Certification from United States District Court for Western District of Washington In Louisiana-Pacific Corp. v. Asarco Inc.Certification from United States District Court for Western District of Washington In Louisiana-Pacific Corp. v. Asarco Inc.
- Reporters:
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- Before:
- Smith
Lead Opinion
The United States District Court for the Western District of Washington at Tacoma on February 23, 1996 certified to this court the question whether an award of attorneys’ fees and costs to a prevailing party under the private action section of the Model Toxics Control Act,
QUESTION PRESENTED
Under the Certification Order the only question in this case is whether an award of attorneys’ fees and costs to a prevailing party under the private action section of the Model Toxics Control Act
STATEMENT OF FACTS
This action in the United States District Court for the Western District of Washington arose as a result of pollution at several sites near the Port of Tacoma by heavy metal contaminants leached from a slag and wood waste mixture. Asarco Incorporated (Asarco) had been smelting near Tacoma since 1905. In about 1973, Asarco entered into a contract with a distributor to sell slag, a by-product of smelting. The distributor sold the slag to log yards to use essentially like gravel. The log yards would use a load of slag until it became too mixed with wood waste and other debris. Then the log yards would haul away the slag mixture and put down a new load of slag.
In 1980, the Environmental Protection Agency (EPA) found high concentrations of heavy metals in the water runoff from one of the log yards. The EPA turned its findings over to the Washington Department of Ecology (Ecology). During the course of the next several years Ecology met with representatives of affected sites, but took no formal action. In 1986 Ecology began formally requiring cleanup of the sites.
A suit was brought in the United States District Court for the Western District of Washington under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)
On appeal Defendant contended slag was excluded from CERCLA; argued the state law claims were barred by the statute of limitations; argued the lower court erred in not granting summary judgment and in imposing response costs under CERCLA; and requested a new trial because of excluded evidence and erroneous jury instructions.
Plaintiffs cross-appealed. They contended the court erred in reducing their attorneys’ fees by the percentage of comparative fault, in determining their nuisance claims were preempted by the Washington Product Liability Actions statute
On remand the United States District Court for the Western District of Washington, the Honorable Robert J. Bryan, determined plaintiffs were the prevailing parties in the MTCA case brought under
(1) Expert witness fees; (2) all deposition costs; (3) long distance telephone calls and telefax charges; (4) photocopying charges (including copy machine rental); (5) out of town travel costs of lawyers, lawyers’ staff and witnesses; (6) out of .town lodging expenses (including meals) for lawyers, lawyers’ staff and witnesses; (7) computerized legal research; (8) mediator fees and expenses; (9) office, office furniture and equipment rentals, and the cost of supplies and equipment incurred specifically for this litigation; (10) postage, including overnight delivery and messenger charges; (11) automobile and mileage allowances, including out of town parking; (12) exhibit preparation costs (film development, photographic production and enlargement, etc.); (13) cost of paralegal and clerical assistance obtained from outside firms, and not recoverable as attorneys’ fees; and (14) cost of other paralegal and clerical assistance not otherwise recoverable as attorneys’ fees.[15 ]
DISCUSSION
Plaintiffs contend they should be fully reimbursed under case law, the language of the MTCA, the court’s interpretation of "reasonable attorneys’ fees and costs” in contract law, the legislative policies expressed throughout the MTCA, and public policy considerations. Defendants contend the statute refers to expenses and costs in two distinct provisions that serve entirely different purposes which limit the potential recovery sought by Plaintiffs, that the MTCA provides no guidance concerning the proper scope of expanded cost recovery, and that the statute thus should be interpreted narrowly.
Washington Case Law
Plaintiffs contend the current confusion in Washington over recoverable costs arises in part from the trend away from the American rule on attorneys’ fees and costs.
According to Plaintiffs, the Legislature has contributed to the confusion by inconsistency in its use of words.
In Shannon v. Pay 'N Save Corp.
Plaintiffs assert that Washington courts have consistently authorized recovery of litigation expenses when a statute has referred to both "costs” and "expenses.”
According to Defendant, Plaintiffs erroneously rely on In re Statler’s Estate and Puget Sound Plywood, Inc. v. Mester because the phrases being interpreted were substantially different from those contained in
In Puget Sound Plywood this court interpreted former
In Hume the court stated that, absent a statute expressly allowing expanded cost recovery, the plaintiffs are not entitled to such generous cost awards. The court cited Nordstrom, Inc. v. Tampourlos as an example of disallowing extended costs in a Consumer Protection Act case.
Defendant cites Hume for the proposition that expanded cost recovery is not favored in Washington and that civil rights cases are the exception.
Interpretation of the Model Toxics Control Act
Plaintiffs contend the Legislature intended broader recovery under the MTCA than allowed
Defendant argues that, unlike other statutes authorizing expanded cost recovery, the MTCA does not provide any guidance concerning the specific categories of litigation expenses which may be compensated.
Plaintiffs contend the MTCA provides recovery for prevailing parties for their "reasonable . . . expenses” and "reasonable . . . costs.” This is in addition to reasonable attorneys’ fees. Because the trial court is required to determine what constitutes reasonable attorneys’ fees, Plaintiffs contend the court is equally capable of determining what constitutes reasonable expenses and costs.
In considering the plain meaning of this statute, Defendant divides
Defendant argues that the MTCA’s remedial action provision does not apply in this case because the expenses at issue are litigation expenses and not remedial action costs. Defendant refers to the definition portion of the statute to support its claim that Plaintiffs’ action is not remedial.
Plaintiffs contend the 1993 amendment to
In interpreting
To support its interpretation of the statute, Defendant uses part of a statement by an unidentified House Staff Counsel at a March 18, 1993 hearing of the House Environmental Affairs Committee:
House Staff, Legal Counsel, State House of Representatives ("House Staff”): Thank you, Madam Chair. Senate Bill 5404 is nearly identical to House Bill 1597 which this committee considered earlier in the session. This deals with the ability of a party who initiates a cleanup under the Model Toxics Control Act to initiate a lawsuit to recover the costs of other entities who are also responsible for those cleanup costs. Because of a Supreme Court decision last summer, right now it’s either not possible or unclear whether one can recover from those other individuals their proportionate share of the costs, and this bill would reinstate that right of action. There is one difference, actually a couple, one very minor and then one additional sentence in this bill compared to the House Bill and that’s on page 2, line 4. The sentence which starts "the prevailing party in such an action shall recover its attorneys’ fees and costs . . .” is one added element to the Senate Bill to make it very clear that as part of the action the prevailing party, that is, the party that wins the proceeding, can recover their attorneys’ fees.
Chairman Rust: How had we said that before?
House Staff: If you look on page 1, line 13, we say remedial action costs shall include attorneys’ fees and expenses, and I think the concern here is that there may be two stages in the process; one is where you may need attorneys to do the remedial action, and then you may also need an attorney for the contribution action, the lawsuit. And so the second sentence was added there to make it very clear that if you have to file a lawsuit to obtain your attorneys’ fees, or to obtain your remedial action costs, those attorneys’ fees can also be recovered.
(Emphasis omitted.)
The brief of Amicus Curiae Washington Environmental Council quoted the latter part of that statement as support for its conclusion that the drafters of the statute intended to make a party whole who sustained expense as a result of getting rid of pollution.
The limited legislative history available does not lend itself to a reliable conclusion of "legislative intent” behind this portion of the statute.
Plaintiffs argue that references to "attorneys’ fees and expenses” and "attorneys’ fees and costs” serve a single purpose. They argue that the first reference to attorneys’ fees and costs is to remedial action costs, and that the second reference to attorneys’ fees and costs is to fees and costs allowed to prevailing parties.
Both parties refer to historical principles of statutory interpretation. In particular, Plaintiffs state that courts are required to give effect to every word, clause and sentence;
When interpreting a statute, this court has looked first to the ordinary meaning of the words used by the Legislature.
Interpretation of "Reasonable Attorneys’ Fees and Costs” in Contract Law
Plaintiffs contend that Washington courts have uniformly interpreted "reasonable attorneys’ fees and costs” to include full recovery of the prevailing party’s litigation expenses in contract law.
Defendant concedes that when "parties to a contract use the term 'costs’ ... it is not unreasonable to assume that they are referring to out-of-pocket costs of litigation,” but discounts the usefulness of contract law in interpreting
In response, Plaintiffs state that, absent a statutory definition, a term must be accorded its plain and ordinary meaning.
Plaintiffs point out that the MTCA is a remedial statute which is "to be liberally construed to effectuate [its] policies and purposes.”
This court has previously recognized certain issues warranting expanded cost recovery to further underlying public policies.
In contrast, Defendant points out that this court denied expanded cost recovery in Nordstrom, Inc. v. Tampourlos,
This argument overlooks the fact that in this statute,
Other Issues
Defendant argues that Plaintiffs should not recover because this case was begun prior to enactment of
In addition, Defendant contends that because
SUMMARY AND CONCLUSIONS
The plain meaning of
We answer the certified question presented by the United States District Court for the Western District of Washington as follows:
Durham, C.J., and Dolliver, Johnson, and Sanders, JJ., concur.
Notes
Hazardous Waste Management Act,
Pls.’ Br. in Support of Award of Litigation Expenses Under
Louisiana-Pacific Corp. v. Asarco Inc.,
Louisiana-Pacific,
Louisiana-Pacific,
ld.
ld.
Id. ("Although the damages recoverable under the MTCA might not exceed the damages recoverable under CERCLA, a question on which we express no opinion, attorney fees are recoverable under the MTCA.”).
Id.
Case Number C88-217TB, Certification to the Supreme Court of Washington.
“Except as provided in
"The measure and mode of compensation of attorneys and counselors, shall be left to the agreement, expressed or implied, of the parties, but there shall be allowed to the prevailing party upon the judgment certain sums by way of indemnity for the prevailing party’s expenses in the action, which allowances are termed costs, including, in addition to costs otherwise authorized by law, the following expenses:
"(1) Filing fees-,
"(2) Fees for the service of process ....
"(3) Fees for service by publication-,
"(4) Notary fees ....
"(5) Reasonable expenses, exclusive of attorneys’ fees, incurred in obtaining reports and records, which are admitted into evidence at trial or in mandatory arbitration in superior or district court, including but not limited to medical records, tax records, personnel records, insurance reports, employment and wage records, police reports, school records, bank records, and legal files-,
"(6) Statutory attorney and witness fees-, and
"(7) To the extent that the court or arbitrator finds that it was necessary to achieve the successful result, the reasonable expense of the transcription of depositions used at trial or at the mandatory arbitration hearingt ]....” (Emphasis added).
Certification to the Supreme Court of Washington at 2.
Pls.’ Br. at 12.
Wagner v. Foote,
Pls.’ Br. at 13-14 (citing
Pls.’ Br. at 19.
Wn.2d 135,
Pls.’ Br. at 20.
Asarco’s Br. in Opposition to Award of Expanded Litigation Expenses Under
/d.
Asarco’s Br. at 23-24.
Repealed June 1, 1992, by Laws 1991, ch. 281, § 31.
Asarco’s Br. at 3, 11-12.
Pls.’ Br. at 21 (citing, for example, Boeing Co. v. Sierracin Corp.,
Pls.’ Br. at 22.
Asarco’s Br. at 6.
Id. at 6-7.
Pls.’ Reply Br. at 21.
M. at 22.
Asarco’s Br. at 17.
Id. at 5, referring to the definitions in
Asarco’s Br. at 5-6.
Pls.’ Reply Br. in Support of Award of Litigation Expenses under
Pls.’ Reply Br. at 16-17.
Asarco’s Br. at 20-21.
Id. at 22. Original source document not otherwise identified.
Br. of Amicus Curiae Washington Environmental Council Re Litigation Expenses Awarded to the Prevailing Party Under MTCA at 5.
Research on this portion of the statute did not produce any additional insight into legislative intent. The only firm conclusion from the legislative history of
Pls.’ Reply Br. at 5-6.
Citing Cox v. Helenius,
Citing Price v. Kitsap Transit,
Citing State v. Young,
Citing Gilbert H. Moen Co. v. Island Steel Erectors, Inc.
Anderson v. Seattle,
1d.
Pls.’ Br. at 24.
ld.
Asarco’s Br. at 39.
Id. at 615. The court actually stated: "Parties who execute contracts frequently do not understand the technical or professional meaning of the words employed, and if the court can gather from the whole contract the real intention of the parties, such intention will govern notwithstanding things which are contracted with reference to may be wrongly designated[sic].”
Asarco’s Br. 37, 38 (citing Public Util. Dist. No. 1 v. Washington Pub. Power Supply Sys.,
Pls.’ Reply Br. at 20 (citing Dennis v. Department of Labor & Indus.,
Pls.’ Br. at 25 quoting ROW 70.105D.910 (emphasis omitted).
Pls.’ Br. at 25.
Id. at 26 citing Blair v. Washington State Univ.,
Pls.’ Br. at 26 (citing Absher Constr. Co. v. Kent Sch. Dist. No. 415,
Pls.’ Br. at 26.
Asarco’s Br. at 32.
W. at 35-37 citing Dempere v. Nelson,
Asarco’s Br. at 7, 43-48.
See Bird-Johnson Corp. v. Dana Corp.
Asarco’s Br. at 49.
Bird-Johnson Corp.,
Concurrence Opinion
(concurrence) — I concur fully with the majority opinion written by Justice Smith but write separately to emphasize certain considerations which wholly support the majority’s view.
The statutory language here at issue is:
The prevailing party in such an action shall recover its reasonable attorneys’ fees and costs.
Much of the majority opinion concerns whether or not "costs” include all reasonable expenses associated with the litigation, or only the more restricted enumeration of "statutory costs” in
On the other hand, the phrase "reasonable attorneys’ fees” in and of itself may support such an award as well.
I can find no logic in the practice which shifts the cost of a reasonable attorney’s fee when calculated on an hourly rate or contingency to the losing party, but which does not similarly shift the burden of paying those out-of-pocket expenses necessarily incurred. Were such the rule, prevailing parties who were encouraged to litigate by legislative promises of compensation for "reasonable attorneys’ fees” would not be made whole and, in many instances, would not be able to undertake the litigation, much less prosecute it to a successful conclusion. Failure to reimburse expenses would often eat up whatever benefits the litigation might produce and
See Missouri v. Jenkins,
Dissenting Opinion
(dissenting) — I disagree with the majority’s ruling that
Turning first to the language of
Except as provided inRCW 70.105D.040(4)(d) , a person may bring a private right of action, including a claim for contribution or for declaratory relief, against any other person liable underRCW 70.105D.040 for the recovery of remedial action costs .... Recovery shall be based on such equitable factors as the court determines are appropriate. Remedial action costs shall include reasonable attorneys’ fees and expenses. Recovery of remedial action costs shall be limited to those remedial actions that, when evaluated as a whole, are the substantial equivalent of a department-conducted or department-supervised remedial action. . . . An action under this section may be brought after remedial action costs are incurred but must be brought within three years from the date remedial action confirms cleanup standards are met or within one year of May 12, 1993, whichever is later. The prevailing party in such an action shall recover its reasonable attorneys’ fees and costs.
(Emphasis added.)
The reference to "attorneys’ fees and expenses” and "attorneys’ fees and costs” relate to two different aspects of the cost recovery process. Overall, the statute allows a party who initiates a cleanup under the Model Toxics Control Act (MTCA) to bring a cause of action against other responsible parties to recover "remedial action costs” incurred in the cleanup. The first portion of
The legislative history of the statute supports this analysis. House Staff Counsel explained the provisions of
[t]here is one difference, actually a couple, one very minor and then one additional sentence in this bill [Senate Bill 5404] compared to the House Bill .... The sentence which starts "the prevailing party in such an action shall recover its attorneys’ fees and costs . . .” is one added element to the Senate Bill to make it very clear that as part of the action the prevailing party, that is, the party that wins the proceeding, can recover their attorneys’ fees.
Majority at 598-99 (quoting Asarco’s Br. at 22).
House Staff Counsel went on to explain the relevance of adding that sentence and how it is different from the previous reference to "attorneys’ fees and expenses.”
remedial action costs shall include attorneys’ fees and expenses, and I think the concern here is that there may be two stages in the process; one is where you may need attorneys to do the remedial action, and then you may also need an attorney for the contribution action, the lawsuit. And so the second sentence was added there to make it very clear that if you have to file a lawsuit to obtain your attorneys’ fees, or to obtain your remedial action costs, those attorneys’ fees can also be recovered.
Majority at 599 (quoting Asarco’s Br. at 22).
The legislative history reveals that the recovery of "attorneys’ fees and expenses” and "attorneys’ fees and costs” relate to different aspects of the cost recovery process, respectively being those costs associated with the remedial action and litigation. The statute should be interpreted to effect these separate and distinct purposes.
Thus, the language of the statute and the statute’s legislative history clearly indicate that a prevailing party in a cost recovery action will recover only its attorneys’ fees and costs incurred pursuant to the action. Contrary to the analysis by the majority, the reference to "expenses” does not relate to the cost recovery action, it only relates to the overall "remedial action costs” incurred pursuant to the site cleanup.
Finally, Washington case law does not support the recovery of expenses beyond attorneys’ fees and statutory costs in this case. Washington courts follow the American rule concerning attorneys’ fees and litigation expenses which states that "fees and expenses are not recoverable absent specific statutory authority, contractual provision, or recognized grounds in equity.” Wagner v. Foote,
The majority, however, cites Blair v. Washington State Univ.,
Our decision in Blair, however, was a limited ruling applying only to civil rights cases. Since our ruling in Blair we have continued to follow the American rule and have explained that "[c]ivil rights cases stand as an exception to [the] rule.” Hume v. American Disposal Co.,
The policies underlying civil rights statutes do not exist in a private cost recovery action and, thus, an expanded recovery of additional expenses is not warranted. In civil rights cases this court was concerned, among other things, about making it financially feasible to litigate civil rights violations and to encourage attorneys, by fully compensating them, to take these cases where the litigants are often poor and the judicial remedies are often nonmonetary. See Blair,
For these reasons I respectfully dissent, finding that an award of additional expenses beyond attorneys’ fees and
Gxjy and Alexander, JJ., concur with Madsen, J.
Those costs recoverable pursuant to
"(1) Piling fees;
"(2) Pees for the service of process ....
"(3) Fees for service by publication;
"(4) Notary fees ....
"(5) Reasonable expenses, exclusive of attorneys’ fees, incurred in obtaining reports and records, which are admitted into evidence at trial or in mandatory arbitration in superior or district court. . .
"(6) Statutory attorney and witness fees; and
"(7) To the extent that the court or arbitrator finds that it was necessary to achieve the successful result, the reasonable expense of the transcription of depositions used at trial or at the mandatory arbitration hearing . . . .”
Since our ruling in Blair v. Washington State Univ.,