* David Nichols, Et Al., Appellants V. Thd At-home Services, Inc., Et Al., Respondents

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DAVID NICHOLS and SYLVIA NICHOLS,
husband and wife; SHYANNE
NICHOLS/WILLIS; ZACHARIAH
NICHOLS/WILLIAMS; and BENJAMIN
NICHOLS,
No. 47685-1-II
ORDER GRANTING
Appellants, MOTION TO PUBLISH
v.
PETERSON NW, INC., a Washington
Corporation and Registered Contractor,
Respondent,
And
THD AT-HOME SERVICES, INC., a foreign
corporation, d/b/a THE HOME DEPOT AT-
HOME SERVICES, a Washington State
Registered Contractor; TRAVELERS
CASUALTY & SURETY COMPANY,
BOND NO. 104010723; SLOAN
CONSTRUCTION, LLC, a Washington
Limited Liability Company and Registered
Contractor, JACOB RIOS, d/b/a MODERN
HOME IMPROVEMENTS, a Washington
State sole proprietor; and DOE
DEFENDANTS 1 through 10,
Defendants.
The appellants filed a motion to publish the opinion filed on October 25, 2016. After
review, it is hereby
ORDERED that the appellants’ motion to publish is granted. It is further
ORDERED that the final paragraph, which reads as follows, shall be deleted: A majority
of the panel having determined that this opinion will not be printed in the Washington Appellate
Filed
Washington State
Court of Appeals
Division Two
January 24, 2017
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No. 47685-1-II
2
Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. It is
further
ORDERED that this opinion is now published.
IT IS SO ORDERED.
Panel: Jj. Bjorgen, Johanson, Maxa
DATED this ___24th______day of _________January_____________________, 2017.
BJORGEN, C.J.
We concur:
JOHANSON, J.
MAXA, J.
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Filed
Washington State
Court of Appeals
Division Two
January 24, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DAVID NICHOLS and SYLVIA NICHOLS,
husband and wife; SHYANNE
NICHOLS/WILLIS; ZACHARIAH
NICHOLS/WILLIAMS; and BENJAMIN
NICHOLS,
No. 47685-1-II
ORDER GRANTING
Appellants, MOTION TO PUBLISH
v.
PETERSON NW, INC., a Washington
Corporation and Registered Contractor,
Respondent,
And
THD AT-HOME SERVICES, INC., a foreign
corporation, d/b/a THE HOME DEPOT AT-
HOME SERVICES, a Washington State
Registered Contractor; TRAVELERS
CASUALTY & SURETY COMPANY,
BOND NO. 104010723; SLOAN
CONSTRUCTION, LLC, a Washington
Limited Liability Company and Registered
Contractor, JACOB RIOS, d/b/a MODERN
HOME IMPROVEMENTS, a Washington
State sole proprietor; and DOE
DEFENDANTS 1 through 10,
Defendants.
Moving parties Holgate Street Properties LLC and Star Ice and Fuel Inc. have filed a
motion to publish the opinion in this matter, which was filed on October 25, 2016. After review,
it is hereby
ORDERED that Holgate Street Properties LLC and Star Ice and Fuel Inc.’s motion to
publish the opinion filed on October 25, 2016 is granted. It is further
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No. 47685-1-II
4
ORDERED that the final paragraph, which reads as follows shall be deleted: A majority
of the panel having determined that this opinion will not be printed in the Washington Appellate
Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. It is
further
ORDERED that this opinion is now published.
IT IS SO ORDERED.
Panel: Jj. Bjorgen, Johanson, Maxa
DATED this __24th___ day of __________January______________________, 2017.
BJORGEN, C.J.
We concur:
JOHANSON, J.
MAXA, J.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DAVID NICHOLS and SYLVIA NICHOLS,
husband and wife; SHYANNE
NICHOLS/WILLIS; ZACHARIAH
NICHOLS/WILLIAMS; and BENJAMIN
NICHOLS,
No. 47685-1-II
UNPUBLISHED OPINION
Appellants,
v.
PETERSON NW, INC., a Washington
Corporation and Registered Contractor,
Respondent,
And
THD AT-HOME SERVICES, INC., a foreign
corporation, d/b/a THE HOME DEPOT AT-
HOME SERVICES, a Washington State
Registered Contractor; TRAVELERS
CASUALTY & SURETY COMPANY,
BOND NO. 104010723; SLOAN
CONSTRUCTION, LLC, a Washington
Limited Liability Company and Registered
Contractor, JACOB RIOS, d/b/a MODERN
HOME IMPROVEMENTS, a Washington
State sole proprietor; and DOE
DEFENDANTS 1 through 10,
Defendants.
BJORGEN, C.J. — David and Sylvia Nichols appeal the trial court’s ruling granting
summary judgment in favor of Peterson Northwest Inc. and dismissing their negligence claim
Filed
Washington State
Court of Appeals
Division Two
October 25, 2016
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No. 47685-1-II
6
against Peterson. The parties dispute the following issues: (1) whether the Nichols timely
appealed the dismissal of their negligence claim against Peterson; (2) whether the statute of
limitations bars the Nichols’ negligence claim; (3) whether the trial court erred in concluding that
Peterson did not owe an independent tort duty to the Nichols for its participation in constructing
a new roof on their home; and (4) whether the Nichols provided evidence to create a genuine
issue of material fact as to each element of their negligence claim.
We hold that (1) the Nichols timely appealed the trial court’s ruling because it was not a
final appealable judgment until after the trial court’s decision on the motion for reconsideration;
(2) the Nichols have raised genuine issues of material fact as to whether the discovery rule would
toll the statute of limitations and permit their negligence claim; (3) the trial court erred in
concluding that Peterson did not owe an independent tort duty to the Nichols related to its work
on the Nichols’ roof; and (4) the Nichols have raised genuine issues of material fact on their
negligence claim as to breach, proximate cause, and damages.
Accordingly, we reverse and remand.
FACTS1
In 2001, the Nichols purchased a residence in Shelton and lived there with their four
children. In 2006, the Nichols noticed a leak in their roof and decided to replace it, contracting
with Home Depot to install the new roof. Home Depot hired various subcontractors to perform
the work, including Peterson.
1 Because the Nichols are the nonmoving party, we view the evidence in the light most favorable
to them. Peoples v. Puget Sound’s Best Chicken!, Inc., 185 Wn. App. 691, 695, 345 P.3d 811
(2015).
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No. 47685-1-II
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On October 9, 2006, Peterson went to the Nichols’ home and removed the existing roof
and shingles. Peterson also installed flashing, made cuts into the roof peak for ridge vents, and
installed felt underneath the shingles. After completing their work, Peterson employees left the
roof exposed to the wind and rain. The Nichols called Home Depot and complained, and the
company sent an employee to tarp the roof. Home Depot also removed Peterson from the job.
Working with other subcontractors, Home Depot completed the roof’s construction.
On December 7, 2011, David2 went up to the attic and found white patches of mold and
wet wood. The mold posed a health hazard and required the Nichols to move out of their home.
The Nichols sued Home Depot, Peterson, and other subcontractors that had worked on their roof.
The specific claim against Peterson was for negligent performance of work that caused personal
injuries, property damage, and loss of use. Vince McClure, the Nichols’ construction defect
expert, opined that the improper installation of the roof and water exposure caused the extensive
damage and mold growth in their home. Physician statements and medical records suggested
that some of the Nichols’ children had suffered various skin infections related to being exposed
to the mold as well as mental trauma from disruption in their living situation.
Home Depot moved for partial summary judgment on the Nichols’ claims. Of relevance
to this appeal, Home Depot argued that Washington does not recognize a cause of action for
negligent construction and that the Nichols’ negligence claim was barred under the independent
duty doctrine. Home Depot also argued that there was no evidence to support special damages
for medical expenses as to the Nichols’ children. Peterson joined in Home Depot’s motion for
partial summary judgment to the extent it was applicable to it. In addition to Home Depot’s
2 We refer to David and Sylvia Nichols by their first names to avoid confusion in this opinion.
We intend no disrespect.
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No. 47685-1-II
8
arguments, Peterson argued that the Nichols’ negligence claim was time barred and that there
was no evidence to support the element of proximate cause.
The trial court granted summary judgment in favor of Home Depot on the Nichols’
negligence claim on the basis that no independent duty existed apart from the contract. Although
Peterson had joined in Home Depot’s motion for summary judgment on the grounds that it owed
no independent duty to the Nichols, the trial court never directly addressed the issue as it
pertained to Peterson. The trial court denied Peterson’s summary judgment motion on the issue
of proximate cause, “except as otherwise set forth above with relation to defendant [The Home
Depot].” Report of Proceedings (RP) at 56. At this point, it was unclear whether a negligence
claim against Peterson still existed.3 After the summary judgment rulings, Home Depot and the
Nichols settled, and Home Depot is not part of this appeal.
Peterson moved the trial court for reconsideration, arguing that the only claim left against
it was a Consumer Protection Act (CPA)4 claim, which the Nichols had failed to establish. The
Nichols contended that they never alleged any CPA claim. At the hearing on reconsideration,
Peterson asked the court to dismiss it from the case, since there were no remaining claims against
it. The Nichols objected to dismissing Peterson from the case, arguing that their negligence
claim still remained. After hearing argument, the trial court stated that its earlier ruling on the
parties’ summary judgment motions had only dismissed the negligence claim as to Home Depot.
However, the court reconsidered its position and granted the motion for summary judgment in
Peterson’s favor as it related to negligence.
3 The trial court’s written orders on the summary judgment motions provide no further
clarification on this matter.
4 Chapter 19.86 RCW.
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No. 47685-1-II
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The Nichols appeal.
ANALYSIS
I. STANDARD OF REVIEW
“We review de novo an order granting summary judgment, performing the same inquiry
as the trial court.” Peoples v. Puget Sound’s Best Chicken!, Inc., 185 Wn. App. 691, 695, 345
P.3d 811 (2015). “A party moving for summary judgment bears the initial burden of showing
the absence of an issue of material fact.” Kofmehl v. Baseline Lake, LLC, 177 Wn.2d 584, 594,
305 P.3d 230 (2013). “We view the evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences from the evidence in that party’s favor.” Puget Sound’s Best
Chicken!, 185 Wn. App. at 695. “Summary judgment is appropriate where the ‘pleadings,
depositions, answers to interrogatories, and admissions on file,’ along with any affidavits, show
that no material issues of fact exist and that the moving party is entitled to judgment as a matter
of law.” Id. (quoting CR 56(c)).
“We review a trial court’s denial of a motion for reconsideration for abuse of discretion,
that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable
reasons.” River House Dev. Inc. v. Integrus Architecture, PS, 167 Wn. App. 221, 231, 272 P.3d
289 (2012). “A decision is manifestly unreasonable if the trial court takes a view that no
reasonable person would take.” Clipse v. Commercial Driver Servs., Inc., 189 Wn. App. 776,
787, 358 P.3d 464 (2015), review denied, 185 Wn.2d 1017 (2016). “[A] trial court’s decision
rests on untenable grounds or reasons if the trial court applies the wrong legal standard or relies
on unsupported facts.” Id. If the trial court’s decision to grant or deny reconsideration is
“contrary to law,” the trial court has abused its discretion. Singleton v. Naegeli Reporting Corp.,
142 Wn. App. 598, 612, 175 P.3d 594 (2008) (citing CR 59(a)(7).
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No. 47685-1-II
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II. REVIEWABILITY
Peterson argues that the Nichols failed to timely appeal the trial court’s initial summary
judgment ruling, which precludes appellate review. We disagree.
Generally, a notice of appeal must be filed within 30 days of the entry of a final
appealable judgment. RAP 5.2(a); Fox v. Sunmaster Prod., Inc., 115 Wn.2d 498, 502, 798 P.2d
808 (1990). The trial court’s summary judgment order was dated April 3, 2015, and its order
granting reconsideration in favor of Peterson was dated May 11. The Nichols filed their notice
of appeal on June 9. Peterson maintains that because the Nichols did not appeal the summary
judgment order within the 30 day time limit, it is barred from raising any issues pertaining to the
summary judgment rulings.
However, the trial court’s summary judgment order was not a final appealable judgment.
In cases involving multiple parties or multiple claims for relief,
an appeal may be taken from a final judgment that does not dispose of all the claims
or counts as to all the parties, but only after an express direction by the trial court
for entry of judgment and an express determination in the judgment, supported by
written findings, that there is no just reason for delay. . . . In the absence of the
required findings, determination and direction, a judgment that adjudicates less than
all the claims or counts, or adjudicates the rights and liabilities of less than all the
parties, is subject only to discretionary review until the entry of a final judgment
adjudicating all the claims, counts, rights, and liabilities of all the parties.
RAP 2.2(d); see also CR 54(b).
Not until the reconsideration stage did the trial court clearly dismiss the negligence claim
as to Peterson. Thus, only at that time were all claims adjudicated. Furthermore, the trial court
made no determination that there was no just reason for delay, which may have made the
summary judgment order an immediately appealable judgment under RAP 2.2(d). It was not
until the trial court’s reconsideration order, at which time all claims were resolved, that the 30-
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No. 47685-1-II
11
day appeal period began. Because the Nichols timely appealed the trial court’s reconsideration
decision, Peterson’s claim fails.5
III. STATUTE OF LIMITATIONS
Peterson argues that the statute of limitations bars the Nichols’ negligence claim because
they should have discovered the water intrusion within the limitations period. We disagree,
because the Nichols raise a genuine issue of material fact as to whether the discovery rule tolls
the statute of limitations in this situation.
“The statute of limitations begins to run when the plaintiff’s cause of action accrues.”
Mayer v. City of Seattle, 102 Wn. App. 66, 75, 10 P.3d 408 (2000) (citing RCW 4.16.005). A
cause of action accrues when every element of an action is susceptible to proof. Woods View II,
LLC v. Kitsap County, 188 Wn. App. 1, 20, 352 P.3d 807, review denied, 184 Wn.2d 1015
(2015). In many instances an action accrues immediately when a wrongful act occurs, but in
some circumstances, a plaintiff can be unaware of the harm until a later time. 1000 Virginia Ltd.
P’ship v. Vertecs Corp., 158 Wn.2d 566, 575, 146 P.3d 423 (2006). To prevent an injustice in
these instances, courts may apply the discovery rule. Id.
Under the discovery rule, a cause of action accrues when the plaintiff discovers, or in the
reasonable exercise of diligence should discover, the salient facts underlying the cause of
action’s elements. Id. The diligence element of this test raises a question of fact, unless
reasonable minds could reach but one conclusion. Burns v. McClinton, 135 Wn. App. 285, 300,
143 P.3d 630 (2006).
5 Peterson also argues that “the law of the case” doctrine bars the Nichols from arguing the
validity of their negligence claim against it on appeal. Br. of Resp’t at 5-6. However, because
this case involves neither a prior appellate decision nor jury instructions, see Lutheran Day Care
v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992), the law of the case doctrine is
inapplicable. Accordingly, this argument fails.
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No. 47685-1-II
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Peterson’s alleged negligent actions that led to water intrusion occurred in 2006. The
Nichols sued in 2012. CP at 831. Without tolling the applicable statutes of limitations,6 the
Nichols’ negligence claim against Peterson would be time barred. Peterson contends that the
Nichols should have discovered water intrusion earlier because Sylvia admits that she observed
the roof deck being exposed to rain after Peterson failed to tarp the roof. However, Sylvia also
states that she did not witness any water intrusion at the time. She believed that Home Depot’s
tarp over the roof solved any concern about water intrusion. The Nichols provided evidence that
it was not until 2011, when David went into the attic and observed mold, that they noticed any
water intrusion. In looking at these facts in the light most favorable to the Nichols, they have
raised a genuine issue of material fact as to whether the exercise of reasonable diligence would
have informed them sooner about the water intrusion into their home.
Accordingly, Peterson’s claim based on the statute of limitations fails.
IV. NEGLIGENCE
“‘In order to recover on a common law claim of negligence, a plaintiff must show (1) the
existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the
breach as the proximate cause of the injury.’” Wuthrich v. King County, 185 Wn.2d 19, 25, 366
P.3d 926 (2016) (quoting Lowman v. Wilbur, 178 Wn.2d 165, 169, 309 P.3d 387 (2013)).
The Nichols argue that the trial court erred in concluding that Peterson did not owe an
independent tort duty for its work on their roof. For the reasons discussed below, we agree that
the trial court erred in this determination. Peterson argues separately, however, that we can
6 Negligence claims for personal injury are subject to a three-year statute of limitations. RCW
4.16.080(2); Woods View II, LLC, 188 Wn. App. at 20. Negligence claims for injury to real
property are subject to a two-year statute of limitations. RCW 4.16.130; Wolfe v. Dep’t of
Transp., 173 Wn. App. 302, 306, 293 P.3d 1244 (2013).
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No. 47685-1-II
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affirm the trial court because the Nichols failed to create genuine issues of material fact as to
each element of their negligence claim: breach, proximate cause, and damages. We disagree
and hold that the Nichols raised genuine issues of material fact as to each of these elements.
Accordingly, the Nichols have raised genuine issues of material fact to support a legal claim for
negligence against Peterson.
1. Independent Tort Duty
The Nichols argue that the trial court abused its discretion in reconsidering its position
and granting summary judgment in favor of Peterson on the basis that it owed no independent
tort duty to them. We agree with the Nichols.
“The independent duty doctrine, previously known as the economic loss rule, bars
recovery in tort for economic losses suffered by parties to a contract unless the breaching party
owed a duty in tort independent of the contract.” Pointe at Westport Harbor Howmeowners’
Ass’n v. Eng’rs Nw., Inc. 193 Wn. App. 695, 702-03, 376 P.3d 1158 (2016). “‘The test is not
simply whether an injury is an economic loss arising from a breach of contract, but rather
whether the injury is traceable also to a breach of a tort law duty of care arising independently of
the contract.’” Id. at 703 (quoting Eastwood v. Horse Harbor Found., Inc., 170 Wn.2d 380, 394,
241 P.3d 1256 (2010)). We review de novo whether such an independent tort duty exists, and if
it does exist, the scope of that duty. Id.
In the context of a defective construction case, there is no independent tort duty to avoid
risk of economic loss, “defined as a mere defect in the bargained-for quality.” Eastwood, 170
Wn.2d at 395 (citing Stuart v. Coldwell Banker Commercial Grp., Inc., 109 Wn.2d 406, 420, 745
P.2d 1284 (1987)). In Stuart, the defendant company built condominiums with decks and
walkways that deteriorated in quality because of the weather. Id. at 421. Based on the economic
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No. 47685-1-II
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loss rule, the Stuart court held, in part, that the plaintiffs were limited to contractual remedies
because the damages were only to the decks and walkways themselves. See Id. at 420-21. In its
reasoning, Stuart distinguished between damages that are solely economic losses and damages
from physical harm or property damage:
Defects of quality are evidenced by internal deterioration, and designated as
economic loss, while loss stemming from defects that cause accidents involving
violence or collision with external objects is treated as physical injury.
Id. at 420. Citing this distinction in Stuart, our Supreme Court stated that a builder has “an
independent duty to avoid unreasonable risks of harm to persons and other property.” Eastwood,
170 Wn.2d at 395.
This rule was applied in Jackson v. City of Seattle, 158 Wn. App. 647, 659-660, 244 P.3d
425 (2010), where Division One of our court held that the plaintiffs had a cause of action for
negligent installation of a waterline pipe. The manner in which the pipe had been installed
created conditions increasing the risk of landslide. Id. at 650-51. A landslide eventually
occurred, which damaged the plaintiff’s house and landscaping. Id. at 651. Citing Stuart, the
Jackson court distinguished between economic losses that would be limited to only the waterline
pipe itself and losses related to persons and other property:
Under Stuart, Jackson’s loss was not an “economic” loss. An economic
loss is a defect of quality as evidenced by internal deterioration. But when a loss
stems “from defects that cause accidents involving violence or collision with
external objects,” that is a physical injury susceptible of a tort remedy. Stuart, 109
Wn.2d at 420. If the new waterline had not functioned properly and had to be
reinstalled or fixed, that would be an economic loss. But the waterline itself worked
as anticipated. Jackson's loss was damage to his house and landscaping, caused by
the violent occurrence of the landslide—an event allegedly precipitated by the
defective condition in which the contractors left the hillside.
Id. at 659-60 (footnote omitted).
In the present case, the Nichols alleged that Peterson’s failure to lay a tarp and its
involvement in constructing the roof led to water intrusion into their home, causing water
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No. 47685-1-II
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damage and mold in parts of the home that Peterson did not work on. The mold’s toxicity
allegedly caused personal injuries to the Nichols’ children. The Nichols do not seek relief in tort
for the defective construction of the roof itself; rather, they seek such relief because Peterson’s
actions ostensibly caused property and personal injuries beyond the scope of the economic losses
associated with the roof itself. Under the case law above, Peterson owed an independent duty to
avoid these unreasonable risks of harm to persons and other property. Eastwood, 170 Wn.2d at
395; Stuart, 109 Wn.2d at 420.
Peterson argues that the Nichols’ claim should be limited to its contract with Home
Depot, or alternatively, that its contract with Home Depot absolves them from an independent
tort duty toward the Nichols. This argument fails. The risks related to economic losses from the
roof construction itself were allocated by the contracts between the Nichols and Home Depot as
well as between Home Depot and Peterson. If the Nichols only alleged harms limited to, for
example, the aesthetic characteristics or quality of the roof, Peterson would be correct that the
Nichols only have a contractual remedy. The Nichols cannot be limited to contractual remedies,
though, when a roof’s construction creates a risk of harm to other real property or personal
injury. Stuart, 109 Wn.2d at 420; see also Pointe at Westport Harbor, 193 Wn. App. at 704-05.
Like the defendants in Jackson, Peterson owed a separate duty to avoid unreasonable risks of
harm to persons and other property when it worked on the roof. Accordingly, the trial court
erred in concluding that Peterson owed no such duty.
2. Breach
Peterson argues that even if it had a duty to avoid unreasonable risks of harm to persons
and other property, the Nichols failed to provide “substantial evidence” that Peterson violated
this duty. We disagree.
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No. 47685-1-II
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First, we are not required to find substantial evidence of a breach of duty; rather, on
summary judgment, we examine whether, given the applicable law, the Nichols have provided
evidence to raise genuine issues of material fact. CR 56(c). In looking at the evidence in the
light most favorable to the Nichols, Sylvia stated that she witnessed Peterson install “the wrong
flashing [and] repeatedly made incorrect cuts” in their roof. CP at 453. She also observed that
Peterson “left the roof exposed to rain and wind.” CP at 453. McClure, the Nichols’
construction expert, opined that the failure to protect the roof and the roof’s improper
construction led to water intrusion into the home. Physician statements and medical records
show that the mold injured the Nichols’ children. The Nichols’ evidence raises a genuine issue
of material fact as to whether Peterson breached its duty.
Peterson contends that Sylvia’s declaration is the only evidence that Peterson was
involved in the construction of the roof and that it is insufficient to raise a genuine issue of fact
as to whether Peterson worked on it. However, other evidence supports Sylvia’s observations.
For example, Peterson’s work order for the Nichols’ home contains orders for shingles, flashing,
and soffit vents. Peterson is correct that its bill to Home Depot might provide some evidence to
the contrary. With conflicting evidence, though, the fact finder must decide and resolve whether
Peterson was involved in constructing the Nichols’ roof. Thus, Peterson’s claim fails because
the Nichols have created a genuine issue of material fact as to whether Peterson breached its
duty.
3. Proximate Cause
Peterson contends that even if it breached its duty to the Nichols, they failed to create a
genuine issue of material fact as to whether its negligence proximately caused damage to the
home. We disagree.
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No. 47685-1-II
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“Proximate cause has two elements: cause in fact and legal causation.” McCarthy v.
Clark County, 193 Wn. App. 314, 329, 376 P.3d 1127 (2016). “Cause in fact exists when ‘but
for’ the defendant's actions, the claimant would not have been injured.” Id. Cause in fact
generally is a factual question for the jury. Id. However, cause in fact may be decided as a
matter of law, if the facts and inferences from them are plain and not subject to reasonable doubt
or difference of opinion. Martini v. Post, 178 Wn. App. 153, 164-65, 313 P.3d 473 (2013).
The Nichols’ evidence creates a genuine issue of material fact on the issue of proximate
cause. Sylvia’s declaration claims that she witnessed Peterson fail to tarp their roof as well as
improperly install roof flashing. McClure opined that water intrusion in the home, referencing
both the failure to properly protect the roof and improper installation of flashing, caused
extensive damage to their home. Sylvia’s declaration and McClure’s expert opinion raise a
genuine issue of fact as to whether but for some of Peterson’s actions and/or omissions, the
Nichols’ home would not have suffered water damage.
Peterson argues that Sylvia’s declaration contradicts her earlier deposition, making the
evidence insufficient to raise a genuine issue of material fact on the issue of proximate cause.
Specifically, Peterson points to the following exchange in Sylvia’s deposition:
Question: Okay. And did the tarping over the roof solve your concern?
Sylvia: At the time, yes, because I didn’t see any intrusion into the
house.
Question: . . .[S]o is it correct, there was no water intrusion into the house due
to the roof not being tarped?
Sylvia: Not that we know of. We didn’t witness it.
CP at 693.
This portion of Sylvia’s deposition does not contradict her later declaration. Sylvia’s
declaration states that the roof was exposed to rain—not that she also saw water intrusion into
the home. Furthermore, a “later declaration should be considered in light of other evidence
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No. 47685-1-II
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presented in the case to determine whether sufficient evidence raises a factual issue.” State Farm
Mut. Auto. Ins. Co. v. Treciak, 117 Wn. App. 402, 408, 71 P.3d 703 (2003). Even if her
deposition were somewhat contradictory to her declaration, McClure pointed to the roof’s
exposure to rain as part of the reason for the water intrusion. Examining this evidence in the
light most favorable to the Nichols, their evidence creates a genuine issue of material fact
whether the failure to protect the roof caused water intrusion into the home.
Peterson also argues that there is no evidence that its involvement in the construction
contributed to the water intrusion into the Nichols’ home. McClure opines, though, that the
improper installation of flashing, which Peterson is alleged to have helped install, contributed to
the water intrusion. Like the claim for failure to tarp, it will be a question for the fact finder
whether Peterson’s contribution to the construction process proximately caused the harm that the
Nichols suffered.
Accordingly, the Nichols have raised a genuine issue of material fact as to whether
Peterson’s actions and/or omissions proximately caused the water intrusion into their home.
4. Damages
Peterson argues that the Nichols have failed to provide evidence that creates a genuine
issue of material fact on damages. We disagree.
The only issue related to damages raised to the trial court concerned special damages for
medical expenses incurred for treatment of the Nichols’ children. At the summary judgment
stage, Home Depot and Peterson did not dispute damages related to the Nichols’ home. “On
review of an order granting or denying a motion for summary judgment the appellate court will
consider only evidence and issues called to the attention of the trial court.” RAP 9.12. In
addressing only whether there is evidence to support special damages for medical expenses, the
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No. 47685-1-II
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Nichols have created a genuine issue of material fact. They provided evidence that their children
suffered personal injuries caused by the mold growth and mental anguish related to the
disruption of having to move out of their home.
Peterson argues that, even if there is evidence of damages, the Nichols will receive a
double recovery because Home Depot settled for the same claims the Nichols are alleging
against Peterson. However, this issue was not brought before the trial court, and we decline to
address it on review of summary judgment. RAP 9.12. While it is true that Home Depot and the
Nichols settled only after the trial court’s initial summary judgment rulings, Peterson was aware
of the settlement and had an opportunity to raise the double recovery issue when it moved for
reconsideration. See CR 59(a)(4), (7).
Accordingly, Peterson’s claims related to damages fail.
CONCLUSION
We hold that (1) the Nichols timely appealed the trial court’s ruling because a final
appealable judgment was only reached with the trial court’s reconsideration decision; (2) the
Nichols have created a genuine issue of material fact as to whether the discovery rule would toll
the statute of limitations and permit their negligence claim; (3) the trial court erred in concluding
that Peterson did not owe an independent tort duty to the Nichols for its participation in
constructing a new roof on their home; and (4) the Nichols have raised genuine issues of material
fact on their negligence claim as to breach, proximate cause, and damages. Accordingly, we
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No. 47685-1-II
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reverse the trial court and remand for proceedings consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
BJORGEN, C.J.
We concur:
MAXA, J.
JOHANSON, J.
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