Supreme Court of Washington, En Banc

October 31, 2019

STATE OF WASHINGTON, WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, Respondents,
v.
MULLEN TRUCKING 2005, LTD., a Canadian corporation or business entity d/b/a MULLEN TRUCKING LP; WILLIAM SCOTT and JANE DOE SCOTT, individually and the marital community composed thereof, Petitioners. DANIEL A. SLIGH and SALLETTEER. SLIGH, individually and the marital community composed thereof; BRYCE KENNING, a single person, Plaintiffs, And SAXON ENERGY SERVICES, INC., TAMMY J. DETRAY and GREGORY DETRAY, individually and the marital community composed thereof; G&T CRAWLERS SERVICE, a Washington business entity, Defendants. MULLEN TRUCKING 2005, LTD., a Canadian corporation or business entity d/b/a MULLEN TRUCKING LP; WILLIAM SCOTT and JANE DOE SCOTT, individually and the marital community composed thereof, Petitioners,
v.
STATE OF WASHINGTON, Respondent, PATTY AUVIL d/b/a OLYMPIC PENINSULA PILOT SERVICE and JOHN DOE AUVIL, individually and the marital community composed thereof; AMANDEEP SIDHU and JANE DOE SIDHU, individually and the marital community composed thereof, Defendants, and MOTORWAYS TRANSPORT, LTD, a Canadian corporation, Petitioner.

          GONZALEZ, J.

         This case involves the interplay of our 1986 comparative fault statute, RCW 4.22.070, with two provisions of the 1937 motor vehicle act, RCW 46.44.020 and RCW 46.44.110. RCW 46.44.020 governs maximum vehicle heights and .110 imposes broad liability on those who cause damage to bridges and elevated structures while driving. We are asked to decide whether fault may be allocated to the State under our comparative fault statute when our maximum height statute states that "no liability may attach" to the State under these circumstances. We find no fault may be allocated to the State and affirm.

         Facts

         On May 23, 2013, a clear and sunny day, William Scott, a driver for Mullen Trucking 2005 Ltd., was transporting a 15-foot 11-inch oversize load on Interstate 5 from Canada to Vancouver, Washington.[1] Along the route was the Skagit River Bridge. The bridge varied in vertical clearance from 17 feet 3 inches in the center to 14 feet 5 inches at the edge.

         Scott's truck had a pilot vehicle, a 1997 Dodge Ram pickup truck driven by Tammy Detray. A pilot vehicle works in conjunction with the driver of an oversize load to guide it safely to its destination. As they entered and crossed the bridge in the right lane, Detray was distracted, talking to her husband on a hands-free cell phone device. Affixed to the right front of Detray's pickup was a 16-foot 2-inch tall clearance pole. In a written statement, Detray stated she did not strike the bridge with the pole. This was contradicted by at least one witness, Dale Ogden, who saw Detray's clearance pole hit the bridge four or five times. Detray was only 4.12 seconds and between 332 and 363 feet ahead of Scott; according to experts, even if Detray had alerted Scott to a clearance issue, Scott was too close to alter his path. Detray later admitted in her deposition that she should not have been in the right lane.

         As Scott neared the bridge, he noticed a truck behind him quickly approaching. About a half mile before they entered the bridge, the approaching truck, which was owned by codefendant Motorways Transport Ltd. and driven by Amandeep Sidhu, was "virtually beside" Scott on his left. Clerk's Papers (CP) at 207. As they entered the bridge, Sidhu's truck was halfway beside Scott's truck, confining Scott to the right side of the bridge.

         Scott's oversize load struck the lower right curvature portion of 11 sway braces. Next there was a giant bang, and "everything got violent." Id. at 210. Scott held on and slammed on the brake pedal. There was another bang, objects were thrown through the air, and everything shook. Scott coasted to the end of the bridge. He understood what happened only when he looked back and "realized the bridge was in the water." Id. at 212. Sidhu did not stop and later said he did not know what had occurred.

         By striking the trusses, Scott caused the north bridge section to collapse into the river. The Major Accident Investigation Team of the Washington State Patrol and the National Transportation Safety Board investigated the accident. Even though the load was two inches over the permit limit, it would have cleared the bridge if the truck had been in the left lane. The investigation team determined the proximate cause of this collision sequence was directly attributable to Scott's negligence. While the Skagit River Bridge was out of commission, traffic on I-5 was severely affected, and several detour routes were used until a temporary bridge was installed on June 18, 2013.

         The State sued Mullen Trucking and Motorways Transport for negligence. The trucking companies counterclaimed, claiming the State was also negligent. The trucking companies have since conceded that the State cannot be held liable, but they seek to allocate fault to the State under our comparative fault statute to offset any damage award that may be entered against them.

         The trucking companies base their negligence claims on numerous grounds. Among them, the State's duty to maintain roads and bridges; the fact that the State issued a permit for a load size that did not fit on its bridges; the fact that the bridge had been deemed "functionally obsolete" and a "Fracture Critical Bridge," CP at 329, 330; and the fact that the bridge had been struck nine times before.

         The State moved for partial summary judgment, asserting that under RCW 46.44.020, no portion of the damages could be allocated to it. The trucking companies opposed the summary judgment motion, claiming that the State is not immune from purely defensive counterclaims and that RCW 46.44.020, the maximum height statute, is not a strict liability statute. The trial court granted the State's motion.

         The trucking companies successfully moved for interlocutory review. The Court of Appeals affirmed the trial court. The Court of Appeals found a conflict between chapter 46.44 RCW and RCW 4.22.070, concluded chapter 46.44 RCW was more specific, and applied it. Dep't. of Transp, v. Mullen Trucking 2005, Ltd., 5 Wn.App. 2d 787, 797-98, 428 P.3d 401 (2018). The Court of Appeals held the maximum height statute limited the State's actionable duty in tort, thereby precluding any allocation of fault. Id. at 797-98 (citing Smelser v. Paul, 188 Wn.2d 648, 653-54, 398 P.3d 1086 (2017)).

         We granted the trucking companies' petitions for review. 192 Wn.2d 1022 (2019)

         Analysis

         This case presents questions of statutory interpretation. Our review is de novo. Williams v. Tilaye, 174 Wn.2d 57, 61, 272 P.3d 235 (2012) (citing State v. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003)). Our role in interpreting statutes is "to discern and implement the legislature's intent." Id. (citing State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)). The plain meaning of the statutes may be discerned "from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision[s] in question." Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002).

         Our constitution gives the legislature considerable power to determine if and when the State may be sued. "The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state." Const, art. II, § 26. For many years the legislature did not consent to suit, maintaining common law sovereign immunity from suit for tortious conduct. See Debra L. Stephens & Bryan P. Haraetiaux, The Value of Government Tort Liability: Washington State's Journey from Immunity to Accountability, 30 SEATTLE U. L. Rev. 35, 37 (2006). The State waived its immunity in 1961. Laws OF 1961, ch. 136, § 1, codified as RCW 4.92.090.[2] The State's waiver of immunity "operates to make the State presumptively liable in all instances in which the Legislature has not indicated otherwise." Savage v. State, 127 Wn.2d 434, 445, 899 P.2d 1270 (1995).

         Here, the legislature has indicated otherwise. Under RCW 46.44.020, "[n]o liability may attach to the state" under these circumstances. We must decide the effect of this earlier, more specific statute, if any, on the general rule that damages must be allocated among most entities. See RCW 4.22.070.

         The maximum height statute states, in pertinent part:

[N]o liability may attach to the state or to any county, city, town, or other political subdivision by reason of any damage or injury to persons or property by reason of the existence of any structure over or across any public highway where the vertical clearance above the roadway is fourteen feet or more.

         RCW 46.44.020 (emphasis added). Chapter 46.44 RCW also provides that

[a]ny person operating any vehicle is liable for any damage to any public highway, bridge, elevated structure, or other state property sustained as the result of any negligent operation thereof. . . . Such damage to any state highway, structure, or other state property may be recovered in a civil action instituted in the name of the state of Washington

         RCW 46.44.110.

         Our comparative fault statute ...


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