Markoff v. Puget Sound Energy, Inc., 77785-8-I

• Decision Date: 19 August 2019
• Docket Number: No. 77785-8-I,77785-8-I
• Citation: 447 P.3d 577
• Court: Washington Court of Appeals
• Parties: Jeffrey K. MARKOFF and Alicia Markoff, individually and as a married couple; Edward C. Newell and Troy-Lynn Newell, individually and as a married couple; Charles Meyer and Julie Meyer, individually 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 Candace 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, Respondents.

447 P.3d 577

Jeffrey K. MARKOFF and Alicia Markoff, individually and as a married couple; Edward C. Newell and Troy-Lynn Newell, individually and as a married couple; Charles Meyer and Julie Meyer, individually 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 Candace 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, Respondents.

No. 77785-8-I

Court of Appeals of Washington, Division 1.

FILED: August 19, 2019

MOTION FOR RECONSIDERATION DENIED: October 9, 2019

Darrell L. Cochran, Kevin Michael Hastings, Pfau Cochran Vertetis Amala PLLC, 911 Pacific Ave. Ste. 200, Tacoma, WA, 98402-4413, for Appellants.

Jeffrey M. Thomas, Mark A. Wilner, Gordon Tilden Thomas & Cordell LLP, 600 University St. Ste. 2915, Seattle, WA, 98101-4172, Dennis Gregory Woods, Jimmy Brown Meeks Jr., Holt, Woods & Scisciani, LLP, 701 Pike St. Ste. 2200, Seattle, WA, 98101-2358, Matthew R. Wojcik, Holly D. Brauchli, Bullivant Houser Bailey PC, 1700 7th Ave. Ste. 1810, Seattle, WA, 98101-1820, for Respondents.

Alexander John Skalbania, Emmal Skalbania & Vinnedge PLLC, 3600 15th Ave. W. Ste. 201, Seattle, WA, 98119-1330, Thomas A. Woodley, William W. Li, Woodley & McGillivary LLP, 1101 Vermont Ave. Nw., Suite 1000, Washington, DC, 20005, as Amicus Curiae on behalf of International Association of Firefighters.

PUBLISHED OPINION

Dwyer, J.

¶1 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, 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

¶2 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.

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

¶4 Not long after, on May 12, 2017, Jeffrey Markoff, one of the injured firefighters, along with his wife Alicia, sued PSE, Pilchuck 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.¹ 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.

¶5 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 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.

¶6 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.

¶7 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,

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.

¶8 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.

¶9 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 and statutory tort claims and that dismissal without prejudice was the proper remedy for their injunctive relief claim.²

II

A

¶10 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 Wash.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 Wash.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 Wash.2d 96, 101, 233 P.3d 861 (2010).

¶11 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 Wash.2d 415, 420, 755 P.2d 781 (1988) (internal quotation marks omitted) (quoting Orwick v. City of Seattle, 103 Wash.2d 249, 254, 692 P.2d 793 (1984) ). The "court may...