449 P.3d 627
Wash.2019Background
- Pepper and Clarice Kirkendoll hired loggers to harvest timber but Pepper falsely represented that he owned all land west of a private road; the loggers cut 51 Douglas firs on neighbors Jerry Porter and Karen Zimmer’s land.
- Porter and Zimmer sued the Kirkendolls, G & J Logging, and Boone’s Mechanical Cutting for timber trespass (RCW 64.12.030) and waste (RCW 4.24.630).
- Porter and Zimmer settled with the G & J and Boone defendants for $125,000; the loggers assigned their contribution and indemnity cross‑claims against the Kirkendolls to Porter and Zimmer.
- The trial court granted the Kirkendolls summary judgment, finding the settlement released them and that contribution/indemnity claims were invalid.
- The Court of Appeals reversed in part: it held the settlement did not release the Kirkendolls from direct liability, allowed assigned indemnity claims (but not contribution), and barred recovery under the waste statute because timber trespass provided relief.
- The Washington Supreme Court: affirmed that the settlement did not release the Kirkendolls and that the waste statute is unavailable when timber trespass applies; reversed that Porter and Zimmer could recover by indemnity (both common‑law and equitable) and remanded to address whether the trial court properly dismissed assigned contribution claims for failure to comply with tort‑reform settlement procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether settling with the loggers released the Kirkendolls | Porter & Zimmer: settlement with loggers did not release Kirkendolls because Kirkendolls are directly liable for directing the trespass | Kirkendolls: loggers were agents; settlement with agent released principal (vicarious liability) | Settlement did not release Kirkendolls; this is direct (not vicarious) liability, so release of loggers did not discharge Kirkendolls |
| Whether plaintiffs (as assignees) have common‑law indemnity for the settlement payment | Porter & Zimmer: indemnity available; loggers were passive and should be indemnified by Kirkendolls | Kirkendolls: tort reform act abolished common‑law indemnity where statutory contribution applies; timber trespass is strict liability | Timber trespass is strict tort liability → tort reform act affords statutory contribution → common‑law indemnity is not available |
| Whether plaintiffs can recover under equitable indemnity (ABC rule) | Porter & Zimmer: equitable indemnity available because Kirkendolls’ wrongful acts exposed loggers to suit | Kirkendolls: loggers’ own wrongful acts exposed them; equitable indemnity is not appropriate | Equitable indemnity unavailable as a matter of law because the loggers’ independent conduct exposed them to litigation |
| Whether plaintiffs may recover under the waste statute in addition to timber trespass | Porter & Zimmer: waste statute’s remedies (fees, investigative costs) should still be available and statutes can be harmonized | Kirkendolls: waste statute expressly excludes cases where damages are provided under timber trespass | Waste statute does not apply where timber trespass provides liability; plaintiffs are precluded from recovering under the waste statute |
Key Cases Cited
- Glover v. Tacoma Gen. Hosp., 98 Wn.2d 708 (Wash. 1983) (settlement with agent may release vicarious liability but not direct liability)
- Vanderpool v. Grange Ins. Ass'n, 110 Wn.2d 483 (Wash. 1988) (settlement with solvent agent can undermine principal liability)
- Rufener v. Scott, 46 Wn.2d 240 (Wash. 1956) (common‑law indemnity for passive tortfeasors described)
- Johnson v. Cont'l W., Inc., 99 Wn.2d 555 (Wash. 1983) (tort reform act did not intend to leave parties without any indemnity when contribution is unavailable)
- Birchler v. Castello Land Co., 133 Wn.2d 106 (Wash. 1997) (distinguishing timber trespass and common law trespass; treble damages for willful conduct)
- Jongeward v. BNSF Ry. Co., 174 Wn.2d 586 (Wash. 2012) (timber trespass applies to direct acts causing immediate injury)
- Broughton Lumber Co. v. BNSF Ry. Co., 174 Wn.2d 619 (Wash. 2012) (companion to Jongeward on scope of timber trespass)
- Welch v. Southland Corp., 134 Wn.2d 629 (Wash. 1998) (intentional torts treated differently under tort reform act; contribution unavailable for intentional torts)
- L.K. Operating, LLC v. Collection Grp., LLC, 181 Wn.2d 117 (Wash. 2014) (describing equitable indemnification/ABC rule)
- Tradewell Grp., Inc. v. Mavis, 71 Wn. App. 120 (Wash. Ct. App. 1993) (limitations on equitable indemnity where the indemnitee’s own conduct also exposed it to suit)