Harlan D. Douglass, et ux v. Shamrock Paving, Inc.
196 Wash. App. 849
Wash. Ct. App.2016Background
- Harlan and Maxine Douglass owned Spokane property Shamrock used without permission as a staging/fueling area for ~3 months, leaving petroleum-containing materials.
- Douglasses hired Tetra Tech for soil testing; precleanup samples showed lube oil at 2,000 mg/kg, 800 mg/kg, and 400 mg/kg; after they removed 68 tons of soil, postremoval samples were 220 mg/kg and <100 mg/kg.
- Douglasses sued for trespass, nuisance, and sought MTCA recovery for remedial action costs; jury awarded $17,300 on tort claims.
- Trial court found Shamrock liable under MTCA but denied remedial cost recovery, concluding precleanup contamination did not pose a threat or potential threat; awarded attorney fees/costs to Shamrock.
- Court of Appeals reversed: held investigative actions to identify potential threats qualify as "remedial action" under MTCA; cleanup costs were not necessarily remedial given low contamination; remanded for equitable assessment and award of fees to Douglasses.
Issues
| Issue | Douglass' Argument | Shamrock's Argument | Held |
|---|---|---|---|
| Whether "remedial action" under MTCA includes investigative/monitoring costs | "Remedial action" includes steps to assess whether a release poses a threat, so investigative costs are recoverable | "Remedial action" should be limited to measures addressing contamination that actually poses a threat or potential threat | Court: MTCA definition expressly includes investigative and monitoring activities; investigative costs are compensable even if no threat is ultimately found |
| Whether the Douglasses' cleanup (soil removal) qualified as remedial action | The removal was remediation and should be recoverable | Precleanup contamination levels were below Department cleanup levels and did not pose a threat, so cleanup was not remedial | Court: Substantial evidence supports trial court finding cleanup was not required because contamination did not pose a threat; cleanup costs may be nonremedial and are relevant to equitable allocation |
| Whether Douglasses are entitled to prevailing-party fees and appellate fees under MTCA | Having established elements of contribution claim, they are prevailing parties entitled to fees | Opposed because trial court initially awarded fees to Shamrock | Court: Douglasses qualify as prevailing parties; remand for lodestar fee award including appellate fees |
Key Cases Cited
- Davis v. Dep't of Labor & Indus., 94 Wn.2d 119 (trial-court factual findings upheld on appeal)
- Seattle City Light v. Dep't of Transp., 98 Wn. App. 165 (MTCA private-cost recovery framework; discussion of cleanup liability)
- Taliesen Corp. v. Razore Land Co., 135 Wn. App. 106 (prevailing-party fees under MTCA)
- Chuong Van Pham v. Seattle City Light, 159 Wn.2d 527 (lodestar method for attorney fees)
- Pac. Topsoils, Inc. v. Dep't of Ecology, 157 Wn. App. 629 (statutory construction and MTCA purpose)
- Williams v. Tilaye, 174 Wn.2d 57 (de novo review rules for legal questions)
- Akzo Coatings, Inc. v. Aigner Corp., 909 F. Supp. 1154 (example of equitable allocation of response costs)
- Bd. of County Comm'rs v. Brown Grp. Retail, Inc., 768 F. Supp. 2d 1092 (CERCLA: investigatory costs recoverable)