STATE OF WASHINGTON, WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, Respondents,
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,
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.
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
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. 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.
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.
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.
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.
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.
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.
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.
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.
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)).
granted the trucking companies' petitions for review. 192
Wn.2d 1022 (2019)
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
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. 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).
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.
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.
46.44.020 (emphasis added). Chapter 46.44 RCW also provides
[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
comparative fault statute ...