Jeffrey K. Markoff v. Puget Sound Energy, Inc.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JEFFREY K. MARKOFF and ALICIA
MARKOFF, individually and as a DIVISION ONE
married couple; EDWARD C. NEWELL
and TROY-LYNN NEWELL, individually No. 77785-8-1
and as a married couple; CHARLES
MEYER and JULIE MEYER, individually PUBLISHED OPINION
and as a married couple; JOEY P.
HAUGEN and MYUNG K. HAUGEN,
individually and as a married couple;
NATHAN A. BUCK, individually;
MICHAEL S. CAMLIN and CAN DACE
M. CAMLIN, individually and as a
married couple; RICHARD MARTELL-
SCOTT, individually; and STEVE
ROBERTS, individually,

Appellants,

v.

PUGET SOUND ENERGY, INC., a
Washington corporation; PILCHUCK
CONTRACTORS, INC., a Washington
corporation; and MICHELS
CORPORATION, a Wisconsin
corporation,
FILED: August 19, 2019
Res•ondents.

DWYER, J. — Nine firefighters responded to a report of a natural gas leak.
Gas from a pipeline ignited, causing an explosion and injuring the firefighters.

The firefighters sued Puget Sound Energy Inc.(PSE) and its contractors,
No. 77785-8-1/2

alleging, among their causes of action, that negligence or recklessness in the

decommissioning of the leaking pipeline was a cause of the explosion. The trial

court granted PSE's motion to dismiss on the basis that the professional rescuer

doctrine barred all of the firefighters' claims. We affirm.

I

On March 9, 2016, the Seattle Fire Department received a 911 telephone

call reporting a natural gas leak on the 8400 block of Greenwood Avenue North

in Seattle. Nine firefighters arrived on the scene at 1:09 a.m. and notified PSE of

the leak at 1:11 a.m. PSE did not take action to shut off the natural gas pipeline

that was the source of the leak until much later. After notifying PSE of the leak's

existence, the firefighters inspected a narrow passageway between 8411 and

8415 Greenwood Avenue North and determined that the gas was escaping from

a threaded coupling along a steel service line attached to the building at the 8411

address. The firefighters were unaware that gas had also escaped into and

underneath this building. As the firefighters continued investigating, an unknown

source ignited the gas at 1:43 a.m., causing an explosion that leveled both

buildings and injured the firefighters.

A subsequent investigation by the Washington Utilities and Transportation

Commission(WUTC)culminated in a report detailing the explosion's causes.

WUTC found that the gas leak and subsequent explosion would not have

occurred but for an improper decommissioning of the gas service line in 2004.

This work had been performed by an independent contractor, Pi!chuck

Contractors Inc. Pilchuck had recorded the line as being cut and capped despite

2
No. 77785-8-1/3

failing to actually cut and cap the line. However, WUTC also determined that the

immediate cause of the leak was external damage to the threaded coupling,

likely the result of individuals storing personal property in (and using the narrow

space) between the two buildings. WUTC's subsequent administrative

proceeding against PSE concluded in a settlement pursuant to which PSE was to

pay a $2.75 million fine, with the contingency that $1.25 million of the fine would

be suspended if PSE completed inspection and remediation of its deactivated

gas lines. There was no appeal from this final agency determination, and WUTC

is not a party to this case.

Not long after, on May 12, 2017, Jeffrey Markoff, one of the injured

firefighters, along with his wife Alicia, sued PSE, Pi!chuck Contractors, and

Michels Corporation, Pilchuck's parent company. The complaint alleged strict

liability under the public utility statute; common law negligence, willfulness, and

strict liability; outrage; infliction of emotional distress; loss of consortium; punitive

damages; and a right to injunctive relief.' Subsequently, Markoff amended his

complaint to add other injured firefighters as plaintiffs and to advocate for a

change in the existing law governing liability to professional rescuers.

PSE moved to dismiss the firefighters' first amended complaint, arguing

that the negligence and intentional tort claims were barred by the professional

rescuer doctrine, that the injunctive relief claim was both subject to the primary

jurisdiction of the WUTC's administrative proceeding and was also moot due to

1 The firefighters, recognizing that Washington law does not allow for the assessment of
punitive damages, nonetheless sought them under Wisconsin law. Michels Corporation is a •
Wisconsin corporation.

3-
No. 77785-8-1/4

PSE's settlement with the WUTC,and that there was no independent cause of

action to assert under the pertinent section of the public utility statute. The trial

court dismissed all of the firefighters' common law, statutory, and strict liability

claims with prejudice, but reserved ruling on the injunctive relief claim to allow for

further briefing.

Applying the professional rescuer doctrine was appropriate, the trial court

reasoned, because the firefighters had been called to the scene to address a gas

leak, and a well-known and foreseeable danger of gas leaks is that the gas may

ignite and explode. The court also accepted PSE's reasoning that the pertinent

section of the public utility statute, RCW 80.04.440, did not create an

independent cause of action or revive causes of action otherwise barred by an

affirmative defense such as the professional rescuer doctrine. The trial court

pointed to the state's workers' compensation fund as an existing system of

accounting for the risk of injury assumed by professional rescuers.

Subsequently, PSE submitted the requested supplemental briefing in

support of its motion to dismiss the firefighters' injunctive relief claim. The

firefighters, however, did not submit supplemental briefing on the issue and

instead moved to voluntarily dismiss the injunctive relief claim without prejudice.

The firefighters' motion for voluntary dismissal was premised on their perception

that the trial court had not, in fact, held a hearing on the injunctive relief issue or

otherwise exercised its discretion to address it. The trial court disagreed,

explaining,

4
No. 77785-8-115

I think it's worth noting that in my opinion I have exercised
discretion on the issue that is noted for a hearing today in front of
me with regard to the injunctive relief.
I heard that first hearing. I read all the briefing, and then I
exercised discretion to have another hearing to delay, to say I need
to do more research, I need the parties to educate me more
through their briefing. .. .
And I needed that in order to go forward. And I didn't have
to. That's the definition of discretion.
I could have said I will decide it. I will let you know in two
weeks. I'm going to do the research. That's my discretion.
I could have said we'll decide it in 90 days, but I want more
briefing. That's what I did.
I could have also just decided it right then that day in
September, but I didn't. I exercised that discretion.
That hearing [on PSE's Motion to Dismiss] had started. In
my view, there's no question about that. There's always shades of
gray. It's nice to think of things in black and white, but the reality is
between when the first brief is filed and when the final decision is
entered, there's a lot of shades of gray [on] when a [CR]41
[motion] can or cannot be filed.
In my view, this case crosses that line because we had a
hearing, there was briefing on it, and I was cued up to make a
decision, and I did make a decision, and I did exercise discretion,
and that was to make the decision at a later date after more briefing
and more education for the Court.

The trial court also gave an alternative ground for ruling in favor of PSE:

I am going to grant Puget Sound the defense's motion on the merits
based on the lack of response and the fact, frankly, that I am
convinced that their position is correct in light of all of the facts and
law that have been presented to me over the course of two
substantive hearings.

Accordingly, the trial court dismissed the firefighters' claim for injunctive

relief with prejudice. The firefighters appeal from the orders of dismissal,

averring that the professional rescuer doctrine should not bar their common law

5
No. 77785-8-1/6

and statutory tort claims and that dismissal without prejudice was the proper

remedy for their injunctive relief claim.2

II

A

A trial court's ruling on a motion to dismiss under CR 12(b)(6) is a

question of law that we review de novo. Cutler v. Phillips Petrol. Co., 124 Wn.2d

749, 755, 881 P.2d 216 (1994). A CR 12(b)(6) motion questions only the legal

sufficiency of the allegations in a pleading, asking whether there is an

insuperable bar to relief. Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735,

742, 565 P.2d 1173(1977). The purpose of CR 12(b)(6) is to weed out

complaints where, even if that which plaintiff alleges is true, the law does not

provide a remedy. McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 101, 233

P.3d 861 (2010).

Under the generous standard of CR 12(b)(6), a complaint survives a

motion to dismiss unless "'it appears beyond doubt that the plaintiff can prove no

set of facts, consistent with the complaint, which would entitle the plaintiff to

relief." Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988)(internal

quotation marks omitted)(quoting Orwick v. City of Seattle, 103 Wn.2d 249, 254,

692 P.2d 793(1984)). The "court may consider hypothetical facts not part of the

formal record." Hoffer, 110 Wn.2d at 420.

B

The general rule in Washington is that a person who is
injured while rescuing another may recover from the party whose

2 The firefighters do not appeal the trial court's ruling that strict liability did not apply.

6
No. 77785-8-1/7

. negligence created the need for rescue. However, because
professional rescuers assume certain risks as part of their
profession, the general rule does not apply. When a professional
rescuer is injured by a known hazard associated with a particular
rescue activity, the rescuer may not recover from the party whose
negligence caused the rescuer's presence at the scene.

Loiland v. State, 1 Wn. App. 2d 861, 862, 407 P.3d 377 (2017), review

denied, 190 Wn.2d 1013(2018).

The professional rescuer doctrine is based on a broad policy of

assumption of risk. Professional rescuers assume certain risks inherent in their

jobs and may not collect damages from those whose negligence brings about

such risks. Maltman v. Sauer, 84 Wn.2d 975, 978, 530 P.2d 254 (1975). A

professional rescuer may not collect damages from a negligent imperiled person

when the "hazard ultimately responsible for causing the [rescuer's] injury is

inherently within the ambit of those dangers which are unique to and generally

associated with the particular rescue activity." Maltman, 84 Wn.2d at 979.

Washington courts broadly apply this doctrine to bar recovery for anyone who is

fully aware of a hazard caused by another's negligence and who voluntarily

confronts the risk in exchange for compensation. Black Indus., Inc. v. Emco

Helicopters, Inc., 19 Wn. App. 697, 699-700, 577 P.2d 610 (1978).

C

The professional rescuer doctrine was first recognized by our Supreme

Court in Maltman, 84 Wn.2d at 979. The court therein also recognized the

existence of an exception to the rule when a professional rescuer is injured by a

"'hidden, unknown,[or]extrahazardous" danger that is not inherently associated

with the particular rescue activity. Maltman, 84 Wn.2d at 978 (quoting Jackson v.

7
No. 77785-8-1/8

Velverav Corp., 82 N.J. Super. 469, 198 A.2d 115, 119 (1964)). Since Maltman,

the court has also recognized an exception to the doctrine that applies when

"negligent or intentional acts of intervening parties not responsible for bringing

the rescuer to the scene" cause the rescuer's injury. Beaupre v. Pierce County,

161 Wn.2d 568, 575, 166 P.3d 712 (2007).

We recently applied the doctrine to bar recovery when a firefighter alleged

that negligence on the part of multiple parties placed him in harm's way. See

Loiland, 1 Wn. App. 2d 861. Therein, Lopez, a driver, lost control of his vehicle

on an icy highway with low visibility. The vehicle rolled onto its side in a ditch. A

Washington State Patrol trooper stopped to assist and called for a tow truck.

However, while awaiting the tow truck's arrival, the trooper observed several

other vehicles slide or stall on the ice. Loiland, 1 Wn. App. 2d at 863. The

trooper determined that the tow truck would be of limited use in the prevailing

conditions and that waiting for one to arrive was dangerous. Hence, the trooper

left the scene with Lopez, but without marking the vehicle to indicate that he had

responded to the accident. Loiland, 1 Wn. App. 2d at 863-64.

Subsequently, Wynn Loiland, a firefighter, arrived on the scene in

response to a 911 call. Loiland, 1 Wn. App. 2d at 864. Unaware that a trooper

had already responded, Loiland had begun marking the abandoned vehicle when

he was struck by a vehicle driven by Perez, who lost control on the ice. Loiland,

1 Wn. App. 2d at 864.

Loiland later filed suit against Lopez and the State, alleging that

negligence on the part of Lopez, Perez, and the State (through the Department of

8
No. 77785-8-1/9

Transportation and the State Patrol) had caused his injuries. Loiland, 1 Wn. App.

2d at 864.

The trial court, invoking the professional rescuer doctrine, granted

summary judgment to Lopez and the State. Loiland, 1 Wn. App. 2d at 864. We

affirmed, reasoning that the claim was premised upon the assertions that the

Department of Transportation was negligent in failing to deice the road, the State

Patrol was negligent in failing to mark the abandoned vehicle, and Lopez was

negligent in driving off the road—all acts or omissions that resulted in Loiland, a

professional rescuer, appearing at the scene. Loiland, 1 Wn. App. 2d at 866.

We held that "where the negligent acts of multiple parties cause the public safety

issue that necessitates the [professional] rescuer's presence, the professional

rescuer doctrine bars recovery from each of these parties." Loiland, 1 Wn. App.

2d at 867.

We also rejected Loiland's assertions that the doctrine could not apply to

his claim because of intervening negligence on the part of the State.

In Beaupre, Sutton fv. Shufelberper, 31 Wn. App. 579, 587,
643 P.2d 920 (1982)], and Ward hi. Toriussen, 52 Wn. App. 280,
287, 758 P.2d 1012 (1988)1, a negligent third party injured a
professional rescuer while the rescuer was responding to a public
safety issue. The intervening negligence was unrelated to the act
that caused the professional to be at the scene. The same is not
true in this case. Neither [Department of Transportation (DOT)] nor
[Washington State Patrol] injured Loiland while he was responding
to a roadside accident. The agencies' alleged negligence occurred
before Loiland responded to the scene. And, as discussed above,
the agencies' failures were not independent of the public safety
issue to which Loiland responded.
Loiland asserts, however, that his claim against DOT is not
based on the agency's failure to deice before the Lopez crash but
on its continuing failure to deice after the Lopez crash. He
contends that DOT had an ongoing duty to deice and its failure to

9
No. 77785-8-1110

deice after the Lopez crash was separate and independent from its
failure to deice before the Lopez crash.
Loiland provides no support for the proposition that ongoing
negligence is the equivalent of independent, intervening
negligence. We reject the assertion that DOT's failure to deice
after the Lopez accident amounts to the independent negligence of
an intervening party.

Loiland, 1 Wn. App. 2d at 869-70 (footnotes omitted). Thus, we give

significance to the distinction between ongoing negligence and intervening

negligence.

Here, the firefighters aver that PSE's negligence created a hidden,

unknown or extrahazardous danger of the type that would bring it within the

ambit of the doctrine's recognized exception. The "hidden" danger, they argue,

was that the firefighters did not know of PSE's and its contractors' negligence

and that gas leaks had previously been reported in the same area, or that gas

was escaping not only into the alley where the firefighters could perceive it but

also into an underground space beneath the 8411 building. Further, they argue

that PSE's alleged negligence in failing to deactivate the line between 1:11 a.m.,

when it was notified of the leak, and 1:43 a.m., when the explosion occurred,

created an additional unforeseeable risk.

The firefighters do not allege facts indicating that they would have

responded differently to the leak than they did had they known of the improper

cutting and capping of the line or the previous reports of gas leaks. Nor do they

allege that they would have responded differently had they known of the pooling

of gas underneath the 8411 building.

10
No. 77785-8-1/11

All of the dangers created by the past negligence of PSE and its

contractors, created by those who misused the narrow space between the

buildings, and of the gas leaking into an underground space, were part of the

same hazard that the firefighters were called to the scene to address: a gas

leak.3 Injury from a fire or explosion is a risk inherent in addressing a natural gas

leak, given that natural gas is known to be volatile and highly explosive. See

New Meadows Holding Co. by Raugust v. Wash. Water Power Co., 102 Wn.2d

495, 501, 687 P.2d 212(1984). The firefighters do not show that the

circumstances of this leak created a "new or unknown risk" of a type not inherent

in the danger of responding to a natural gas leak. Loiland, 1 Wn. App. 2d at 872.

The firefighters next allege that PSE's negligence created a risk that did

not exist at the time of the firefighters' arrival at the scene: the risk that the

escaped gas would build up to dangerous levels due to PSE's failure to

deactivate the line after being notified of the leak. In response, PSE asserts that

this claim is akin to the assertion of the firefighter in Loiland that DOT's

continuing failure to deice the road after the first crash enhanced the risk of

another collision such that the buildup of ice and moisture created a "new or

unknown risk." 1 Wn. App. 2d at 872. That claim failed, PSE points out,

because ongoing negligence does not constitute an intervening act or

"independent negligence." Loiland, 1 Wn. App. 2d at 870. Moreover, the rule at

3 The International Association of Fire Fighters, as amicus curiae, argues that a question
of fact exists as to whether these hazards were hidden, unknown, or extrahazardous, and that the
existence of this fact question precludes dismissal. For the reasons stated, the pleadings do not
support the inference that these dangers were not inherent in any gas leak situation. Thus, no
genuine issue of material fact exists.

11
No. 77785-8-1/12

issue is that "[t]he doctrine does not apply to negligent or intentional acts of

intervening parties not responsible for bringing the rescuer to the scene."

Beaupre, 161 Wn.2d at 575. Here, of course, PSE's negligence was responsible

for bringing the firefighters to the scene.

In support of their argument, the firefighters rely on Kaiser v. Northern

States Power Co., 353 N.W.2d 899(Minn. 1984). Therein, eight firefighters

responded to a gas explosion and notified the gas company. The gas company

did not deactivate the gas line before a second explosion occurred, injuring the

firefighters. Kaiser, 353 N.W.2d at 902. The Minnesota Supreme Court,

determining whether the firefighters' suit against the company was barred, stated

that the professional rescuer doctrine did not apply when a party's active

negligence at the scene "materially enhances the risk or creates a new risk of

harm." Kaiser, 353 N.W.2d at 905. Because there was a question of fact as to

whether the utility's active negligence at the scene had this effect, the court ruled

that denial of the utility's motion for summary judgment was called for. Kaiser,

353 N.W.2d at 906.

This decision provides no comfort to the firefighters. The opinion

recognized only that the professional rescuer doctrine might not apply when a

party's active negligence at the scene materially enhanced the risk that brought

professional rescuers on site. Kaiser, 353 N.W.2d at 905. PSE's negligence

after the firefighters' arrival, as the firefighters allege it to have occurred, was

passive negligence (failing to shut off natural gas in the already-leaking pipe).

There was no new negligent act or omission after the firefighters' arrival; PSE

12
No. 77785-8-1/13

simply allowed the condition that brought the firefighters to the premises to

continue.4

In addition, the Kaiser court declined to apply the professional rescuer

doctrine because it perceived there to be a question of fact as to what, if

anything, the firefighters in that case would have done differently had they known

of the risk of a second explosion from the still-escaping gas. 353 N.W.2d at 905-

06. However, the firefighters herein do not allege that they would have

addressed the situation any differently had they known that PSE would not

deactivate the line within 30 minutes.

The hazards faced by the firefighters, while significant, were inherent in

the risks associated with responding to a natural gas leak. The trial court

correctly applied the professional rescuer doctrine in dismissing all of the

firefighters' common law tort claims.

D

In the alternative, the firefighters argue for an expansion of the law. They

urge that we adopt a new exception to the professional rescuer doctrine

excluding from its ambit rescues resulting from willful, wanton, or reckless

conduct that places a professional rescuer in harm's way. We decline to do so.

The intent of the person whose actions caused the need for rescue has never

4 The law in Minnesota is that "[a] landowner or person in control owes firefighters a duty
'to exercise ordinary care to avoid imperiling [them] by any active conduct." Kaiser, 353 N.W.2d
at 905 (alteration in original)(quoting Mulcrone v. Wagner, 212 Minn. 478, 482,4 N.W.2d 97, 99
(1942)). When such active "misconduct at the fire scene materially enhances the risk or creates
a new risk of harm and causes injury to firefighters," the professional doctrine does not apply.
Kaiser, 353 N.W.2d at 905. We can decide this case without deciding if the law in Washington is
identical.

13
No. 77785-8-1/14

been a relevant inquiry in determining whether a professional rescuer assumed a

risk. Washington courts have not looked to the conduct of a person in creating a

hazard to establish whether the professional rescuer doctrine applies. Rather,

our courts have always analyzed whether the professional rescuer assumed a

risk inherent in the nature of the rescue at issue. Maltman, 84 Wn.2d at 979;

Black Indus., 19 Wn. App. at 699.

The firefighters point to Ballou v. Nelson, 67 Wn. App. 67, 834 P.2d 97

(1992), to support their advocacy for an intent exception. Therein, we held that

the professional rescuer doctrine did not bar police officers from recovering

against two hotel patrons who assaulted them. Ballou, 67 Wn. App. at 70. While

the police officers had been dispatched to detain these patrons, the assault was

an independent act of active misconduct that occurred after the officers' arrival.

Ballou, 67 Wn. App. at 69. Further, the officers did not arrive at the scene to

rescue the patrons but, rather, to restrain them from committing further acts of

assault against others at the hotel. Ballou, 67 Wn. App. at 73. Thus, we ruled,

the professional rescuer doctrine did not apply. This is in sharp contrast to the

situation herein, in which the firefighters were called to the scene to protect

others from danger, and were not injured as a result of independent acts of active

misconduct. Ballou does not militate in favor of the adoption of the new

proposed rule.

The firefighters also point to authority from other states in which an intent

exception is recognized, chiefly a Louisiana Court of Appeals case, Chiniqo v.

Geismar Marine, Inc., 512 So. 2d 487(La. Ct. App. 1987). Therein, a sheriff's

14
No. 77785-8-1/15

deputy responded to a report that a tank truck was leaking unknown fluid onto a

road. Chinicio, 512 So. 2d at 488. The truck did not possess the required

placard designating the substance being transported, and its driver did not inform

the deputy that the fluid was a volatile and toxic chemical. Chinigo, 512 So. 2d at

489. The deputy, experiencing serious side effects of exposure to the chemical,

sued the trucking company, which raised the professional rescuer doctrine as a

defense. Chinicio, 512 So. 2d at 489-90. The court held that the risk confronted

by the deputy, created by improper handling of a hazardous chemical in a

wanton manner, was "extraordinary and one which was beyond the training and

experience of [the deputy] to remedy," precluding application of the professional

rescuer doctrine. Chinigo, 512 So. 2d at 492. This is inapposite to the case

before us for the simple reason that the explosion was not an unanticipated risk

of the gas leak.

Further, to the extent that the Louisiana court's recognition of an exception

was not based on the hidden, unknown, or extrahazardous danger created by the

unknown fluid—a situation already accounted for in our state's law—it was based

on the desire to impose punitive damages. Chinicio, 512 So. 2d at 491. This is

not a concern in Washington. We decline to adopt a new exception to the

professional rescuer doctrine employing an intent component.

Ill

The firefighters next assign error to the trial court's dismissal of their

claims against all three defendants for liability under RCW 80.04.440. The trial

court dismissed these statutory liability claims on the basis that RCW 80.04.440

15
No. 77785-8-1/16

does not create a private cause of action for the firefighters to assert. This

subsection of Washington's public utility statute provides that:

In case any public service company shall do, cause to be done or
permit to be done any act, matter or thing prohibited, forbidden or
declared to be unlawful, or shall omit to do any act, matter or thing
required to be done, either by any law of this state, by this title or by
any order or rule of the commission, such public service company
shall be liable to the persons or corporations affected thereby for all
loss, damage or injury caused thereby or resulting therefrom, and in
case of recovery if the court shall find that such act or omission was
willful, it may, in its discretion, fix a reasonable counsel or attorney's
fee, which shall be taxed and collected as part of the costs in the
case. An action to recover for such loss, damage or injury may be
brought in any court of competent jurisdiction by any person or
corporation.

RCW 80.04.440.

"Significantly, liability under[RCW 80.04.440] is predicated upon a finding

of a violation of law or safety regulation." Zamora v. Mobil Corp., 104 Wn.2d 199,

209, 704 P.2d 584 (1985). Neither party disputes the requirement of a predicate

violation; however, the firefighters aver that the statute creates a private cause of

action separate and independent of their common law claims.

Employing a plain language reading, the statute does nothing more than

preserve causes of action for private claims related to utility misconduct while

adding the potential for recovery of attorney fees by successful claimants.5 It

5 RCW 80.04.440 supports causes of action against "any public service company."
"Public service company" is defined, for purposes of the statute, as "every gas company,
electrical company, telecommunications company, wastewater company, and water company."
RCW 80.04.010(23). In turn, a "[g]as company" is defined inclusively as "every corporation,
company, association, joint stock association, partnership and person, their lessees, trustees or
receiver appointed by any court whatsoever, and every city or town, owning, controlling, operating
or managing any gas plant within this state." RCW 80.04.010(14). Independent contractors
performing maintenance work on behalf of a gas company are not included in this definition.
The firefighters' first amended complaint did not allege that either Pilchuck Contractors or
Michels Corporation was a public service company as would be necessary to bring them within
the ambit of the statute. Instead, it stated that Pilchuck "conducted pipeline maintenance and

16
No. 77785-8-1/17

does not allow for such claims to be asserted free of the limitations to which they

are subject when otherwise asserted. See Fisk v. City of Kirkland, 164 Wn.2d

891, 896, 194 P.3d 984 (2008)(cause of action pursuant to RCW 80.04.440 not

viable in the absence of underlying duty on part of utility); Citoli v. City of Seattle,

115 Wn. App. 459, 479-80, 61 P.3d 1165 (2002)(utility's alleged violation of

regulation requiring minimization of service interruptions did not support RCW

80.04.440 claim due to city ordinance limiting utility's liability).

Hence, a party seeking the benefit of RCW 80.04.440 must demonstrate

that the underlying claim is viable and not subject to an affirmative defense.6

This the firefighters have not done. They assert that the statute's lack of

reference to the professional rescuer doctrine implies that said doctrine does not

apply, ignoring the fact that the statute's enactment predated Maltman by 14

other general contracting business throughout the State on behalf of PSE and others," and that
Michels "is a company incorporated in the State of Wisconsin and bought Pilchuck Contractors in
or around 1999 to conduct business in Washington State."
In their reply brief, the firefighters point to RCW 80.04.010(15), defining "[g]as plant" to
include "all real estate, fixtures and personal property, owned, leased, controlled, used or to be
used for or in connection with the transmission, distribution, sale or furnishing of natural gas, or
the manufacture, transmission, distribution, sale or furnishing of other type gas, for light, heat or
power." They contend that, because Pilchuck was contracted by PSE to maintain the "fixture" of
the pipeline, it was in fact "controlling, operating or managing any gas plant." However, even
taking all of the firefighters' allegations as true, as we must, they do not raise the inference that
Pilchuck was "controlling, operating or managing" a gas plant except on behalf of PSE—as
explicitly stated in the firefighters' first amended complaint. Thus, Pilchuck was and is not a "gas
company" as would be necessary to make it a "public service company" to bring it within the
meaning of the statute.
Because the pleadings did not support an inference that Pilchuck was a public service
company, they in turn do not support the inference that Michels, the parent company of Pilchuck,
could be held liable under the utility statute. Thus, dismissal of the RCW 80.04.440 claim against
Pilchuck and Michels was proper even if the statute did create the firefighters' proposed
independent cause of action.
6 Nowhere in their opening or reply briefs do the firefighters point to the specific WUTC
regulations, the violation of which would give rise to a cause of action under RCW 80.04.440. An
enumeration of these regulations is contained in their first amended complaint. However, to the
extent that the firefighters rely on specific findings of the WUTC to support their cause of action,
they are asserting a claim "involving" an order of the WUTC without serving notice to the same in
contravention of RCW 80.04.420.

17
No. 77785-8-1/18

years. Nothing in the statute's language evinces an intent to render inapplicable

otherwise applicable affirmative defenses. The trial court did not err in

dismissing the firefighters' claims pursuant to ROW 80.04.440.

IV

The trial court gave alternative reasons for dismissal of the firefighters'

injunctive relief claim with prejudice: first, that the firefighters had not responded

to the assertions contained in PSE's motion to dismiss that claim and, second,

that there was no reason to grant a voluntary dismissal without prejudice. The

trial court did not specify the assertion it was adopting in granting PSE's motion

to dismiss, stating at oral argument only that the motion would be granted "on the

merits based on the lack of response and the fact, frankly,[because] I am

convinced that their position is correct in light of all of the facts and law that have

been presented to me over the course of two substantive hearings." We may

affirm a trial court ruling on any ground supported in the record. LaMon v. Butler,

112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).

"One who seeks relief by permanent injunction must show:(1) that he has

a clear legal or equitable right,(2) that he has a well-grounded fear of immediate

invasion of that right, and (3) that the acts complained of are either resulting in, or

will result in, actual and sustained injury to him." Tyler v. Van Aelst, 9 Wn. App.

441, 443, 512 P.2d 760(1973)(citing Port of Seattle v. Int'l Longshoremen's &

Warehousemen's Union, 52 Wn.2d 317, 319, 324 P.2d 1099 (1958)). "The

complainant must make out a prima facie case." Isthmian S. S. Co. v. Nat'l

Marine Eng'rs' Beneficial Ass'n, 41 Wn.2d 106, 118, 247 P.2d 549 (1952). "An

18
No. 77785-8-1/19

injunction will not issue to protect a right not in esse and which may never arise."

State ex rel. Hays v. Wilson, 17 Wn.2d 670, 673, 137 P.2d 105 (1943)(quoting

32 C.J. Iniunctions § 14, at 35(1923)).

The firefighters' first amended complaint gives the following basis for

requesting an injunction:

24. Injunctive Relief. Based on the paragraphs set forth and
alleged above, and in light of their reckless and wanton misconduct,
Defendant PSE should be enjoined under RCW 7.40 et seq. and
Washington law be required to perform a comprehensive inspection
of its Washington State gas pipes, especially abandoned pipes, and
engage in immediate remediation to protect the public from a grave
foreseeable harm.

The "paragraphs set forth and alleged above" asserted rights of action

arising from PSE, Pi!chuck and Michels's alleged negligence. The trial judge

properly dismissed the substantive claims on which the request for injunctive

relief was based. At that point, the firefighters no longer had a right that could be

vindicated or protected by the injunction. In short, an injunction is a remedy, not

an independent cause of action. Dismissal with prejudice was proper.

Affirmed.

WE CONCUR:

U4
-14.diuu2...),
%36'

19