King County v. Vinci Constr. Grands Projets/Parsons RCI/Frontier-Kemper, JV

• .,. •.• : •• ~ 7• ',, ....... ~ ~ • t 1
• ~.-~~ i .. r' ,.;_ :·,.:..·.~.;,

This opinion was filed for 'fecor'd

at 6'i~M 0-W\ on\!vJ~ ~/Jill
o~~
SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

KING COUNTY, )
)
Respondent, )
)
v. ) No. 92744-8
)
VINCI CONSTRUCTION GRANDS ) ENBANC
PROJETS/P ARSONS RCI/ )
FRONTIER-KEMPER, JV, a Washington ) Filed: __JUL OG 2017
joint venture, )
)
Defendant, )
)
LIBERTY MUTUAL INSURANCE )
COMP ANY, a Massachusetts corporation; )
FEDERAL INSURANCE COMPANY, an )
Indiana corporation; FIDELITY AND )
DEPOSIT COMPANY OF MARYLAND, a)
Maryland corporation; ZURICH )
AMERICAN INSURANCE COMP ANY, a )
New York corporation; and TRAVELERS )
CASUAL TY SURETY COMP ANY OF )
AMERICA, a Connecticut corporation, )
)
Petitioners. )
___________)
 King County v. Vinci Constr. Grands Projets, et al., No. 92744-8
- - - ------- -------------------- ----------------------- - - - - - - - ---!
YU, J. --This case requires us to examine an award of attorney fees against

five surety companies following a three-month jury trial for breach of contract in a

public works project. The parties litigated the issue of whether three construction

firms had defaulted on a contract, thus triggering coverage under a performance

bond issued by the surety companies. At issue is whether the existence of a

statutory fee provision bars equitable remedies available at common law for

coverage disputes and whether the trial court correctly determined that segregation

between covered and uncovered fees was impossible. The Court of Appeals

affirmed the award of Olympic Steamship fees and held that the trial court did not

abuse its discretion in determining that the fees could not be segregated. Olympic

S.S. Co. v. Centennial Ins. Co., 117 Wn.2d 37, 811 P.2d 673 (1991). For the

reasons discussed below, we now affirm.

FACTUAL AND PROCEDURAL HISTORY

The underlying facts are not at issue here, having been resolved by a jury

trial and being unchallenged by petitioners on appeal. In 2006, King County

contracted with three construction firms-Vinci Construction Grands Projets,

Parsons RCI, and Frontier-Kemper JV (collectively VPFK)-to expand its

wastewater treatment system. This expansion entailed the construction of a new

treatment plant along with three new conveyance tunnels that would increase the

treatment system's capacity to manage additional sewage from both Snohomish

2
King County v. Vinci Constr. Grands Pro.Jets, et al., No. 92744-8

County and King County residents and businesses. Because the project would

impact public health, the environment, and local economic growth, King County

required substantial completion of the project by November 14, 2010.

VPFK won the bid to construct the second and third sections of the central

tunnel, which together would measure 18 feet in diameter and 31,700 feet in

length. Further, both sections of the tunnel were to be excavated concurrently.

Under the terms of the contract, VPFK secured a performance bond from five

surety companies: Liberty Mutual Insurance Company, Travelers Casualty and

Surety Company of America, Federal Insurance Company, Fidelity and Deposit

Company of Maryland, and Zurich American Insurance Company (collectively

Sureties). IfVPFK failed to perform under the terms of the contract, the

performance bond obligated the Sureties to step in and "promptly remedy the

default in a manner acceptable to [King County]." Clerk's Papers (CP) at 5542.

Throughout the project, VPFK encountered a number of difficulties with its

equipment and management. At the time of its bid, VPFK estimated it could dig

57 feet per day on the longest tunnel, yet during the course of construction it

averaged only 28 feet per day. VPFK's tunnel-boring machines broke down

numerous times, including one nine-month delay during which VPKF attempted

(and failed) to ease the tunnel's atmospheric pressure by removing groundwater

before repairing the stalled machine. VPFK submitted numerous change orders

3
King County v. Vinci Constr. Grands Projets, et al., No. 92744-8

and at one point agreed to establish a workshop of experts from various disciplines

to "'mutually review all aspects of the tunneling operation to develop strategies for

the remaining construction.'" Id. at 7046.

When it became clear that VPFK was not "prosecuting the Work with

sufficient diligence to achieve Substantial Completion within the Contract Time,"

King County declared VPFK to be in default and requested a corrective action plan

that would ensure completion within the contract's deadline. Id. at 576. VPFK

submitted its revised schedule to King County, estimating a completion date

several years past the contract's deadline and at a significantly greater cost. As a

result, King County entered into an interim agreement with VPFK to hire a

different contractor to complete a portion of the work.

King County notified the Sureties of its plan and requested that the Sureties

either cure VPFK's default themselves or agree to fund the new contractor.

Instead, the Sureties argued that performance was not required under the bond

because no breach had occurred. On April 19, 2010, King County filed suit against

VPFK and one of the sureties, Travelers Casualty and Surety Company of

America, claiming breach of contract and seeking declaratory relief that VPFK was

in default and that the Sureties were joint and severally liable. The remaining four

surety companies intervened, and together the Sureties, while denying coverage,

also adopted all of VPFK's defenses against breach of contract.

4
King County v. Vinci Cons tr. Grands Projets, et al., No. 92744-8

At trial, the jury was asked to consider whether "VPFK was in default of its

obligations under the Contract by failing to perform its work so as to ensure

substantial completion by the Contract deadline" and whether "the Sureties

breached their obligations under the Bond because the Sureties failed to pay King

County's costs and expenses incurred because ofVPFK's default." Id. at 9091.

The jury found in favor of King County and awarded nearly $130 million in

damages. Pursuant to Olympic Steamship, 117 Wn.2d 37, the trial court awarded

King County its attorney fees and costs totaling nearly $15 million. The trial court

further held that the fees could not be segregated because King County's claim

against the Sureties was intertwined and indistinguishable from its claim against

VPFK.

On appeal, the Sureties argued that Olympic Steamship did not apply

because the fee provisions of RCW 39.04.240 are the exclusive fee remedy in

public works contracts. Further, the Sureties disagreed with the trial court's

determination that the fees could not be segregated. The Court of Appeals

affirmed the award of fees, holding both that RCW 39.04.240 was not the

exclusive fee remedy and that the fees could not be segregated. King County v.

Vinci Constr. Grands Projets/Parsons RCI/Frontier-Kemper, JV, 191 Wn. App.

142, 184, 189,364 P.3d 784 (2015). We granted the Sureties' petition for review

5
King County v. Vinci Constr. Grands Projets, et al., No. 92744-8

and affirm. King County v. Vinci Constr. Grands Projets/Parsons RCI/Frontier-

Kemper, JV, 186 Wn.2d 1008, 380 P.3d 459 (2016).

ISSUES

A. Is RCW 39.04.240, which applies the attorney fee award provisions of

RCW 4.84.250 through RCW 4.84.280 to public works contracts, the exclusive fee

remedy available in public works contract disputes where the primary issue is

coverage?

B. Did the trial court err in determining that the award of attorney fees

could not be segregated?

ANALYSIS

An award of attorney fees is an issue of law that this court reviews de novo.

Durland v. San Juan County, 182 Wn.2d 55, 76, 340 P.3d 191 (2014).

"Washington follows the American rule in awarding attorney fees." Dayton v.

Farmers Ins. Grp., 124 Wn.2d 277,280, 876 P.2d 896 (1994). Under the

American rule, a court may award fees only when doing so is authorized by a

contract provision, a statute, or a recognized ground in equity. Hamm v. State

Farm Mut. Auto. Ins. Co., 151 Wn.2d 303, 325, 88 P.3d 395 (2004). One such

equitable ground is the rule announced in Olympic Steamship. 117 Wn.2d at 53.

In Olympic Steamship, an insured warehouseman sought reimbursement of

claims paid to salmon packers from its general comprehensive liability insurer. Id.

6
King County v. Vinci Constr. Grands Projets, et al., No. 92744-8

at 39-40. The insurers denied coverage for the claims, forcing the warehouseman

to file suit. Id. at 40. When the warehouseman prevailed at trial, we awarded

attorney fees, holding that "an award of fees is required in any legal action where

the insurer compels the insured to assume the burden of legal action, to obtain the

full benefit of his insurance contract." Id. at 53.

The fee rule announced in Olympic Steamship applies equally to suretyships

and performance bonds. In 2007, four justices of this court noted that there is no

material distinction between performance bonds and insurance contracts and that

"all surety bonds are regarded as 'in the nature' of insurance contracts." Colo.

Structures, Inc. v. Ins. Co. of W., 161 Wn.2d 577, 598, 167 P.3d 1125 (2007)

(plurality opinion) (quoting Nat'l Bank of Wash. v. Equity Inv 'rs, 86 Wn.2d 545,

553, 546 P.2d 440 (1976)). Although there are certainly many distinctions

between suretyship and insurance, the lead opinion noted that "the relative

positions of the contractor and the surety compel, pursuant to Olympic Steamship,

an award of attorney fees when the surety wrongfully denies coverage." Id. at 601

(Chambers, J., lead opinion). Justice Sanders agreed on the issue of awarding

attorney fees in his dissenting opinion, describing this as a separate, "second

issue." Id. at 638 (Sanders, J., dissenting). Thus, a majority 1 of the court agreed

1
The Sureties quote a footnote in Matsyuk v. State Farm Fire & Casualty Co., 173
Wn.2d 643, 660 n.5, 272 P.3d 802 (2012), stating that "'Colorado Structures does not have a
majority rule."' Sureties' Suppl. Br. at 11. But as amici correctly point out, "footnote 5 was

7
King County v. Vinci Constr. Grands Projets, et al., No. 92744-8

that attorney fees under Olympic Steamship are available in the context of

performance bonds, and attorney fees were in fact awarded to the insured in

Colorado Structures on this basis. Clerk's Ruling Regarding Setting of Att'y Fees

& Am. Clerk's Ruling on Costs, Colo. Structures, Inc. v. Ins. Co. of W., No.

76973-7 (Wash. May 13, 2008); see In reDet. ofReyes, 184 Wn.2d 340,346,358

P.3d 394 (2015) ("A principle of law reached by a majority of the court, even in a

fractured opinion, is not considered a plurality but rather binding precedent.").

Although the Sureties ask us to reconsider Colorado Structures, they make

no showing that the court's reasoning was in error. Instead, the Sureties contend

that the equitable and public policy principles underlying Olympic Steamship are

not present in the surety context. As amici point out, "The sureties resurrect the

same arguments that the Colorado Structures majority rejected." Br. of Amici

Curiae Wash. State Ass'n of Mun. Att'ys, Ass'n of Wash. Cities, & Wash. State

Ass'n of Counties at 7; see Colo. Structures, 161 Wn.2d at 611 (Madsen, J.,

concurring in the dissent). In the nine years since Colorado Structures, the

legislature has not acted contrary to our holding. Without a "'clear showing that an

established rule is incorrect and harmful,'" we shall not revisit settled legal

certainly 'not ... essential to [Matsyuk's] determination,' and therefore relegates that footnote to
obiter dictum." Br. of Amici Curiae Wash. State Ass'n of Mun. Att'ys, Ass'n of Wash. Cities, &
Wash. State Ass'n of Counties at 6 n.2 (alterations in original) (quoting State ex rel. Lemon v.
Langlie, 45 Wn.2d 82, 89,273 P.2d 464 (1954)).

8
King County v. Vinci Constr. Grands Pro.Jets, et al., No. 92744-8

principles. City ofFederal Way v. Koenig, 167 Wn.2d 341,346,217 P.3d 1172

(2009) (internal quotation marks omitted) (quoting Riehl v. Foodmaker, Inc., 152

Wn.2d 138, 147, 94 P.3d 930 (2004)).

Instead, we consider first whether the existence of a statutory fee remedy

enacted after our decision in Colorado Structures reveals an intent by the

legislature to exclude all other fee remedies in public works contracts, including

the equitable remedy under Olympic Steamship and Colorado Structures. For the

reasons discussed below, we hold that it does not.

A. RCW 39.04.240 is not the exclusive fee remedy in a public works contract

Under Washington law, the prevailing party to an action for damages not

exceeding $10,000 may be awarded attorney fees. RCW 4.84.250. The party

seeking relief is deemed to have prevailed in the action "when the recovery,

exclusive of costs, is as much as or more than the amount offered in settlement by

the ... party seeking relief." RCW 4.84.260. Service of a settlement offer must be

made within a specific period of time after filing suit. RCW 4.84.280. Pursuant to

RCW 39.04.240, the provisions set forth in RCW 4.84.250 through RCW 4.84.280

also apply to actions arising out of a public works contract, with revisions to the

time period for serving settlement offers and removal of the $10,000 maximum.

"The legislature has the power to supersede, abrogate, or modify the

common law." Potter v. Wash. State Patrol, 165 Wn.2d 67, 76, 196 P.3d 691

9
King County v. Vinci Constr. Grands Projets, et al., No. 92744-8

(2008). However, we will not deviate from the common law "'unless the language

of a statute be clear and explicit for this purpose."' Id. at 77 (internal quotation

marks omitted) (quoting Norfolk Redevelopment & Haus. Auth. v. Chesapeake &

Potomac Tel. Co. of Va., 464 U.S. 30, 35, 104 S. Ct. 304, 78 L. Ed. 2d 29 (1983)).

In determining whether a statute supersedes, abrogates, or modifies the common

law, we will look to the language of the statute, whether that language contains an

express statement of exclusivity, and other expressions of legislative intent. Id. at

80. Alternatively, legislative intent to repeal the common law may be found where

"'the provisions of a ... statute are so inconsistent with and repugnant to the prior

common law that both cannot simultaneously be in force."' Id. (alteration in

original) (quoting State ex rel. Madden v. Pub. Util. Dist. No. 1, 83 Wn.2d 219,

222, 517 P.2d 585 (1973)). Therefore, in order to find that RCW 39.04.240

provides the exclusive means for recovering attorney fees in this action, we must

find either that the legislature explicitly intended such exclusivity or that RCW

39.04.240 is so inconsistent with Olympic Steamship that they both cannot

simultaneously apply.

The Sureties correctly point out that an award of fees under RCW 4.84.250-

.280 as applied by RCW 39.04.240 requires that the prevailing party make a timely

settlement offer. RCW 4.84.260; Sureties' Suppl. Br. at 6. However, this is a

condition precedent to recovery under this statutory scheme; it does not represent a

10
King County v. Vinci Cons tr. Grands Projets, et al., No. 92744-8

limitation on awarding attorney fees in the context of public works contracts and

insurance coverage. There is no language within either RCW 4.84.250-.280 or

RCW 39.04.240 suggesting that the legislature intended to exclude all other means

of recovering attorney fees. The legislature simply took an existing statutory

remedy and made it available to actions arising out of a public works contract.

There is nothing in the legislative history indicating that RCW 39.04.240

was intended to proscribe alternative fee remedies. Testimony for the original bill

stated quite plainly that "[t]he purpose of the bill is to encourage settlements."

H.B. REP. ON ENGROSSED S.B. 6407, at 2, 52d Leg., Reg. Sess. (Wash. 1992).

Because "[p]ublic agencies seem to react to litigation as if their attorneys are free,"

the legislature expected an award of fees to result in "decision[s] to pursue the law

suit ... on the merits of the case and not on the costs of going to court." Id. There

is no indication that the bill was a reaction to a court decision allowing for

equitable remedies, and in the final bill report for RCW 39.04.240, the legislature

recognized that attorney fees may be awarded as authorized by statute, contract, or

equitable common law grounds. FINAL B. REP. ON ENGROSSED S.B. 6407, at 1, 52d

Leg., Reg. Sess. (Wash. 1992).

Seven years later, the legislature amended RCW 39.04.240 to remove the

maximum pleading amount of $250,000. LAWS OF 1999, ch. 107, § 1(1).

Testimony in favor of the bill pointed out that "[t]hese contracts are very one-

11
K"ing County v. Vinci Constr. Grands Projets, et al., No. 92744-8

sided, and in cases near the $250,000 limit, the public agency has little incentive to

compromise or settle now." H.B. REP. ON H.B. 1671, at 2, 56th Leg., Reg. Sess.

(Wash. 1999). The legislature noted that the statute "works very well to save both

sides time and money" and that removing the maximum pleading amount would

"force both sides to act reasonably." Id. While clearly encouraging resolution of

claims through settlement, there was no language indicating an intent to foreclose

existing alternative equitable remedies recognized at common law.

Finally, the provisions of RCW 4.84.250-.280 are not "'so inconsistent with

and repugnant to'" other available remedies as to evidence the legislature's intent

for exclusivity. Potter, 165 Wn.2d at 77 (quoting State ex rel. Madden v. Pub.

Util. Dist. No. 1, 83 Wn.2d 219,222,517 P.2d 585 (1973)). The dissent by Justice

Wiggins does not distinguish between coverage disputes and claims disputes-a

distinction that is critical here because each fee remedy applies to only one type of

dispute or the other. While a single case may entail both a coverage and a claims

dispute, there is never a situation where "both avenues of recovery are available"

for the same part of the dispute. Dissent at 1.

An award of attorney fees under Olympic Steamship is restricted to disputes

where the insurer forces the insured to litigate coverage and then loses. Solnicka v.

Safeco Ins. Co. of Ill., 93 Wn. App. 531, 533, 969 P.2d 124 (1999); see Leingang v.

Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 144-45, 930 P.2d 288 (1997)

12
King County v. Vinci Constr. Grands Projets, et al., No. 92744-8

(awarding fees in a dispute involving a coverage exclusion); Estate of Jordan v.

Hartford Accident & Indem. Co., 120 Wn.2d 490, 508, 844 P.2d 403 (1993)

( awarding fees in a dispute involving the language of a fidelity bond); Axess Int 'l

Ltd. v. Intercargo Ins. Co., 107 Wn. App. 713, 722, 30 P.3d 1 (2001) (awarding

fees in a dispute involving coverage under a maritime surety bond). "Coverage

questions focus on such questions as whether there is a contractual duty to pay,

who is insured, the type of risk insured against, or whether an insurance contract

exists at all." Solnicka, 93 Wn. App. at 534. In contrast, a claims dispute involves

factual questions as to the extent of damages. Id.; Axess, 107 Wn. App. at 721

("Fees are awarded under Olympic Steamship where the insurer unsuccessfully

denies coverage, not where the insurer acknowledges coverage but disputes the

value of the claim.").

By way of operation, RCW 4.84.250 does not apply to coverage disputes

because such disputes are legal in nature: either there is coverage under the

language of the insurance contract or bond or there is not. See, e.g., Colo.

Structures, 161 Wn.2d at 606 ("Since the question is a legal one, which required

Structures to litigate to obtain a declaratory judgment ruling regarding the meaning

of the contract, it is a coverage dispute."). On the other hand, the statutory fee

remedy clearly envisions a situation where the parties disagree about the amount

owed rather than the legal question of whether performance has been triggered.

13
King County v. Vinci Constr. Grands Pro.Jets, et al., No. 92744-8

See id. ("This case would be in the nature of a claims dispute if [the surety] had

agreed to pay under the bond, but had a factual dispute with Structures as to the

amount of the payment." (emphasis omitted)). Any pretrial settlement offer by the

sureties must naturally include an agreement that performance is owed, and once

the parties agree that performance is owed, Olympic Steamship fees are no longer

available.

As is often the case, many disputes involve both a coverage question and a

claims question. The dissent argues that such a scenario "demonstrates that the

two separate [fee remedies] are repugnant to one another and cannot apply

simultaneously." Dissent at 4. However, the dissent also recognizes the

appropriate mechanism for resolving this issue: "[T]he court could potentially

apportion the fees between coverage and damages." Id. In fact, we have instructed

courts to do just that when an award of attorney fees is authorized for some, but not

all, of one party's claims. Hume v. Am. Disposal Co., 124 Wn.2d 656, 672, 880

P.2d 988 (1994) (directing the court to segregate an award of fees when

necessary); see Mayer v. Sta Indus., Inc., 156 Wn.2d 677, 693, 132 P.3d 115

(2006); MP Med. Inc. v. Wegman, 151 Wn. App. 409, 426-27, 213 P.3d 931

(2009).

Following our settled rules, the trial court in the example above would

segregate the fees related to the coverage question from fees related to the amount

14
King County v. Vinci Constr. Grands Projets, et al., No. 92744-8

owed. The public body would be entitled to the former, and the surety would be

entitled to the latter. The statutory fee remedy is not inconsistent with and

repugnant to the fee rule in Olympic Steamship merely because each party receives

an award of fees for different parts of the same case.

Under the facts of this case, King County opted not to include a fee

provision in either the construction contract or the performance bond, both of

which were drafted by King County. See RCW 4.84.330. As the Sureties suggest,

this may have been a strategic decision to limit liability for attorney fees in the

event that King County found itself in breach of the contract. Sureties' Suppl. Br.

at 5. King County did not make an offer of settlement under RCW 39.04.240, but

that too is not surprising. As mentioned above, there is very little middle ground

on which to construct a settlement offer in a pure coverage dispute; King County

insisted there was coverage under the bond, and the Sureties insisted there was not.

Instead of performing under a reservation of rights, the Sureties compelled King

County to assume the burden of legal action to obtain the benefit of the

performance bond by proving that a breach had occurred. Thus, attorney fees were

available under Olympic Steamship. 117 Wn.2d at 53.

B. The fees in this case could not be segregated because the Sureties adopted
the contract defenses of VPFK

The Sureties next argue that the trial court erred when it failed to segregate

the fees between King County's claim against VPFK and King County's claim

15
King County v. Vinci Constr. Grands Projets, et al., No. 92744-8

against the Sureties. However, by adopting the entirety of VPFK's defenses

against breach, the Sureties made the two claims indistinguishable. The Court of

Appeals held that the trial court did not abuse its discretion in ruling that

segregation was impossible. We agree.

We review the trial court's determination of whether segregation is possible

for abuse of discretion. Mayer, 156 Wn.2d at 693. The trial court abuses its

discretion '"when its exercise of discretion is manifestly unreasonable or based

upon untenable grounds or reasons."' Allard v. First Interstate Bank of Wash., NA,

112 Wn.2d 145, 148, 768 P.2d 998, 773 P.2d 420 (1989) (quoting Davis v. Globe

Mach. Mfg. Co., 102 Wn.2d 68, 77,684 P.2d 692 (1984)). "If ... an attorney fees

recovery is authorized for only some of the claims, the attorney fees award must

properly reflect a segregation of the time spent on issues for which attorney fees

are authorized from time spent on other issues." Hume, 124 Wn.2d at 672.

However, segregation of fees is not necessary where "the trial court finds the

claims to be so related that no reasonable segregation of successful and

unsuccessful claims can be made." Id. at 673.

The Sureties argue that King County's lawsuit involved a claims dispute, not

a coverage dispute, and was separate from the cause of action against VPFK.

Sureties' Suppl. Br. at 19. We find the Sureties' argument unpersuasive against

the weight of the record before us. Prior to litigation, the Sureties asserted that

16
King County v. Vinci Constr. Grands Projets, et al., No. 92744-8

"the County's handling of the Project deprived the Co-Sureties of their rights,

thereby prejudicing them and barring claims on the Bond." Ex. 162, at 20

(emphasis added). The Sureties further declared as follows: "VPFK is not in

default of its contract obligations and the County has not performed its obligations

thereunder. Accordingly, the County's claim is respectfully denied. All rights and

defenses are fully reserved." Id. at 20-21. At trial, the court found that the

Sureties "adopted all ofVPFK's defenses in this case, including claims for various

differing site condition ... claims, which, if proved in their entirety, would defeat

King County's claim of default." CP at 4489. Finally, the Sureties admitted that

they had ultimately made the decision to deny coverage under the bond. Certified

Tr. (Mar. 22, 2013) at 77. Clearly, the Sureties were not debating the amount

owed under the performance bond-rather, the Sureties took the position that

performance under the bond had not been triggered because no default had

occurred.

Of course, it is not difficult to understand the litigation strategy at play here.

Successful defense of the breach claim against VPFK meant that the Sureties

would not be called on to perform under the bond. Although the Sureties suggest

they "played no meaningful role in the lengthy trial," Sureties' Suppl. Br. at 19, the

trial court's findings in fact suggest that the Sureties vigorously worked to defeat

King County's claims against VPFK. See CP at 4487. Additionally, the Sureties

17
King County v. Vinci Constr. Grands Projets, et al., No. 92744-8

retained five different experts to buttress VPFK's contract defenses dealing with

scheduling and productivity, geological conditions, mechanical tunneling and

mining, and mud and slurry issues. The Sureties joined with VPFK in requesting

jury instructions linking liability under the bond to a finding that VPFK was liable

for King County's damages. And defense counsel in closing argument reasserted

that the Sureties' panel of expert consultants "confirmed what VPFK had been

saying all along, that there was no default." Verbatim Report of Proceedings (Dec.

6, 2012) at 7022.

King County could prevail in asserting coverage under the performance

bond only by defeating VPFK's defenses against breach, and the Sureties threw

their considerable legal weight behind these defenses. While the Sureties'

litigation strategy was sensible, it resulted in the claims becoming inseparable. As

the trial court correctly noted, the issues of breach and coverage under the bond

shared a "common core of facts." CP at 4529; see Fiore v. PPG Indus., Inc., 169

Wn. App. 325,352, 279 P.3d 972 (2012). The jury instructions squarely presented

the claims against VPFK and the Sureties together. When attorneys for King

County prepared to argue the issue of breach, they had to contend not just with

counterarguments from VPFK but from the Sureties as well. Accordingly, the trial

court did not abuse its discretion in finding that the attorney fees could not be

segregated.

18
King County v. Vinci Constr. Grands Projets, et al., No. 92744-8

CONCLUSION

This court has previously held that the rule in Olympic Steamship applies to

performance bonds in the surety context. Although a statutory fee provision exists

for public works contracts under RCW 39.04.240, we hold that it is not the

exclusive fee remedy available. Furthermore, the trial court properly determined

that segregation of the fees was impossible. Accordingly, we affirm the Court of

Appeals.

19
King County v. Vinci Grands Constr. Projets, et al., No. 92744-8

WE CONCUR:

20
King County v. Vinci Constr. Grands Projets!Parsons RC//
Frontier-Kemper, JV, No. 92744-8

No. 92744-8

WIGGINS, J. (dissenting)-The legislature provided a clear and

comprehensive statute for recovering attorney fees in public works contract disputes.

The statute, RCW 39.04.240, explicitly seeks to encourage settlement by requiring all

parties to make and improve on a settlement offer before they may recover attorney

fees. This legislative scheme is "inconsistent with and repugnant to" the equitable

ground for awarding fees under Olympic S.S. Co. v. Centennial Ins. Co., 117 Wn.2d

37, 811 P.2d 673 (1991 ); if both avenues for recovery are available, then public entities

are free to disregard the statute's dictates. State ex rel. Madden v. Pub. Util. Dist. No.

1, 83 Wn.2d 219, 222, 517 P.2d 585 (1973). As a result, the statute plainly preempts

Olympic Steamship, providing the exclusive remedy for recovery of attorney fees in

public works contract disputes. Therefore, I respectfully dissent.

RCW 39.04.240 Is the Exclusive Remedy

The majority sets out the proper test for determining whether a statute

abrogates prior common law, but then applies it improperly. We must (1) find explicit

legislative intent that a statute be the exclusive remedy or (2) determine that a statute

is so inconsistent with prior common law that both cannot simultaneously apply. See

majority at 9-1 O; RCW 39.04.240.

RCW 39.04.240 establishes a process for awarding attorney fees to the

prevailing party in a public works contract. The statute adopts the award process found

in RCW 4.84.250 through 4.84.280, and removes the limit on damages found in those
King County v. Vinci Constr. Grands Projets!Parsons RC//
Frontier-Kemper, JV, No. 92744-8
(Wiggins, J., dissenting)

statutes. RCW 39.04.240(1 ). It incorporates the requirement that "in any action for

damages ... there shall be taxed and allowed to the prevailing party as a part of the

costs of the action a reasonable amount to be fixed by the court as attorneys' fees."

RCW 4.84.250.

A plaintiff is the prevailing party when he or she recovers as much as or more

than the amount that the plaintiff offered in settlement. RCW 4.84.260. A defendant is

the prevailing party when the plaintiff recovers as much as or less than the amount

that the defendant offered in settlement. RCW 4.84.270. Thus, the statutes require

both plaintiffs and defendants to make and improve on settlement offers before they

may recover attorney fees.

Parties may not contract around these requirements. "The rights provided

for ... may not be waived by the parties to a public works contract ... , and a provision

in such a contract that provides for waiver of these rights is void as against public

policy." RCW 39.04.240(2).

Inconsistency with Prior Common Law

"When determining whether a statute is exclusive, the court should strive to

uphold the purpose of the statute." Potter v. Wash. State Patrol, 165 Wn.2d 67, 87,

196 P.3d 691 (2008). "To determine legislative intent, we look first to the language of

the statute." State v. Watson, 146 Wn.2d 947, 954, 51 P.3d 66 (2002). We may also

use principles of statutory construction and legislative history to help in our

interpretation. Id. at 955; see also Potter, 165 Wn.2d at 88 (examining legislative

history to determine whether it would frustrate the legislative purpose of the statute if

2
King County v. Vinci Constr. Grands Projets!Parsons RC/I
Frontier-Kemper, JV, No. 92744-8
(Wiggins, J., dissenting)

we allowed the common law action to proceed). "Where ... the provisions of a later

statute are so inconsistent with and repugnant to the prior common law that both

cannot simultaneously be in force, the statute will be deemed to abrogate the common

law." State ex rel. Madden, 83 Wn.2d at 222.

1. Statutory Language

The statutory language here is inconsistent with and repugnant to Olympic

Steamship. The statute and Olympic Steamship define a "prevailing party" in

fundamentally different ways. The statute also prohibits parties from contracting

around its requirements. As a result, both cannot be in force simultaneously.

As discussed above, RCW 39.04.240 requires prevailing parties both to make

a settlement offer and to then improve on the offer. To prevail, a plaintiff must recover

the same as or more than his or her settlement offer. RCW 4.84.260. A defendant may

prevail only when the plaintiff recovers the same as or less than the defendant's

settlement offer. RCW 4.84.270. Parties may not waive these requirements. RCW

39.04.240(2).

Olympic Steamship has none of these requirements. Olympic Steamship

defines a "prevailing party" as a party who wins a lawsuit, when that lawsuit is forced

by an insurer's refusal "to defend or pay the ... claim." Olympic S.S., 117 Wn.2d at

52-53 (holding "that an award of fees is required in any legal action where the insurer

compels the insured to assume the burden of legal action, to obtain the full benefit of

his insurance contract, regardless of whether the insurer's duty to defend is at issue").

Colo. Structures, Inc. v. Ins. Co. of W, 161 Wn.2d 577, 601, 167 P.3d 1125 (2007)

3
King County v. Vinci Constr. Grands Projets/Parsons RC//
Frontier-Kemper, .JV, No. 927 44-8
(Wiggins, J., dissenting)

(plurality opinion), 1 expanded the "prevailing party" definition to a party who wins a

lawsuit when "the surety wrongfully denies coverage."

These inconsistent definitions cannot be in force simultaneously, especially in

light of the statutory prohibition on waiver of the statutory requirements. To adopt the

majority's conclusion to the contrary would lead to absurd results. For example, under

the majority approach, both parties can be "prevailing parties." If a public body prevails

on a coverage dispute and recovers a modest award against a surety, Olympic

Steamship would entitle the public entity to attorney fees. But, if the surety made a

timely pretrial settlement offer that exceeded the recovery by the public entity, RCW

39.04.240 entitles the surety to attorney fees. To resolve this conflict, the court could

potentially apportion the fees between coverage and damages. But RCW 4.84.250

through 4.84.280 have no language contemplating such a split. And, in circumstances

like those presented here, where the trial court finds that the fees cannot be

segregated, 2 what is the court to do? Regardless of the potential solutions, the

example demonstrates that the two separate definitions are repugnant to one another

and cannot apply simultaneously.

The majority claims that distinguishing between coverage disputes and claims

disputes is critical here. Majority at 12. However, the majority ignores that coverage

1 We agree with the majority that Colorado Structures should not be overruled. See majority
at 7-9. In Colorado Structures, all parties involved were private parties. 161 Wn.2d at 581. In
contrast, RCW 39.04.240 applies only when a public entity is a party. RCW 39.04.240 ("The
provisions ... shall apply to an action arising out of a public works contract in which the state
or a municipality, or other public body that contracts for public works, is a party .... ").
2 See majority at 14.

4
King County v. Vinci Constr. Grands Projets!Parsons RC//
Frontier-Kemper, JV, No. 92744-8
(Wiggins, J., dissenting)

disputes are not merely abstract questions; instead, they are brought to determine

how much money an insurance company owes.

RCW 4.84.250 permits recovery of attorney fees "in any action for damages."

See RCW 39.04.240 (incorporating RCW 4.84.250's scheme by reference).

Therefore, the question is whether a claim for coverage is part of establishing an

action for damages for purposes of the statute. Absent context, a claim for establishing

coverage does not obviously seek damages but simply the resolution of a binary

question: Does coverage exist or not? Yet, this approach ignores the obvious and

inevitable goal of a coverage claim, which is to recover a dollar amount as a result of

coverage. Ultimately, a claim for coverage is an action for damages, thereby falling

within the statute's scope.

The practical connection between coverage and damages is especially clear in

this case: King County sought to prove that VPFK was in default under the contract,

that coverage by the sureties was thus established, and that the sureties were

therefore required '"to pay King County's costs and expenses incurred because of

VPFK's default."' Majority at 5 (quoting Clerk's Papers at 9091 ). King County sought

costs and expenses at trial; coverage was simply a necessary precursor toward that

end. Either party could make settlement offers in advance based on a monetary

amount.

We can also see how the statute would apply to possible settlement offers in

this case. Ultimately, the jury awarded King County close to $130 million. The fee

recovery statute would simply require that this total meet or exceed whatever

5
King County v. Vinci Constr. Grands Projets/Parsons RC!/
Frontier-Kemper, JV, No. 92744-8
(Wiggins, J., dissenting)

settlement amount was previously offered. Because there is no evidence that King

County made any settlement offer, there was nothing to meet or exceed. Thus, King

County is not entitled to recover fees under the statute. This approach acknowledges

the goals of coverage claims and the intent of the statute.

Even if we acknowledge that coverage and damages are two different issues,

here, they have been so "intertwined" as to be "indistinguishable." Majority at 5. King

County took the position-and prevailed-that coverage and determination of claims

were so interwoven in this case that King County should recover all its fees, not just

the fees incurred in establishing coverage. It is not clear why combining a coverage

question with a claim for damages results in the entire claim being treated as a

coverage question. The reason for favoring the case's treatment as a coverage

question is especially unclear in light of the statute's express purpose to encourage

settlement. All one has to do to avoid the statute's requirements is to raise a coverage

issue as part of a claim for damages; then, the public entity is free of any settlement

requirements. Far from a strict program to require reasonable efforts at settlement in

order to recover fees, the majority turns the statute into an optional and uninviting

alternative.

2. Principles of Statutory Construction

Our principles of statutory construction also compel the conclusion that RCW

39.04.240 abrogates Olympic Steamship in the public works context. First, since the

statute and Olympic Steamship both govern an award of attorney fees and are in

conflict with one another, we should construe the more specific statute as prevailing

6
King County v. Vinci Constr. Grands Projets!Parsons RC//
Frontier-Kemper, JV, No. 92744-8
(Wiggins, J., dissenting)

over the more general common law. Second, we may not grant the equitable award

of Olympic Steamship fees when there is a conflicting statutory method for recovery.

We construe specific statutes as prevailing over general statutes. 0. S. T. v.
Regence BlueShield,· 181 Wn.2d 691, 701, 335 P.3d 416 (2014). We apply this rule of

statutory construction when we conclude that the statutes concern the same subject

matter and "conflict to the extent they cannot be harmonized." Id. Here, both RCW

39.04.240 and Olympic Steamship govern an award of attorneys' fees. Their methods

for allowing an award of fees conflict and "cannot be harmonized." Id. As a result, we

should construe the more specific statute, RCW 39.04.240, as prevailing over the

more general case law, Olympic Steamship.

In addition, we will "not give relief on equitable grounds in contravention of a

statutory requirement." Longview Fibre Co. v. Cowlitz County, 114 Wn.2d 691, 699,

790 P.2d 149 (1990); 3 see also Stephanus v. Anderson, 26 Wn. App. 326, 334, 613

P.2d 533 (1980) ("Equity, however, also follows the law and cannot provide a remedy

where legislation expressly denies it."). RCW 39.04.240 clearly establishes the

method for awarding attorney fees in public works contract disputes. Olympic

Steamship, on the other hand, is an equitable remedy. As a result, the court cannot

award equitable fees to King County under Olympic Steamship in contravention of

RCW 39.04.240's requirements.

3 See also Williams v. Duke, 125 Wash. 250, 254, 215 P. 372 (1923) ( "'[W]herever the rights
or the situation of the parties are clearly defined and established by law, equity has no power
to change or unsettle those rights or that situation."' (quoting Magniac v. Thomson, 56 U.S.
(15 How.) 281, 299, 14. L. Ed. 696 (1853)).

7
King County v. Vinci Constr. Grands Projets!Parsons RC/I
Frontier-Kemper, JV, No. 92744-8
(Wiggins, J., dissenting)

Nor should King County's equity arguments overcome the statute's dictates. It

matters not that the majority believes that the statute's requirements are inconvenient

in these circumstances. See majority at 15 ("As mentioned above, there is very little

middle ground on which to construct a settlement offer in a pure coverage dispute.").

We are not permitted to render the statute meaningless for public entities, even if we

find its effects problematic. See Williams, 125 Wash. at 253 (noting that we may not

allow a party to "invoke[] the aid of equity to relieve [it] from the force of the statutory

rule"). The legislature deliberately imposed the offer of settlement requirement on all

parties to public works contracts. The proper recourse for public entities seeking a

way around that requirement is to seek an exemption from the legislature. Longview

Fibre Co., 114 Wn.2d at 699 ("Concerns over the efficacy of the statute are properly

addressed to the Legislature.").

The majority's reliance on policy justifications to preserve our common law is

also misplaced. See majority at 16. It is the legislature's role to weigh competing policy

interests. It did so here. Testimony offered to the legislature emphasized the policy

considerations of trial efficiency and avoiding lengthy litigation. See H.B. REP. ON

ENGROSSED S.B. 6407, at 2, 52d Leg., Reg. Sess. (Wash. 1992); see also H.B. REP.

ON SUBSTITUTE H.B. 1671, at 2, 56th Leg., Reg. Sess. (Wash. 1999) (testimony that

"[t]he offer-of-settlement statute works very well to save both sides time and money").

We cannot substitute the legislature's judgment with our own on this subject. State v.

Smith, 93 Wn.2d 329, 337, 61 O P.2d 869 (1980) ("The legislature represents the

people when it determines that a law is necessary, wise, or desirable, and the court is

8
King County v. Vinci Constr. Grands Projets/Parsons RC//
Frontier-Kemper; JV, No. 92744-8
(Wiggins, J., dissenting)

not empowered to substitute its judgment for that of the legislature."). As a result, we

must conclude that Olympic Steamship is abrogated in these circumstances.

3. Legislative History

Legislative history further demonstrates that the statute and Olympic Steamship

are inconsistent with one another. Our "primary objective [when interpreting statutes]

is to ascertain and give effect to the intent and purpose of the Legislature." Watson,

146 Wn.2d at 954. This court may examine legislative history when interpreting what

a statute means. Id.

Here, as the majority acknowledges, the purpose of RCW 39.04.240 "'is to

encourage settlements."' Majority at 11 (quoting H.B. REP. ON ENGROSSED S.B. 6407,

at 2. Testimony before the legislature noted that "[p]ublic agencies seem to react to

litigation as if their attorneys are free," wasting public funds. H.B. REP. ON ENGROSSED

S.B. 6407, at 2. RCW 39.04.240 would encourage settlement by requiring all parties,

especially public entities, in all public works contract disputes to make an offer of

settlement and improve on it at trial. See H.B. REP. ON SUBSTITUTE H.B. 1671, at 2

(testimony that "[t]hese contracts are very one sided" and "the public agency has little

incentive to compromise or settle now"). This condition of recovery created "a two-

edged sword that will force both sides to act reasonably." Id.

But the majority, by preserving the common law avenue of recovery, effectively

negates the legislature's incentive scheme. If a public entity may still recover its

attorney fees without making and improving on an offer of settlement, there is no

incentive for public agencies to seek fees under the statute's provisions. Instead, the

9
King County v. Vinci Constr Grands Projets!Parsons RC//
Frontier-Kemper, JV, No. 92744-8
(Wiggins, J., dissenting)

statute "will become a 'white elephant remedy' that 'few, if any, [public entities] would

choose to invoke.'" Wash. Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847,

855-56, 774 P.2d 1199 (1989). Contrary to explicit legislative intent, the majority

provides public entities with a back door to escape the statute's requirements.

Conclusion

RCW 39.04.240 "would accomplish little [to change the behavior of public

entities] if it were a measure plaintiffs could choose or refuse to abide at their

pleasure." Id. Because the legislature intended the statute to encourage public entities

to make reasonable settlement offers, the prior common law of Olympic Steamship

allowing the recovery of fees without an offer of settlement is too inconsistent to apply

simultaneously with the statute. We must consider the common law abrogated in

these circumstances. 4

For these reasons, I respectfully dissent.

4Since Olympic Steamship fees are not available, the question of whether the fees could be
segregated becomes moot, and we need not address it. See majority at 16-20.

10
King County v. Vinci Constr. Grands Projets/Parsons RC/I
Frontier-Kemper, JV, No. 92744-8
(Wiggins, J., dissenting)

11
King County v. Vinci Constr. Grands Projets, et al.

No. 92744-8

MADSEN, J. (concurring in dissent)-! concur with the dissent that a fee award

under Olympic Steamship Co. v. Centennial Ins. Co., 117 Wn.2d 37, 811 P.2d 673

( 1991 ), would undermine the statutory scheme for fees arising out of a public works

contract found in RCW 39.04.240. Dissent at 1. I write separately because I would also

hold that we should not extend Olympic Steamship fees to construction performance

bonds. Contrary to the majority's recitation, there is no precedential opinion from this

court that has held that such fees extend to this type of case. With no binding precedent, I

would decline the extension sought. Extending Olympia Steamship fees to construction

performance bonds is inappropriate because such bonds are fundamentally different from

casualty insurance policies. Therefore, I respectfully dissent.

The majority purports to be following precedent in allowing Olympic Steamship

fees in this case involving construction performance bonds, but the case that the majority

relies on, Colo. Structures, Inc. v. Ins. Co. ofW., 161 Wn.2d 577, 167 P.3d 1125 (2007)

(plurality opinion), did not create binding precedent. Indeed, Colorado Structures was a

decision with only four justices signing the lead opinion. The fractured opinion in

Colorado Structures is similar to that in State v. Rhone, 168 Wn.2d 645, 229 P.3d 752
No. 92744-8
Madsen, J., concurring in dissent

(2010) (plurality opinion). In that case too, the separate concurrence expressed its

desired resolution of the case and opined how it would resolve future cases. Id. at 658.

We subsequently held that the dicta relating to future cases had no precedential value

because it did not relate to the disposition of Rhone. State v. Meredith, 178 Wn.2d 180,

184, 306 P.3d 942 (2013). Thus, Rhone stands for the proposition that if a separate

opinion does not concur in the judgment, any language expressing how the law should be

applied in future cases cannot be considered part of the court's holding because that

language is not necessary to the resolution in the case and is thus dicta.

Rhone is consistent with the federal rule. Under that rule, "[w ]hen a fragmented

Court decides a case and no single rationale explaining the result enjoys the assent of five

Justices, 'the holding of the Court may be viewed as that position taken by those

Members who concurred in the judgments on the narrowest grounds."' Marks v. United

States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977) (emphasis added)

(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S. Ct. 2909, 49 L. Ed. 2d 859

(1976) (plurality opinion)). In Colorado Structures, the plurality extended the

availability of Olympic Steamship fees to cases involving surety bonds. 161 Wn.2d at

582. The plurality reasoned that surety bonds are "'in the nature'" of insurance contracts,

thus there was little to distinguish construction performance bonds from other forms of

insurance. Id. at 598,605 (quoting Nat'! Bank of Wash. v. Equity Inv'rs, 86 Wn.2d 545,

553,546 P.2d 440 (1976)). The present majority concludes that the extension of attorney

fees had majority support in Colorado Structures because of Justice Sanders' separate

2
No. 92744-8
Madsen, J., concurring in dissent

op1rnon. Majority at 7-8. In his opinion, Justice Sanders stated that although he

disagreed that it would apply in that case, he agreed that Olympic Steamship applies to

surety bonds and would reward attorney fees to a prevailing contactor. Colo. Structures,

161 Wn.2d at 638 (Sanders, J., dissenting).

But Justice Sanders did not concur in the judgment of the plurality; he dissented.

Under Marks, the "holding" of the court is the narrowest position agreed to by at least

five justices concurring in the judgment. Justice Sanders did not concur in the judgment

in Colorado Structures. Therefore, even though his dissenting opinion contains dicta

regarding attorney fees, there was not a binding holding of this court on that issue.

I acknowledge that our jurisprudence has been less than clear on how to determine

what, if any, legal principles from a fractured opinion are precedential. Compare

Meredith, 178 Wn.2d at 184, with In re Pers. Restraint of Francis, 170 Wn.2d 517, 532

n.7, 242 P.3d 866 (2010) ("When there is no majority opinion, the holding is the

narrowest ground upon which a majority agreed."). We have explicitly applied Marks

only when evaluating split opinions from the United States Supreme Court. See, e.g.,

State v. LG Elecs., Inc., 186 Wn.2d 169, 181,375 P.3d 1035 (2016). Without explicitly

adopting Marks, however, we have applied it. This case provides an opportunity for us to

end an era of confusion about what constitutes precedent from our fractured opinions and

make clear that we follow the federal Marks standard. Accordingly, I would hold that

Colorado Structures produced no binding holding as to attorney fees. Not bound by

3
No. 92744-8
Madsen, J., concurring in dissent

precedent, we should decline to extend the availability of Olympic Steamship fees to

sureties on a performance bond.

Olympic Steamship was a departure from the normal rule governing attorney fees,

and we should be slow to extend it. Under the "American rule," litigants pay their own

attorney fees unless a statute or contract provides otherwise. Marx v. Gen. Revenue

Corp., 568 U.S. 371, 133 S. Ct. 1166, 1175, 185 L. Ed. 2d 242 (2013) (quoting Hardt v.

Reliance Standard Life Ins. Co., 560 U.S. 242, 253, 130 S. Ct. 2149, 176 L. Ed. 2d 998

(2010) (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 683, 103 S. Ct. 3274, 77 L.

Ed. 2d 938 (1983))). Olympic Steamship fees are an equitable remedy; in that case, we

extended the right of an insured to recoup attorney fees because of the disparity in

bargaining power between an insurance company and its policyholder, which is

substantially different from other commercial contracts. 117 Wn.2d at 52. The extension

of fees in Olympic Steamship was a substantial departure from the American rule that

generally governs attorney's fees. And without the showing of unequal bargaining power

like we had in Olympic Steamship, we should not depart further from the American rule.

There are critical differences between suretyship and insurance that illustrate why

we should not extend equitable fees to surety bonds. Our decision in Olympic Steamship

was based on the disparity of bargaining power between insurers and those seeking

coverage. 117 Wn.2d at 52-53. With casualty insurance, a consumer must generally

accept insurance on a "take it or leave it" basis. In the context of construction

performance bonds, however, the obligee on a performance bond (the owner of a

4
No. 92744-8
Madsen, J., concurring in dissent

construction project) has the power to dictate the terms of the bonds. Therefore, the

disparity between the parties in bargaining power and sophistication in the context of

construction performance bonds is not similar to that found in the insurance context.

Colo. Structures, 161 Wn.2d at 621-22 (Madsen, J., concurring in dissent) ('"Inequities in

bargaining power are largely absent in the surety context because the obligee, not the

surety, usually dictates the bond requirements."' (quoting Masterclean, Inc. v. Star Ins.

Co., 347 S.C. 405, 412, 556 S.E.2d 371 (2001)); Blackfeet Tribe v. Blaze Constr. Inc.,

108 F. Supp. 2d 1122, 1142 (D. Mont. 2000) (finding that the parties were not in

inherently unequal bargaining positions); Cates Construction, Inc. v. Talbot Partners, 21

Cal. 4th 28, 53, 980 P.2d 407, 86 Cal. Rptr. 2d 855 (Cal. 1999) (concluding that

"[p]erformance ... bonds do not reflect the ... unequal bargaining power that [is]

inherent in insurance policies"); Great Am. Ins. Co. v. Gen. Builders, Inc., 113 Nev. 346,

934 P.2d 257 (1997) (no inherent inequality in bargaining power between a performance

bond obligee and a surety); Transamerica Premier Ins. Co. v. Brighton Sch. Dist. 27J,

940 P.2d 348, 353 (Colo. 1997) (admitting that the parties to a suretyship contract are on

"equal footing" when entering into the agreement); Great Am. Ins. Co. v. N Austin Mun.

Util. Dist. No. 1,908 S.W.2d 415,418 (Tex. 1995) (noting that it is the obligee, not the

surety, that controls the form of the bond and the terms of the incorporated contract)).

Further, the public policy rationales that supported an equitable remedy in

Olympic Steamship are absent in the context of performance bonds. In a typical

insurance claim, the insured depends on a prompt payout for the basic necessities of life.

5
No. 92744-8
Madsen, J., concurring in dissent

For a performance bond, on the other hand, "an obligee relies on the surety for additional

security to ensure the fulfillment of a commercial contract." Colo. Structures, 161 Wn.2d

at 623 (Madsen, J., concurring in dissent). When a surety breaches, there is no different

dilemma for the obligee than that posed by the principal's default on the underlying

construction contract. Id. (quoting Cates, 21 Cal. 4th at 55). An obligee also has other

avenues of recourse. An insured is limited to seeking help from its insurer. But in a

surety bond, an obligee has recourse against the principal and the surety. Id. at 624

(Madsen, J., concurring in dissent). Public policy simply does not require the same

equitable remedies to be available for construction performance bonds as those in

individual insurance claims.

As Chief Justice Alexander argued in Colorado Structures, we should be slow to

extend the Olympic Steamship exception to the American Rule, particularly in cases

where the reasons underlying that opinion are not present. 161 Wn.2d at 610 (Alexander,

C.J., concurring/dissenting). Given the purpose and nature of the relationship in a

suretyship agreement, it is inappropriate to extend an equitable exception to the American

rule. By mistakenly believing that Colorado Structures created binding precedent on this

issue, the majority fails to evaluate it fully.

Accordingly, I respectfully dissent.

6
No. 92744-8
M:dsen, J. , con:::urr:ing in dissent

7