Porter v. Kirkendoll

This opinion was
filed forjecord
FIITE
IN CLERKS OFFICE
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tUPfSUE COURT,SWTE VVASHINGTni
Susan L. Carlson
DATE 2 6 2n'U Supreme Court Clerk
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

JERRY PORTER and KAREN ZIMMER,
NO. 96214-6
husband and wife,
Respondents,
V. EN BANC

PEPPER E. KIRKENDOLL and
CLARICE N. KIRKENDOLL,husband
Filed SEP 2 fi 9nifl
and wife.

Petitioners,

KYLE PETERS AND ANDREA
PETERS, husband and wife; G & J
LOGGING,INC., a Washington
Corporation; MITCH PAYNE; JOHN
ROGER; DANIEL SHEETS, a/k/a
BOONE SHEETS, and JENNIFER
SHEETS, husband and wife; BOONE'S
MECHANICAL CUTTING,,INC., a
Washington Corporation; and JOHN
DOES 1-5,

Defendants.

GORDON McCLOUD,J.—Pepper and Clarice Kirkendoll hired loggers to

harvest their trees. But Pepper Kirkendoll misrepresented the boundaries of his and

Clarice's land, and the loggers harvested trees belonging to the neighbors, Jerry
No. 96214-6

Porter and Karen Zimmer. Porter and Zimmer sued the Kirkendolls and the loggers.

The loggers settled with Porter and Zimmer and assigned to them their indemnity

and contribution claims against the Kirkendolls as part of that settlement. The

remaining parties then filed separate motions for summary judgment. The trial court

dismissed the case, ruling that the settlement released the Kirkendolls from liability

and that Porter and Zimmer had no valid contribution or indemnity claims.

The Court of Appeals reversed, making a series of holdings. It held that the

settlement did not release the Kirkendolls from potential liability for their own tort

of directing the timber trespass. It held that Porter and Zimmer could proceed with

their assigned indemnity claims, but not with their assigned contribution claims.

And it held that Porter and Zimmer are precluded from recovering under the waste

statute because relief is available under the timber trespass statute.

We affirm the appellate court's holdings that the settlement did not release the

Kirkendolls from liability and that Porter and Zimmer are precluded from recovering

under the waste statute. But we reverse the appellate court's holding on the

indemnity and contribution claims.

Factual and Procedural Background

Pepper Eugene Kirkendoll and Clarice Kirkendoll own a parcel oftimberland

for the sole purpose of harvesting timber. Clerk's Papers(CP)at 289. The couple's

land abuts the western edge of a 60-foot-wide easement, and that easement is located

2
No. 96214-6

on land owned by Jerry Porter and Karen Zimmer. CP at 54, 289-91, 313. Within

the easement runs a private access road known as Madison Drive. CP at 289-90.

Given the location of Madison Drive within the easement, a strip of land to the west

of the access road but to the east of the Kirkendolls' land belongs to Porter and

Zimmer; the Kirkendolls do not own all the land west of Madison Drive. CP at 49,

51-52.

Nevertheless, when Pepper Kirkendoll hired G & J Logging Inc. to harvest

timber, CP at 141, he represented that he and Clarice owned all the land west of

Madison Drive, CP at 45, 53. G & J Logging hired Boone's Mechanical Cutting

Inc. to help with the job, CP at 94, 140, and the two companies harvested 51 Douglas

firs located on Porter and Zimmer's land. CP at 5, 9, 140, 314.

Porter and Zimmer sued the Kirkendolls, G & J Logging,' and Boone's

Mechanical Cutting^ for waste under RCW 4.24.630 and for timber trespass under

RCW 64.12.030. CP at 1-3. Specifically, Porter and Zimmer alleged that the

"Defendants intentionally, recklessly or negligently trespassed upon Plaintiffs' real

property . . . and cut trees" and then "yarded, processed, and loaded the felled trees

' Porter and Zimmer also sued the owners and two employees of G & J
Logging. CP at 1-2. We refer to these defendants collectively as the G & J
defendants.

^ Porter and Zimmer also sued the owners of Boone's Mechanical Cutting.
CP at 1-2. We refer to these defendants collectively as the Boone defendants.
3
No. 96214-6

and removed them from the lot." CP at 2. The G & J defendants cross claimed

against the Kirkendolls, arguing that G & J was "without any active fault" and

seeking either contribution or indemnity. CP at 11-13. The Boone defendants cross

claimed against the Kirkendolls and the G & J defendants, seeking "equitable or

implied in fact indemnity." CP at 586-88.

Porter and Zimmer settled with the G & J and Boone defendants for $125,000.

CP at 164, 225.^ As part ofthe settlement, the G & J and Boone defendants assigned

to Porter and Zimmer their contribution and indemnity cross claims against the

Kirkendolls. Id.

Porter and Zimmer then moved for partial summary judgment on three issues.

CP at 27-33. First, Porter and Zimmer argued that the Kirkendolls were required to

indemnify the G & J and Boone defendants as a matter of law. CP at 30. Second,

Porter and Zimmer argued that the case should proceed to trial under the waste

statute rather than under the timber trespass statute. CP at 30-32. Third, Porter and

Zimmer argued that the Kirkendolls were liable for treble damages as a matter of

law. CP at 32-33. Porter and Zimmer claimed that "[ojnly the amount of damages

remain[ed] for trial." CP at 27.

^ As part of the settlement, the Boone defendants also agreed to drop their
cross claim against the G & J defendants. CP at 164.
No. 96214-6

The Kirkendolls opposed Porter and Zimmer's motion and filed their own

motion for summary judgment. CP at 72-88. In their motion,the Kirkendolls argued

that the G & J and Boone defendants had no contribution or indemnity claims to

assign because they failed to follow the settlement procedures outlined in the tort

reform act,"^ which they believed covered the torts at issue here, and which requires

a reasonableness hearing before settlement in some situations. CP at 81-85. The

Kirkendolls also argued that the settlement released them from liability under

principles of vicarious liability. CP at 85-87.

Adopting the Kirkendolls' position "in total," the trial court granted their

motion for summary judgment and dismissed the case. Verbatim Report of

Proceedings(VRP)(Dec. 2, 2016) at 38-40; see also CP at 233-36. The trial court

did not decide whether the G & J and Boone defendants would have had valid

contribution or indemnity claims if they had followed what the trial court perceived

as the correct settlement procedures.

Porter and Zimmer appealed. CP at 276. The Court of Appeals affirmed in

part and reversed in part. Porter v. Kirkendoll, 5 Wn. App. 2d 686, 690, 421 P.3d

1036(2018). That court held that the settlement did not release the Kirkendolls from

liability under principles of vicarious liability. Id. at 699-700. It also held that the

In this opinion, we refer to chapter 4.22 RCW as the tort reform act.
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No. 96214-6

tort reform act does not apply to timber trespass because it is an intentional tort, id.

at 698 (citing Birchler v. Castello Land Co., 133 Wn.2d 106, 115, 942 P.2d 968

(1997)), and therefore Porter and Zimmer could proceed with their assigned

indemnity claims, id. at 700-01, but not with their assigned contribution claims, id.

at 703-04. Finally, the court held that Porter and Zimmer were precluded from

recovering under the waste statute because relief is available under the timber

trespass statute. Id. at 702-03. The court remanded the case to the trial court for

further proceedings on Porter and Zimmer's timber trespass and indemnity claims.

Id. at 706-07.^

The Kirkendolls petitioned this court for review, renewing their argument that

the settlement agreement released them from liability under principles of vicarious

liability. They also argued that they are not liable for indemnity as a matter of law.

In their answer.Porter and Zimmer sought review ofa third issue; whether the timber

trespass statute precludes them from recovering under the waste statute. We granted

review of both the petition and the cross petition without limiting the issues. Porter

V. Kirkendoll, 192 Wn.2d 1009(2019).

^ The Court of Appeals also reversed the trial court's decision to exclude
expert testimony. Porter, 5 Wn. App. 2d at 705-06. That issue is not before us.
6
No. 96214-6

Standard of Review

We review summary judgment rulings de novo. Pendergrast v. Matichuk,

186 Wn.2d 556, 563-64, 379 P.3d 96 (2016) (citing Becerra Becerra v. Expert

Janitorial, LLC, 181 Wn.2d 186, 194, 332 P.3d 415 (2014)). We also review the

meaning of a statute de novo. Dep't ofEcology v. Campbell & Gwinn, LLC, 146

Wn.2d 1, 9, 43 P.3d 4 (2002). When reviewing summary judgment rulings, we

"consider 'facts and reasonable inferences from the facts . . . in the light most

favorable to the nonmoving party.'" Harper v. Dep 't ofCorr., 192 Wn.2d 328, 340,

429 P.3d 1071 (2018)(alteration in original)(quoting Hertog v. City ofSeattle, 138

Wn.2d 265, 275, 979 P.2d 400 (1999)). We will affirm a "grant [of] summary

judgment when 'there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law.'" Id. (quoting Hertog, 138 Wn.2d at 275).

Analysis

I. The settlement did not release the Kirkendolls from liability

The Kirkendolls argue that this is a case of vicarious liability, with Pepper

Kirkendoll acting as principal and the loggers acting as his agents. Pepper E.

Kirkendoll's Mot. for Discr. Review (Pet. for Review)at 5-8. The Kirkendolls claim

that by settling with the loggers (allegedly Pepper's agents). Porter and Zimmer

released the Kirkendolls from liability. Id. at 8-11. The trial court agreed with this

argument and granted the Kirkendolls' motion for summary judgment. VRP (Dec.

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No. 96214-6

2, 2016) at 38-40. But this is not a case of vicarious liability; Porter and Zimmer

allege that the Kirkendolls are directly, not vicariously, liable. CP at 1-3. The Court

of Appeals reversed the trial court partly for this reason. Porter, 5 Wn. App. 2d at

699-700, and we affirm.

"In contrast to direct liability, which is liability for breach of one's own duty

of care, vicarious liability is liability for the breach of someone else's duty of care."

16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law

And Practice § 4:1, at 178-79(4th ed. 2013). A principal may be vicariously liable

"as a matter ofpublic policy to ensure that the plaintiff has the maximum opportunity

to be fully compensated." Glover v. Tacoma Gen. Hosp., 98 Wn.2d 708, 723, 658

P.2d 1230 (1983), abrogated on other grounds by Crown Controls, Inc. v. Smiley,

110 Wn.2d 695, 756 P.2d 717 (1988). But that public policy is "inapplicable when

a plaintiff has accepted a release from the primarily liable tortfeasor who was

financially capable of making him whole." Vanderpool v. Grange Ins. Ass'n, 110

Wn.2d 483, 487, 756 P.2d 111 (1988). "When ... a plaintiff settles with a solvent

agent from whom he could have received full compensation, the very foundation of

the principal's liability is undermined." Id. In at least some situations, then, a

plaintiff releases a vicariously liable principal by settling with a solvent agent.

Glover, 98 Wn.2d at lH-Ti.
No. 96214-6

But a plaintiff does not release a directly liable party by settling with another

directly liable party. In Glover, the plaintiff alleged that a hospital was both directly

liable for breaching its "duty of care to the patient" and "vicariously liable for the

negligent acts of its agents." Id. at 710. The plaintiff and the hospital's agents

settled, id., and this court held that the settlement with the solvent agents released

the hospital from vicarious liability, id. at 718-24. But the court also held that the

settlement did not release the hospital from direct liability, id. at 722-23, and

remanded for trial on that issue, id. at 709. Accord Seattle W. Indus., Inc. v. David

A. Mowat Co., 110 Wn.2d 1, 5, 750 P.2d 245 (1988)(noting that the settlement in

Glover relieved the hospital of vicarious but not direct liability).

This case involves direct, not vicarious, liability. Porter and Zimmer allege

that Pepper Kirkendoll is directly liable for breach of his own duty of care. CP at

2-3; Porter & Zimmer's Answer to Pet. for Review at 12 ("This case was never a

vicarious liability case."). In his deposition. Pepper Kirkendoll acknowledged that

he represented to G & J Logging that he and Clarice Kirkendoll owned all the land

west of Madison Drive. CP at 45, 53. A person who directs or advises another to

commit a timber trespass is liable for his or her own "culpable misfeasance."

Ventoza v. Anderson, 14 Wn. App. 882, 896, 545 P.2d 1219 (1976); see also Hill v.

Cox, 110 Wn. App. 394, 404, 41 P.3d 495 (2002) (upholding liability of the

individual who directed loggers to cut the trees but did not cut the trees himself). As

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No. 96214-6

such, Porter and Zimmer did not release the Kirkendolls from liability by settling

with the G & J and Boone defendants, and we affirm the Court of Appeals on this

point.^

11. Porter and Zimmer have no right to indemnity, but they may have a right to
contribution

In their motion for partial summary judgment. Porter and Zimmer argued that

the Kirkendolls are required to indemnify the G & J and Boone Defendants as a

matter of law. CP at 30.^ Porter and Zimmer sought indemnification under two

separate doctrines: (1) the common law doctrine of indemnification for passive

tortfeasors and(2)the doctrine of equitable indemnification, otherwise known as the

ABC Rule. CP at 591-92.

In response, the Kirkendolls argued that timber trespass is a strict liability tort

and that the tort reform act, which applies to strict liability torts but not to intentional

torts, abolished the common law right of indemnity. CP at 81, 83. The Kirkendolls

® The Court of Appeals also held that the loggers were not Pepper Kirkendoll's
agents. Porter, 5 Wn. App.2d at 699. Ifthe loggers were Pepper Kirkendoll's agents, and
if this were a case of vicarious liability, then the settlement may have released Pepper
Kirkendoll. But this is not a case of vicarious liability. Pepper Kirkendoll is potentially
directly liable for his own tort—directing a timber trespass—regardless of whether the
loggers were his agents. It is therefore unnecessary for us to reach the agency issue.

^ Plaintiffs Porter and Zimmer, not the G & J and Boone defendants, make this
argument because the loggers assigned their indemnity claims to Porter and Zimmer as part
of the settlement agreement. CP at 164, 225.
10
No. 96214-6

also argued that Porter and Zimmer could not recover under the doctrine ofequitable

indemnification. CP at 202-03.

The trial court ruled in favor ofthe Kirkendolls and dismissed the case. VRP

(Dec. 2,2016) at 39;see also CP at 233-36. The Court of Appeals reversed. Porter,

5 Wn. App. 2d at 700-02. In doing so, the Court of Appeals collapsed the two

separate doctrines of indemnification into one and remanded because "[a] genuine

issue remained as to whether the Loggers were without personal fault." Id. The

Court of Appeals also rejected the Kirkendolls' renewed argument that timber

trespass is a strict liability tort. Id. at 698; see also Resp'ts' Br. at 11-12(Wash. Ct.

App. No. 49819-7-II (2017))(arguing that timber trespass is a strict liability tort).

We reverse. Porter and Zimmer cannot recover under either the common law

doctrine of indemnification for passive tortfeasors or the doctrine of equitable

indenmification.

a. Common Law Doctrine of Indemnification for Passive Tortfeasors

If the doctrine of common law indemnification applies here, the Kirkendolls

might be liable for what the loggers paid in settlement. Rufener v. Scott, 46 Wn.2d

240, 242-43, 280 P.2d 253 (1955). At common law, courts did not allow tortfeasors

to seek contribution from each other;"a tortfeasor who paid an entire liability could

not seek contribution from another tortfeasor even where that other tortfeasor paid

nothing to the injured party." Kottler v. State, 136 Wn.2d 437, 441, 963 P.2d 834
11
No. 96214-6

(1998)(citing Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 292, 840 P.2d 860

(1992); Wenatchee Wenoka Growers Ass'n v. Krack Corp., 89 Wn.2d 847, 850, 576

P.2d 388 (1978)). The paying tortfeasor could, however, argue that he or she was a

"passive" tortfeasor—i.e., not at fault—and therefore should be indemnified by the

primarily guilty, "active" tortfeasor. Rufener, 46 Wn.2d at 242-43; see also Cent.

Wash. Refrigeration, Inc. v. Barbee, 133 Wn.2d 509, 513 n.3, 946 P.2d 760 (1997);

16 DeWolf & Allen,supra,§ 13:31, at 549. This form of indemnity was referred

to as "common law indemnity,""a recognized limited exception to the general rule"

barring contribution. Weston v. New Bethel Missionary Baptist Church, 23 Wn.

App. 747, 751-52, 598 P.2d 411 (1978).

The tort reform act "abolished" "[t]he common law right of indemnity

between active and passive tort feasors" and substituted a statutory right of

contribution. RCW 4.22.040(3); see also Johnson v. Cont'l W., Inc., 99 Wn.2d 555,

558, 663 P.2d 482 (1983). Although the tort reform act says that it "abolished"

common law indemnity, subsequent case law makes clear that the common law right

of indemnity remains available when the statutory right of contribution is

unavailable. Johnson, 99 Wn.2d at 560 ("[I]t is not logical to assume it was the

Legislature's intent that one would be denied both the right of contribution and a

common law right of indemnity."); Sabey v. Howard Johnson & Co., 101 Wn. App.

575, 590-91, 5 P.3d 730(2000)("The Tort Reform Act. . . abolishes common law

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No. 96214-6

indemnity rights . . . only between joint tortfeasors with a right of contribution.").

Thus, Porter and Zimmer have a common law right of indemnity only if the tort

reform act does not provide them with a statutory right of contribution.

But whether Porter and Zimmer have a statutory right of contribution depends

in turn on whether timber trespass is an intentional tort or a strict liability tort. As

to intentional torts, the tort reform act does not provide a right ofcontribution. Welch

V. Southland Corp., 134 Wn.2d 629, 634, 952 P.2d 162 (1998); see also RCW

4.22.015 (omitting intentional torts from the definition of fault for purposes of the

tort reform act); Price v. Kitsap Transit, 125 Wn.2d 456, 464, 886 P.2d 556 (1994)

(noting that "intentional torts are part of a wholly different legal realm and are

inapposite to the determination of fault" under the tort reform act). As to strict

liability torts, it does. RCW 4.22.015.

We begin with the language of the timber trespass statutes. Campbell &

Gwinn, 146 Wn.2d at 9-10. Those statutes provide for liability without any showing

of a culpable, negligent, or any other mental state. RCW 64.12.030,.040. A person

is liable for treble damages if he or she "cut[s] down, girdle[s], or otherwise injure[s],

or carr[ies] off any tree . . . ,timber, or shrub on the land of another person." RCW

64.12.030. However, a defendant can avoid treble damages if he or she proves that

the trespass was "casual or involuntary" or done with "probable cause to believe that

the land on which such trespass was committed was his or her own." RCW

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No. 96214-6

64.12.040; see also Jongewardv. BNSFRy. Co., 174 Wn.2d 586, 594, 278 P.3d 157

(2012) (explaining that the burden is on the defendant to prove these mitigating

factors). But even if the defendant can prove this, he or she is still liable "for single

damages." RCW 64.12.040.

This shows that the legislature made timber trespass a strict liability tort

(despite its nominal similarity to trespass, which has historically been considered an

intentional tort). "Strict liability" "does not depend on proof of negligence or intent

to do harm." BLACK'S Law Dictionary 1099 (11th ed. 2019). It "is based instead

on a duty to compensate the harms proximately caused by the activity or behavior

subject to the liability rule." Id. Liability under the timber trespass statute does not

depend on proof of negligence or intent to do harm. True, intent to do harm affects

the amount of available damages under the timber trespass statute. RCW 64.12.030,

.040; Birchler, 133 Wn.2d at 110(explaining that treble damages are available under

the timber trespass statute "when the trespass is 'willful'"); Zellmer v. Zellmer, 164

Wn.2d 147, 155 n.2, 188 P.3d 497 (2008)(explaining that "willful" means "actual

intent to harm"). But intent to do harm does not affect liability. Even if a defendant

proves that the trespass was not willful but was instead "casual or involuntary" or

done with "probable cause to believe that the land on which such trespass was

committed was his or her own," the defendant is still liable for ordinary damages.

RCW 64.12.040.

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No. 96214-6

Neither does proof of negligence affect liability. As this court noted in

Jongeward, a person is liable for damages under the timber trespass statute even if

the trespass was involuntary or accidental. 174 Wn.2d at 597 n.9, 604 n.l4. For

example, a person would be liable under the statute for the following involuntary

and accidental timber trespass:

A, while driving his automobile along the street in the exercise of due
care, is suddenly overcome by a paralytic stroke, which he had no
reason to anticipate. He loses control ofthe automobile and falls across
the steering wheel, thereby turning the car so that it runs [into] and
damages B's [trees].

Cf. Restatement(Second)of Torts § 166 & cmt. b, illus. 2(Am.LawInst. 1965)

(concluding that the driver would not be liable under these circumstances for the

intentional tort of trespass).

To be sure, we have sometimes associated timber trespass with trespass, an

intentional tort. Jongeward, 174 Wn.2d at 597 n.9 (noting that "the timber trespass

sounds in tort and trespass is an intentional tort" (citing Birchler, 133 Wn.2d at

115)); Broughton Lumber Co. v. BNSFRy. Co., 174 Wn.2d 619, 630 n.9, 278 P.3d

173 (2012)(companion case to Jongeward with same footnote). At the same time,

we have been careful to keep the two torts separate. Jongeward, 174 Wn.2d at 605

n.l5 ("Although our analysis ofthe statutory term 'trespass' is necessarily informed

by the common law, we decline to conflate the two remedies."); Birchler, 133 Wn.2d

at 117 n.5 (noting differences between timber trespass and property trespass). The
15
No. 96214-6

two torts are related, particularly when the timber trespass is willful under RCW

64.12.030 or committed with a reasonable but mistaken belief of land ownership, a

mitigating circumstance under RCW 64.12.040.^ But by imposing liability for

nonnegligent, involuntary, and accidental acts, the timber trespass statute goes

further than the common law intentional tort of trespass. Under the common law

tort, the driver in the above example would not be liable for trespass. Restatement

(Second)of Torts § 166 & cmt. b, illus. 2; see also Hughes v. King County, 42

Wn. App. 776, 780, 714 P.2d 316 (1986)(noting that "[IJiability for trespass exists

only when there is an intentional or negligent intrusion ..."(emphasis added)(citing

Restatement(Second) of Torts §§ 158, 165, 166)). But the driver would be

liable for the statutory tort of timber trespass. Jongeward, 174 Wn.2d at 597 n.9

(explaining that involuntary and accidental acts fall within the scope of the timber

trespass statute).^

Although we have associated timber trespass with the intentional tort of

trespass, we have never had a reason—until now—^to decide whether timber trespass

^ Cf. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA,559 U.S. 573, 583,
130 S. Ct. 1605, 176 L. Ed. 2d 519(2010)(noting that the "intentional tort of trespass can
be committed despite the actor's mistaken belief that she has a legal right to enter the
property"(citing Restatement(Second)of Torts § 164 & cmt. e)).

^ Oregon has a timber trespass statute with similar language, and we find the Oregon
Court of Appeals' explanation of that statute's operation persuasive. See Wyatt v. Sweitz,
146 Or. App. 723, 728-31, 934 P.2d 544 (1997)(holding that Oregon's timber trespass
statute "encompasses nonnegligent, nonvolitional trespass").
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No. 96214-6

itself is an intentional tort. Today we hold that it is not. In doing so, we do not

overrule Jongeward, Broughton, or Birchler. In Birchler, we noted that the parties

conceded and the jury found intentional conduct, which "is required before

emotional distress damages may be awarded under RCW 64.12.030." Birchler, 133

Wn.2d at 117 n.5. This comment reveals that we were well aware that a timber

trespass is not always intentional. And in the companion cases of Jongeward and

Broughton, we held that the timber trespass statute applies "only to direct acts

causing immediate injuries." Jongeward, 174 Wn.2d at 606-07; Broughton, 174

Wn.2d at 640. The statute does not apply, we held, to "indirect acts or culpable

omissions causing collateral damage," such as an out-of-control fire. Jongeward,

174 Wn.2d at 606-07; Broughton, 174 Wn.2d at 640. But we were careful to note

that "[o]ur holding does not preclude recovery for involuntary trespass, only for

indirect trespass causing consequential or collateral injury." Jongeward, 174 Wn.2d

at 604 n.l4. Thus, involuntarily driving a car into a tree and causing immediate

injuries to that tree is conduct that fits neatly into the timber trespass statute as

interpreted in Jongeward and Broughton.

In sum, liability under the timber trespass statute imposes a duty to

compensate all harms proximately caused by acts that injure trees—^regardless of

proof of negligence or intent to do harm. See 16 DeWolf & Allen,supra, §3:10,

at 138-44 (placing timber trespass in chapter about strict liability). We therefore

17
No. 96214-6

hold that the timber trespass statute subjects a person to strict tort liability. And

because the tort reform act explicitly applies to "acts or omissions . . . that subject a

person to strict tort liability," RCW 4.22.015, Porter and Zimmer have a statutory

right of contribution. Because they have a statutory right of contribution, they have

no common law right to indemnity as a matter oflaw. RCW 4.22.040(3).

In briefing in both the trial court and the Court of Appeals, both parties

correctly recognized that if the tort reform act applies, then the issue is whether

Porter and Zimmer may seek contribution, not indemnity. E.g., Br. of Appellants at

27-30 (Wash. Ct. App. No. 49819-7-II (2017)); Resp'ts' Br. at 27(Wash. Ct. App.

No. 49819-7-II (2017)). The trial court appears to have dismissed Porter and

Zimmer's assigned contribution claims, despite recognizing that the tort reform act

applies, because the parties to the settlement failed to hold a reasonableness hearing

before settling. VRP (Dec. 2, 2016) at 38-40. RCW 4.22.060. The Court

of Appeals affirmed the trial court but on different grounds, incorrectly holding that

the tort reform act does not apply because timber trespass is an intentional tort.

Porter, 5 Wn. App. 2d at 703-04. The Court of Appeals did not consider whether

the trial court erred in dismissing the claims for failure to hold a reasonableness

hearing. We therefore remand the case to the Court of Appeals to consider that

question. RAP 13.7(b).

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No. 96214-6

b. Equitable Indemnification

The doctrine of equitable indemnification, otherwise known as the ABC Rule,

serves as an exception to the "American Rule," which bars liability for attorney fees.

L.K. Operating, LLC v. Collection Grp., LLC, 181 Wn.2d 117, 123-24, 330 P.3d 190

(2014); 16 DeWolf & Allen, supra, § 6:24, at 306-07. Unlike common law

indemnification, the tort reform act says nothing about the doctrine of equitable

indemnification. See generally, ch. 4.22 ROW. Under the doctrine,'"where the acts

or omissions of a party to an agreement or event have exposed one . . . to suit by

persons not connected with the initial transaction or event,'" the exposed party may

be entitled to attorney fees. Blueberry Place Homeowners Ass'n v. Northward

Homes, Inc., 126 Wn. App. 352, 358, 110 P.3d 1145 (2005) {(ydoLmg Armstrong

Constr. Co. v. Thomson,64 Wn.2d 191, 195, 390 P.2d 976 (1964)). The doctrine is

referred to as the ABC Rule because of its three elements: (1) A acts wrongfully

toward B,(2)that wrongful act "exposes or involves B in litigation with C,"and(3)

"C was not connected with" A's "wrongful act . . . toward B." Manning v.

Loidhamer, 13 Wn. App. 766, 769, 538 P.2d 136 (1975).

However,"a party may not recover attorney fees under the theory of equitable

indemnity if, in addition to the wrongful act or omission of A,there are other reasons

why B became involved in litigation with C." Tradewell Grp., Inc. v. Mavis, 71 Wn.

App. 120, 128, 857 P.2d 1053 (1993). "[T]he critical inquiry under [prong two] of

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equitable indemnity is whether, apart from A's actions, B's own conduct caused it

to be 'exposed' or 'involved' in litigation with C." Id. at 129. "The analysis does

not turn on whether the third party actually prevailed in its claims against 'A.'" Id.

If it did,"every defendant found not negligent could recover attorney's fees against

another defendant who was found negligent." Manning, 13 Wn. App. at 774.

Here,the Court of Appeals remanded Porter and Zimmer's claim for equitable

indemnity for further proceedings because "[a] genuine issue remained as to whether

the Loggers were without personal fault." Porter, 5 Wn. App. 2d at 700-02. But

that is not the critical inquiry; if it were, every faultless defendant would be entitled

to attorney fees from another, at-fault defendant. Manning, 13 Wn. App. at 774.

The critical inquiry is whether the loggers' own conduct caused them "to be

'exposed' or 'involved' in litigation" with Porter and Zimmer. Tradeweli Grp., 71

Wn. App. at 129. And the answer to that inquiry is a resounding yes. It is undisputed

that the loggers cut 51 Douglas firs located on Porter and Zimmer's land. This

cutting caused the loggers to be exposed to strict liability under the timber trespass

statute and involved in litigation with Porter and Zimmer,regardless of whether they

could ultimately pass fault to the Kirkendolls.

We therefore reverse the Court of Appeals and hold that Porter and Zimmer

cannot recover under the doctrine of equitable indemnification as a matter of law.

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III. Porter and Zimmer are precluded from recovering under the waste statute
because relief is available under the timber trespass statute

In addition to their timber trespass claim, Porter and Zimmer seek relief under

the waste statute, RCW 4.24.630. That statute provides more expansive remedies

than the timber trespass statute; in addition to treble damages,the injured party may

recover "reasonable costs, including but not limited to investigative costs and

reasonable attorneys' fees and other litigation-related costs." RCW 4.24.630(1).

However,the waste statute explicitly states that it "does not apply in any case where

liability for damages is provided under RCW 64.12.030," the timber trespass statute.

RCW 4.24.630(2). The Court of Appeals relied on that provision to hold that Porter

and Zimmer could not recover under the waste statute. Porter, 5 Wn. App. 2d at

702-03. We affirm.

When interpreting a statute, this court strives "to ascertain and carry out the

[IJegislature's intent." Campbell & Gwinn, 146 Wn.2d at 9. If the legislature's

intent is clear from the statute's plain meaning, then the court "must give effect to

that plain meaning." Id. at 9-10. "Whenever possible, statutes are to be construed

so '"no clause, sentence or word shall be superfluous, void, or insignificant.'""

HomeStreet, Inc. v. Dep't ofRevenue, 166 Wn.2d 444, 452, 210 P.3d 297 (2009)

(quoting Kasper v. City of Edmonds, 69 Wn.2d 799, 804, 420 P.2d 346 (1966)

(quoting Groves v. Meyers,35 Wn.2d 403,407,213 P.2d 483(1950))). But the court

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No. 96214-6

"must not add words where the legislature has chosen not to include them." Rest.

Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003).

When ascertaining a statute's plain meaning, we examine "the statute in which

the provision at issue is found, as well as related statutes or other provisions of the

same act in which the provision is found." Campbell & Gwinn, 146 Wn.2d at 10.

"[I]f, after this inquiry, the statute remains susceptible to more than one reasonable

meaning, the statute is ambiguous and it is appropriate to resort to aids to

construction, including legislative history." Id. at 12(citing Cockle v. Dep't ofLabor

& Indus., 142 Wn.2d 801, 808, 16 P.3d 583(2001); Timberline Air Serv., Inc. v. Bell

Helicopter-Textron, Inc., 125 Wn.2d 305, 312, 884 P.2d 920 (1994)). Ultimately,

the court must "harmonize[]" "[r]elated statutory provisions . . . to effectuate a

consistent statutory scheme that maintains the integrity of the respective statute."

Koenig v. City ofDes Moines, 158 Wn.2d 173, 184, 142 P.3d 162 (2006)(citing

State V. Chapman, 140 Wn.2d 436, 448, 998 P.2d 282(2000)).

The waste statute reads, in relevant part.

Every person who goes onto the land of another and who removes
timber, crops, minerals, or other similar valuable property from the
land, or wrongfully causes waste or injury to the land, or wrongfully
injures personal property or improvements to real estate on the land, is
liable to the injured party for treble the amount of the damages caused
by the removal, waste, or injury.... In addition, the person is liable for
reimbursing the injured party for the party's reasonable costs, including
but not limited to investigative costs and reasonable attorneys' fees and
other litigation-related costs.

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No. 96214-6

RCW 4.24.630(1). The statute is disjunctive: a person is liable if he or she(1)"goes

onto the land of another and . . . removes timber, crops, minerals, or other similar

valuable property from the land,"(2)"wrongfully causes waste or injury to the land,"

or (3)"wrongfully injures personal property or improvements to real estate on the

land." Id. The first ground for relief is also disjunctive: a person is liable if he or

she "removes timber, crops, minerals, or other similar valuable property from the

land." Id. (emphasis added). Thus, the statute imposes liability for treble damages

and reasonable costs, including attorney fees, on "[ejvery person who goes onto the

land of another and who removes timber . . . from the land." Id.

As discussed above, the timber trespass statute reads, in relevant part.

Whenever any person shall cut down, girdle, or otherwise injure, or
carry off any tree,... timber, or shrub on the land ofanother person,. . .
without lawful authority,. . . any judgment for the plaintiff shall be for
treble the amount of damages claimed or assessed.

RCW 64.12.030. This statute is also disjunctive and imposes liability for treble

damages on "any person [who] . . . carr[ies] off any . . . timber . . . on the land of

another person." Id. We have explained that "carry off means '"to remove to a

distance.'" Jongeward, 174 Wn.2d at 598 (quoting An American Dictionary of

THE English Language 177 (1853)). Thus, the timber trespass statutes impose

liability on "any person [who]. . . [removes to a distance] any . . . timber ... on the

land of another person." RCW 64.12.030.

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No. 96214-6

These portions of the two statutes are redundant. The waste statute imposes

liability on every person who removes timber from the land of another, and the

timber trespass statute imposes liability on any person who removes to a distance

any timber on the land of another person. The defendants here are therefore

potentially liable to Porter and Zimmer under both RCW 4.24.630(1) and RCW

64.12.030. But since the timber trespass statute applies, the plain language of the

waste statute compels the conclusion that the waste statute does not. RCW

4.24.630(2)(stating that the waste statute "does not apply in any case where liability

for damages is provided under RCW 64.12.030").'°

Porter and Zimmer argue that if the waste statute does not apply, then that

statute's "removes timber" language is rendered meaningless. Suppl. Br. of Resp'ts

Porter & Zimmer at 12-13. They note that "[i]n every 'removes timber' claim under

the waste statute, liability for damages will also be provided under the timber

trespass statute, triggering the [waste statute's] exception." Id. at 13. Porter and

Zimmer argue that this court should avoid such a result and should instead

harmonize the waste and timber trespass statutes. Id. at 17-18. They claim that this

court can harmonize the statutes by interpreting the waste statute's exception

'° Since the sole issue in this case involves timber trespass, we need not deeide how
RCW 4.24.630 and RCW 64.12.030 would interact in "a dispute over comprehensive
property damage that includes damage to property and removal of timber." See Gunn v.
Riely, 185 Wn. App. 517, 525 n.6, 344 P.3d 1225 (2015).
24
No. 96214-6

"narrowly" to allow them to recover that statute's additional remedies. Id. at 17.

This narrow interpretation would allow them to recover both treble damages under

the timber trespass statute and "reasonable costs, including but not limited to

investigative costs and reasonable attorneys' fees and other litigation-related costs"

under the waste statute. Id. at 11.

But Porter and Zimmer's proposed solution is incompatible with the

legislature's clear intent. The legislature explicitly stated that the waste statue '^does

not apply in any case where liability for damages is provided under RCW

64.12.030," the timber trespass statute. RCW 4.24.630(2)(emphasis added); see

also Gunn, 185 Wn. App. at 525. Porter and Zimmer ask this court to ignore the

legislature's clear directive so as not to violate the court's own tool of statutory

construction to avoid rendering any clause superfluous "[wjhenever possible."

HomeStreet, 166 Wn.2d at 452. But to do so, we would have to violate a different

tool of statutory construction: we would have to add words where the legislature has

chosen not to include them. We would have to add an exception to the waste

statute's clear language: "[t]his section does not apply in any case where liability for

damages is provided under RCW 64.12.030, except the injured party may still

recover reasonable costs under this section.'''' But that is not what the statute says.

And nothing in the legislative history suggests that this was the legislature's desired

result.

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No. 96214-6

Porter and Zimmer cannot overcome the waste statute's plain language. They

are explicitly precluded from recovering under that statute if liability for damages is

available under the timber trespass statute. The timber trespass statute makes

unlawful the cutting down and carrying off of any tree or timber of another person.

Porter and Zimmer allege that the "Defendants . . . trespassed upon Plaintiffs' real

property . . . and cut trees" and then "yarded, processed, and loaded the felled trees

and removed them from the lot." CP at 2. Clearly,the timber trespass statute applies

to the allegations ofthis case. We therefore affirm the Court of Appeals and adhere

to the waste statute's explicit exception, even though doing so renders one phrase of

the waste statute (i.e., "removes timber"), in one of the statute's three alternative

grounds for relief, redundant here.

Conclusion

In sum, we hold that the settlement between Porter, Zimmer, and the loggers

did not release Pepper and Clarice Kirkendoll from liability. The Kirkendolls remain

potentially liable for directing a timber trespass, and this is true regardless of whether

the loggers were agents of the Kirkendolls. We also hold that Porter and Zimmer

cannot recover under either the doctrine of common law indemnification or the

doctrine of equitable indemnification. The tort reform act replaced common law

indemnity with a right of contribution for torts that subject a person to strict tort

liability, and as the Kirkendolls argued in the courts below, the timber trespass
26
No. 96214-6

statute subjects a person to strict tort liability. And Porter and Zimmer cannot

recover under the doctrine of equitable indemnification because the loggers' own

conduct exposed them to strict liability and involved them in this litigation. Finally,

we hold that Porter and Zimmer are precluded from recovering under the waste

statute because that statute explicitly states that it does not apply when the timber

trespass statute applies, and the timber trespass statute clearly applies here.

We therefore remand to the Court of Appeals to consider whether the trial

court erred in dismissing Porter and Zimmer's assigned contribution claims for

failure to hold a reasonableness hearing and for further proceedings consistent with

this opinion.

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No. 96214-6

WE CONCUR:

A

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