(dissenting) — I agree with the majority’s recitation of the facts and its conclusion that when Radio Holdings’ accountant attempted to tender $3,241.34 to Schilling in exchange for her release of Radio Holdings and the Children’s Media Network, Bingham was aware that Schilling had not been paid and, indeed, was not going to be paid, all of the wages she was owed. I also agree that the cases that have addressed RCW 49.52.070 thus far have not indicated that a failure to pay wages for financial reasons shows a lack of willfulness. See Pope v. University of Wash., 121 Wn.2d 479, 491 n.4, 852 P.2d 1055 (1993) (absence of willfulness “may be established either by a finding of carelessness or by the existence of a bona fide dispute”) (citing Yates v. State Bd. for Community College Educ., 54 Wn. App. 170, 176-77, 773 P.2d 89, review denied, 113 Wn.2d 1005, 777 P.2d 1050 (1989); Brandt v. Impero, 1 Wn. App. 678, 681, 463 P.2d 197 (1969); Ebling v. Gove’s Cove, Inc., 34 Wn. App. 495, 501, 663 P.2d 132, review denied, 100 Wn.2d 1005 (1983)).7 I disagree, however, that these prior cases dictate a holding that an employer who withholds an employee’s wages for some reason other than carelessness or the existence of a bona fide dispute necessarily withholds the wages “willfully.” The question has simply not arisen before this court. Faced squarely with it now, however, precedent does not require us to mechanically conclude that an employer acts willfully in every other situation where wages are withheld. Rather, the prior *167opinions represented rules of law promulgated in response to specific facts. Where, as here, the court has not yet addressed whether an employer acts willfully under a particular set of facts, the absence of a case on point should not prevent us from considering whether one has acted willfully. It is my view that an employer or its agent does not act willfully, for purposes of RCW 49.52.050 and .070, if that employer or agent pays an employee less wages than he or she is owed due to the employer’s inability to pay the full wages. Because under the facts of this case “reasonable minds” could conclude that Bingham was financially unable to pay Schilling, in which case he would not have acted willfully, I dissent.
We may affirm a trial court’s order granting summary judgment only if we are satisfied, after considering the facts in the light most favorable to the nonmoving party, that “there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Barnes v. McLendon, 128 Wn.2d 563, 569, 910 P.2d 469 (1996) (citing In re Estates of Hibbard, 118 Wn.2d 737, 744, 826 P.2d 690 (1992)). All questions of law are reviewed de novo. Mountain Park Homeowners Ass’n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994) (citing Syrovy v. Alpine Resources, Inc., 122 Wn.2d 544, 548 n.3, 859 P.2d 51 (1993)). The nonpayment of wages is willful “when it is the result of a knowing and intentional action.” Lillig v. Becton-Dickinson, 105 Wn.2d 653, 659, 717 P.2d 1371 (1986) (citing Ebling, 34 Wn. App. 495). Willful means “merely that the ‘person knows what he is doing, intends to do what he is doing, and is a free agent.’ ” Brandt, 1 Wn. App. at 681 (quoting Davis v. Morris, 37 Cal. App. 2d 269, 99 P.2d 345 (1940)).
Whether an employer acts “[wjilfully and with intent” for purposes of RCW 49.52.050(2) is a question of fact to be reviewed under the substantial evidence standard. Pope, 121 Wn.2d at 490 (citing Lillig, 105 Wn.2d at 660). Nevertheless, “when reasonable minds could reach but one conclusion” from the evidence accompanying a summary *168judgment motion, such “questions of fact may be determined as a matter of law.” Central Wash. Bank v. Mendelson-Zeller, Inc., 113 Wn.2d 346, 353, 779 P.2d 697 (1989). We must bear in mind, however, that “[s]ummary judgment exists to examine the sufficiency of legal claims and narrow issues, not as an unfair substitute for trial.” Babcock v. State, 116 Wn.2d 596, 599, 809 P.2d 143 (1991). Therefore, it is only if reasonable minds could reach the sole conclusion that Bingham willfully withheld Schilling’s wages that this case may be decided as a matter of law.
Construing the facts in the light most favorable to Bingham, as we must, it is apparent from the record that Radio Holdings, not Bingham, employed Schilling, and that Bingham never represented to Schilling that he would pay her out of his own pocket. Thus, Bingham was never personally liable to pay Schilling’s wages. Moreover, reasonable minds could conclude that Radio Holdings lacked funds to pay Schilling more than the $3,241.34 it offered her. See CP at 39 (“there was little or no money in [Radio Holdings]”); CP at 40 (“U.S. Bank was . . . able to capture 100% of the funds out of the closing.”); CP at 197 (“[check for $3,241.34] represents [Schilling’s] pro-rata share of the monies the bank was willing to release for past due payroll.”). If reasonable minds could conclude that Radio Holdings lacked funds to pay Schilling, and Bingham was not required to pay Schilling out of his own pocket, then they could also conclude that Bingham did not willfully withhold her wages.
That this case presents a triable issue is also manifested by the page of rhetorical questions that the majority poses about what constitutes a “financial inability” to pay. See Majority op. at 164. “In the absence of a clearly demarcated test for financial inability to pay,” the majority reasons, the court must conclude that Bingham’s actions were willful. Majority op. at 164. I disagree. It is precisely because we are unable to determine what factually constitutes an inability to pay that we must remand this case for trial. Deciding a factual question such as this simply because we *169cannot define a standard to be applied improperly invades the province of the jury.
I also disagree with the majority’s assertion that remanding this case for trial would require us to graft an additional exception to liability onto RCW 49.52.070. See Majority op. at 164-65 (“The Legislature is, of course, free to add a further exception to the double damages provisions of RCW 49.52.070 if it so chooses.”). Remanding this case for trial does not require the creation of some “exception” to liability under RCW 49.52.070, it merely requires us to interpret the word “willfully.” In deferring in this way to the Legislature, the majority evades the most fundamental of the court’s duties—interpreting statutes. See, e.g., Ashenbrenner v. Department of Labor & Indus., 62 Wn.2d 22, 26, 380 P.2d 730 (1963) (“It is obviously the duty of this court to interpret the statute in question.”).
Simon v. Riblet Tramway Co., 8 Wn. App. 289, 505 P.2d 1291, 66 A.L.R.3d 1069, review denied, 82 Wn.2d 1004 (1973), is illustrative of this point. There, an employer withheld an employee’s bonus on grounds that payment of it was discretionary. The only defense to an action brought under RCW 49.52.070, according to the case law up to that time, was when an employer withheld an employee’s wages through carelessness. Nevertheless, the Court of Appeals proceeded, without citation, to recognize another defense:
RCW 49.52.050(2) and .070 are not meant to apply to this factual situation; herein, there was a bona fide disagreement between employer and employee with regard to ... a discretionary bonus. This situation evidences no intentional deprivation of wages as required to sustain a claim under RCW 49.52.050.
Simon, 8 Wn. App. at 293. Like the Court of Appeals in Simon, we should apply RCW 49.52.050(2) and .070 to the facts before us in a commonsense manner, uninhibited by prior decisions applying the term “willfully” in distinguishable factual circumstances. *170the term ‘‘willful” in a similar context. In People v. Alves, 155 Cal. App. 2d Supp. 870, 320 P.2d 623 (Cal. App. Dep’t Super. Ct. 1957), the Appellate Division of the California Superior Court considered whether a statute that criminalizes an employer’s willful failure to make payments to a health and welfare fund violated a provision in the California Constitution forbidding imprisonment for debt except in cases of fraud. Noting that “wages are not ordinary debts,” the court concluded that a failure to pay wages “amounts to a ‘case of fraud’ ” and that the statute therefore did not violate the constitutional provision. Alves, 320 P.2d at 624 (quoting In re Trombley, 31 Cal. 2d 801, 193 P.2d 734, 740 (1948)). In so holding, the court stated that the term “ ‘wilful’ implies that the employer has the ability to pay, for if he lacks the ability to pay there is no wilful failure on his part.... Although the words ‘having the ability to pay’ do not appear in [the statute], the prosecution must prove such ability.” Alves, 320 P.2d at 625.
*169Also instructive is a California court’s interpretation of
*170Alves is helpful not only because it involved the interpretation of a term similar to the one at issue here, but also because the Washington Constitution, like its California counterpart, prohibits incarceration for failure to pay a debt. See Const, art. I, § 17. Although the statute under which Schilling sued, RCW 49.52.070, provides only for civil damages, liability is premised on a preliminary determination that the employer violated RCW 49.52.050(2). The latter statute makes it a misdemeanor to willfully withhold an employee’s wages, and thus presumably subjects the violator to imprisonment. See RCW 9A.20.010(2) (defining misdemeanor as an offense for which “imprisonment in a county jail” is possible).8 While we have not directly addressed in Washington the constitutional issue confronted in Alves, it is reasonable to assume that because of our similar constitutional provision, an employer in Washington could not be held criminally liable under RCW 49.52.050 if the employer is financially unable to pay the employee. I *171fail to see why that statute should receive a different construction in assessing an employer’s civil liability under RCW 49.52.070.
Language in State v. Curry, 118 Wn.2d 911, 829 P.2d 166 (1992), is consonant with the notion that an employer’s financial ability to pay is a prerequisite to a finding that the employer acted willfully. In that case, we rejected the defendants’ claim that the imposition of a mandatory victim penalty assessment was unconstitutional on its face. Noting that article I, section 17 would preclude imprisonment solely for inability to pay, we concluded that “no defendant [would] be incarcerated for his or her inability to pay the penalty assessment unless the violation is willful.” Curry, 118 Wn.2d at 918.
In short, the previously noted defenses to a finding of willful failure to pay wages were not carved into the granite of the statute, as one would perhaps believe from a cursory reading of the majority opinion. Rather, they resulted from courts construing what constitutes acting “[w]ilfully and with intent to deprive the employee of any part of his wages.” RCW 49.52.050(2). The majority acknowledges this fact, albeit begrudgingly, observing on the one hand that “[i]n the absence of an express legislative exception . . . for an employer who alleges a financial inability to pay wages due, we decline to create such an exception judicially,” Majority op. at 165-66, and on the other hand conceding that it is actually prior “cases”—not the statute itself—that “indicate that there are two instances when an employer’s failure to pay wages is not willful.” Majority op. at 160.
It is unclear why the majority concludes that this court should be precluded from developing any further case law in this area upon being confronted with a case which calls upon us to construe whether activity is forbidden by RCW 49.52.050(2) under facts clearly distinguishable from cases decided before. The majority is apparently content to put its seal of approval upon the two previously found defenses, and yet closes the door to further interpretation. The fact *172that the majority disapproves of a “financial inability to pay wages” defense should not allow it to reminisce about inapposite cases in order to avoid the exercise of considering the literal meaning, under the present facts, of the requirement that an employer act “wilfully and with intent to deprive” to incur liability. “[A]n interpretation of a statute producing. . . strained consequences must be avoided.” Griffin v. Eller, 130 Wn.2d 58, 80, 922 P.2d 788 (1996) (Talmadge, J., dissenting) (citations omitted). Yet, despite the obvious meaning of the words used in the statute, the majority strains to find here the “[affirmative evidence of intent to deprive an employee of wages ... is necessary to establish liability under RCW 49.52.050.” Pope, 121 Wn.2d at 491 n.4 (emphasis added). In my view, it is far better to heed the wisdom of another court: “[W]e take ‘willfully’ to mean voluntarily, with knowledge of the obligation and despite the financial ability to pay it.” Ives v. Manchester Subaru, Inc., 126 N.H. 796, 498 A.2d 297, 302 (1985) (emphasis added) (interpreting a New Hampshire wage statute).
Construing the facts of this case in favor of Bingham, I am satisfied that “reasonable minds” could conclude that Radio Holdings lacked the financial resources to pay more than the $3,241.34 it offered Schilling and, thus, did not act willfully in failing to pay full wages owed. Accordingly, I would reverse the trial court and remand this case for trial. Thus, I dissent.
Johnson and Sanders, JJ., concur with Alexander, J.
There is no argument here that Schilling’s wages were withheld due to carelessness or any dispute over the amount owed.
There are no reported cases involving a criminal prosecution for violation of RCW 49.52.050.