Mayer v. City of Seattle

• Decision Date: 17 July 2000
• Docket Number: No. 44775-1-I.,44775-1-I.
• Citation: 102 Wash.App. 66,10 P.3d 408
• Court: Washington Court of Appeals
• Parties: Kurtis R. MAYER and Pamela Mayer, husband and wife Appellants/Cross-Respondents, v. The CITY OF SEATTLE, a municipal corporation, and John D. McFarland an individual, and Holnam, Inc., a Delaware corporation, Respondents/Cross-Appellants. John D. McFarland, an individual and The City of Seattle, a municipal corporation, Third Party Plaintiffs, v. ASARCO, Inc., a New Jersey corporation, RSR Corporation, a Texas corporation, John H. Yates and Jane Doe Yates, and the marital community thereof; Yates Stables Company; Duwamish Excavating and Trucking; and Ernie Williams Company, Third Party Defendants.

10 P.3d 408

102 Wash.App. 66

Kurtis R. MAYER and Pamela Mayer, husband and wife Appellants/Cross-Respondents, v. The CITY OF SEATTLE, a municipal corporation, and John D. McFarland an individual, and Holnam, Inc., a Delaware corporation, Respondents/Cross-Appellants.

John D. McFarland, an individual and The City of Seattle, a municipal corporation, Third Party Plaintiffs, v. ASARCO, Inc., a New Jersey corporation, RSR Corporation, a Texas corporation, John H. Yates and Jane Doe Yates, and the marital community thereof; Yates Stables Company; Duwamish Excavating and Trucking; and Ernie Williams Company, Third Party Defendants.

No. 44775-1-I.

Court of Appeals of Washington, Division 1.

July 17, 2000.

Publication Ordered August 31, 2000.

Warren J. Daheim, Bradley B. Jones, Gordon, Thomas, Honeywell, et al., Tacoma, for Appellants.

Joel E. Wright, Lee, Smart, Cook, Martin & Patterson, John W. Phillips, Heller, Ehrman, White & McAuliffe, Theodore H. MilIan, Hackett, Beecher & Hart, Seattle, for Defendants.

John E. Lenker, John C. Bjorkman, Preston, Thorgrimson, Ellis & Holman, William T. Willard, Peter E. Hapke, Helen B. Moure, Seattle, for Respondents.

APPELWICK, J.

Kurtis Mayer sued the respondents in tort and for violations of Washington's Model Toxics Control Act, when toxic cement kiln dust was discovered on property where Mayer wished to construct a road. A genuine issue of material fact exists regarding when Mayer reasonably should have known that the property was contaminated. Therefore, the trial court erred in ruling as a matter of law that the statute of limitations on the tort claims had expired. Further, the court abused its discretion in awarding Mayer $274,302.05 in attorney fees. Therefore, we reverse and remand both the summary judgment order and the attorney fees award.¹

FACTS

In 1978, real estate developer Kurtis Mayer purchased a 10-acre piece of property (the "Pigeon Point" property) in a heavily wooded and isolated area of West Seattle. Pigeon Point is located adjacent to Puget Park and 100 yards north of a piece of property owned by John McFarland. The City of Seattle (City) owns Puget Park, which consists of 17.6 acres of undeveloped greenbelt. The primary access to Mayer's property and Puget Park is a narrow winding road known as Puget Way Southwest, which crosses McFarland's property.

Respondent Holnam, Inc. and its predecessor, Ideal Cement Company, manufactured cement at a plant located near the properties in question.² Cement kiln dust, commonly referred to as "CKD," is a waste byproduct of cement manufacture. The pH and metals content in CKD varies widely among cement manufacturers. If the CKD's pH exceeds 12.5 or if it contains elevated metals, CKD will designate as a dangerous waste. See WAC 173-303-070(3)(a)(iii), .090(6)(a)(iii) and .090(8)(a).

In approximately 1969, Ideal contracted with third parties to remove CKD from the Ideal plant. In the late 1960s and early 1970s, approximately 50,000 cubic yards of CKD from the Ideal plant were placed as fill into a ravine located in Puget Park and onto McFarland's property. Mayer does not allege that his property is contaminated by CKD. The City authorized the CKD dumping.

Aerial photographs of Puget Park and McFarland's property taken in 1978 and 1980 document that the CKD fill was clearly visible at that time. The fill is a powdery material with a white to off-white color and is dissimilar in color to soils in the area. Referring to the photographs, McFarland testified that the fill was visible to anyone walking or driving along Puget Way Southwest at the time the pictures were taken. Mayer claims he was not aware of any unnatural fill materials on Puget Way Southwest, the McFarland property, or Puget Park when he purchased Pigeon Point in 1978.

Between 1978 and 1992, Mayer obtained several assessments of his property, the access road, and the surrounding area, in preparation for development. The record contains copies of several of these reports. Many of the reports express concerns about soil stability and the need for improvements to Puget Way Southwest. But none of them addresses the chemical composition of the fill material.

On January 15, 1988, McFarland filed suit against the City and his neighbors to quiet title to Puget Way Southwest. Mayer intervened in the action. On January 31, 1992, Mayer, the City and McFarland entered into a settlement agreement of the quiet title action. The agreement provided for title to be quieted in the City to an expanded right-of-way along the existing route of Puget Way Southwest. Mayer was to submit a proposal for construction of a road along the expanded right-of-way, and apply for a permit from the City. McFarland wished to realign a portion of the roadway over his property. He was given the right under the settlement agreement to submit a proposal for the realignment.

In 1990, Mayer took McFarland's deposition in connection with the quiet title action. McFarland testified in the deposition that "fly ash from the cement plant" had been placed in a fill area on his property in about 1968 to 1969. But McFarland did not indicate any concerns about the toxicity of the "fly ash."

On January 23, 1992, Mary Pfender from the City wrote to Mayer and McFarland's engineer, commenting on the proposal for both the existing roadway alignment and McFarland's proposed realignment. Pfender requested "[g]eotechnical stud[ies]" for both alignments. Pfender's concern expressed in the letter was the stability of the surrounding terrain: she wrote, "In general, our objective is to end up with a pavement designed to hold up over time given the roadbed soil conditions and to ascertain that the slopes above and below the right of way will be stable on completion of the road." Pfender also requested additional information "due to the unknown composition and characteristics of the fill on which the relocated roadway would be built." She requested a soil boring in the fill area to determine the "characteristics and depth of the fill" as well as its "composition." She further stated, "If the fill is fly ash, check with [the Washington State Department of Ecology ("Ecology")] to see if there are any special requirements for construction of a road over fly ash." Neither Mayer nor McFarland contacted Ecology as Pfender requested.

In response to Pfender's letter, Mayer and McFarland retained Dames & Moore to conduct a "geotechnical" investigation of the existing roadway and proposed realignment. In a written report, Dames & Moore expressly identified the presence of the "white ash" fill on McFarland's property and noted that Mayer's proposed road alignment was at least "partly on the low-density fill placed by McFarland." Dames & Moore concluded that the "white ash" was unsuitable for a road base because it was uncompacted.

When the City required additional geotechnical work in 1993, Mayer hired GeoGroup Norwest, Inc. (GeoGroup). As GeoGroup's William Chang attested, GeoGroup discovered that the fill material was in fact cement kiln dust:

At the time of the Dames & Moore report, the material had only been identified as "white ash." At some point after the Dames & Moore study, while we were preparing our geotechnical study, we became aware that the material was in reality cement kiln dust.

Because of the volume of cement kiln dust encountered in the alternative right-of-way and our knowledge that the material was cement kiln dust which we suspected to be caustic, I felt it appropriate to conduct a single pH litmus paper test of the material.

The litmus paper test revealed that the fill material had a high pH of about 13; this result was presented in GeoGroup's December 1993 report.

In the meantime, the City had tested the CKD fill material in Puget Park and determined that it contained dangerous levels of lead and arsenic. On March 29, 1994, Pfender wrote to Mayer disclosing this information. Pfender stated that the fill on the Puget Way Southwest roadway was likely similar to the fill in Puget Park. Pfender wrote, "[u]nless the developer removes the cement ash or provides the City with assurances that it will not be exposed to a future environmental lawsuit or enforcement action, the City cannot accept the roadway."

In response to Pfender's letter, the City, McFarland and Mayer jointly selected RZA AGRA, a nationally known environmental consulting firm, to perform the required environmental site assessment. By early July 1994, RZA AGRA reported its initial findings of exceedingly high levels of toxic heavy metals, up to twenty times above applicable human health safety standards, in Puget Park, the McFarland property, and Puget Way Southwest. Mayer claims that this is the first time he knew that the fill material along Puget Way Southwest was contaminated. Pursuant to WAC 173-340-300, Mayer reported the contamination to Ecology. On November 8, 1994, Ecology informed Mayer that the roadway, Puget Park and McFarland's property were all one "site" for cleanup and liability purposes under the Model Toxics Control Act (MTCA), RCW 70.150D.

Effective April 16, 1995, Mayer sued Holnam, the City and McFarland under theories of nuisance, negligence, strict liability and negligence per se. Mayer alleged that the defendants' creation and maintenance of a toxic waste dump in Puget Park and along Puget Way Southwest impacted Mayer's ability to develop his property. On March 15, 1996, Mayer amended his complaint to allege that defendants were strictly, jointly and severally liable to him under MTCA for all remedial action costs incurred as a consequence of the CKD dumping. McFarland, the City and Holnam have since completed an independent remedial action of the CKD site.

Before filing his tort lawsuit, Mayer negotiated a partially contingent fee agreement with his attorneys. Rather than their usual hourly rates of up to $200 per hour, Mayer's attorneys charged him $75 per hour plus a percentage of the tort...