Phoenix Insurance Co. v. Michelsen Packaging Co., et al

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
THE PHOENIX INSURANCE
COMPANY, a foreign Corporation,
Appellant,
v.
MICHELSEN PACKAGING
COMPANY, a Washington corporation;
NORTHWEST WHOLESALE
INCORPORATED, a Washington
corporation, and DOES 1-20,
Respondents.
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No. 36414-3-III
UNPUBLISHED OPINION
KORSMO, J. — A wildfire broke out near Wenatchee, causing extensive damage to
homes and businesses, including Blue Bird, Inc. Phoenix Insurance Company (Phoenix),
Blue Bird’s insurer, brought suit against neighboring businesses Northwest Wholesale
Incorporated (NW Wholesale) and Michelsen Packaging Company (Michelsen), alleging
that defendants negligently caused the fire to spread to Blue Bird’s property. The
superior court granted summary judgment in favor of defendants. Finding insufficient
evidence that defendants breached a duty to Blue Bird, we affirm.
FILED
FEBRUARY 6, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 36414-3-III
Phoenix Ins. Co. v. Michelsen Pkg. Co., et al
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FACTS AND PROCEDURAL HISTORY
We state the facts in the light most favorable to Phoenix. Mohr v. Grantham, 172
Wn.2d 844, 859, 262 P.3d 490 (2011).
Blue Bird and Michelsen operated fruit packaging businesses on nearby parcels of
real property in Wenatchee. Michelsen leased its property from NW Wholesale.
Michelsen stored shrink-wrapped stacks of recycled cardboard and paper packing
materials on its property.
On the afternoon of June 28, 2015, an arsonist started a wildfire in Chelan County
northwest of Wenatchee. The fire quickly spread and ultimately burned 2,950 acres,
destroying 30 homes and 4 businesses. The Blue Bird and Michelsen properties were
located approximately one mile east and downwind of the outer edge of the main
conflagration.
Shortly after 9:14 p.m. on June 28, Wenatchee Police observed that several pallets
of compressed cardboard on the Michelsen property were on fire, and that the fire was
spreading toward neighboring properties. Later that night, the Blue Bird property caught
fire and sustained substantial damage.
Phoenix, as subrogee for Blue Bird, brought an action in the Chelan County
Superior Court against Michelsen and NW Wholesale for negligence and private nuisance,
alleging that Michelsen’s storage practices caused the fire to spread to Blue Bird’s

No. 36414-3-III
Phoenix Ins. Co. v. Michelsen Pkg. Co., et al
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premises.1 Michelsen moved for summary judgment. In support, Michelsen submitted a
declaration from Fire Marshal Mark Yaple. Yaple had previously conducted fire safety
inspections of Michelsen’s property and had determined that Michelsen’s combustible
material storage practices complied with the International Fire Code and Wenatchee City
Code, and that Michelsen had received and complied with required storage permits.
In opposition, Phoenix submitted a declaration from Albert Simeoni, an expert in
fire science. Simeoni opined that by storing stacks of flammable material close together,
Michelsen created a foreseeable fire hazard. Michelsen moved the court to strike the
declaration, arguing it was based on speculation and lacked personal knowledge. The
court denied the motion.
The court granted summary judgment for Michelsen on causation grounds. The
court held that Michelsen owed a duty to prevent its property from becoming a fire
hazard, but that Phoenix presented insufficient evidence of causation. All parties
appealed. A panel considered the case without oral argument.
ANALYSIS
The parties present the issues of whether Simeoni’s declaration is admissible, and
whether Phoenix’s claims should survive summary judgment on duty, breach, and
causation grounds. We hold that Phoenix has failed to raise a genuine issue of material
1 Because Blue Bird’s claims against NW Wholesale are derivative of their claims
against Michelsen, we hereinafter refer to respondents collectively as “Michelsen.”

No. 36414-3-III
Phoenix Ins. Co. v. Michelsen Pkg. Co., et al
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fact as to whether Michelsen breached a duty. The issue of breach being dispositive, we
do not address the other issues.
We review de novo an order granting summary judgment. Mohr, 172 Wn.2d at
859. Summary judgment is appropriate if “there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). In
order to survive summary judgment, the nonmoving party must identify specific facts that
rebut the moving party’s contentions. Seven Gables Corp. v. MGM/UA Entm’t Co., 106
Wn.2d 1, 13, 721 P.2d 1 (1986). The nonmoving party may not rely on an expert’s
conclusory assertions unsupported by specific facts. Id. We may affirm the trial court on
any ground supported by the record. LaMon v. Butler, 112 Wn.2d 193, 200-201, 770
P.2d 1027 (1989).
A negligence plaintiff must prove 1) defendant owed a duty, 2) defendant
breached that duty, 3) plaintiff suffered an injury, and 4) defendant’s breach caused the
injury. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 127-128, 875 P.2d
621 (1994). Generally, persons have a duty to use reasonable care to avoid causing
physical harm to others. See Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 608, 257 P.3d
532 (2011) (quoting RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL &
EMOTIONAL HARM § 7(a) (AM. LAW INST. 2010)). Breach, therefore, is the failure to
exercise reasonable care. However, a defendant’s duty of care extends only to
foreseeable risks of harm. J.N. by & Through Hager v. Bellingham Sch. Dist. No. 501, 74

No. 36414-3-III
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Wn. App. 49, 57, 871 P.2d 1106 (1994). Defendant’s compliance with industry custom is
not determinative, but is evidence that defendant exercised reasonable care. Ranger Ins.
Co. v. Pierce County, 164 Wn.2d 545, 553-554, 192 P.3d 886 (2008). Whether a party
has breached its duty is ordinarily a question for the finder of fact, but may be determined
as a matter of law when reasonable minds could not differ. See Charlton v. Toys “R”
Us—Delaware, Inc., 158 Wn. App. 906, 912-915, 246 P.3d 199 (2010).
Assuming, without holding, that Michelsen had a duty to maintain its property to
avoid creating a fire hazard,2 Phoenix has not raised a genuine issue of fact that
Michelsen breached that duty. Michelsen presented evidence that it exercised reasonable
care by following industry custom—its storage practices complied with local regulations
and permit requirements, and had been approved by the fire marshall. The only evidence
Phoenix presented in opposition was the declaration of Albert Simeoni, who opined
without explanation or support that Michelsen’s storage practices created a foreseeable
fire hazard. This conclusory statement fails to rebut Michelsen’s evidence that it
exercised reasonable care, and thus fails to create a question of fact. From the evidence
2 See Prince v. Chehalis Sav. & Loan Ass’n, 186 Wn. 372, 375-377, 58 P.2d 290
(1936), adhered to on reh’g en banc, 186 Wn. 372, 61 P.2d 1374 (1936) (property owner
was liable in negligence when he allowed his building to become a fire hazard, and the
building caught fire and spread to neighboring property).

No. 36414-3-111
Phoenix Ins. Co. v. Michelsen Pkg. Co., et al
presented, a reasonable fact finder could not have concluded that Michelsen failed to
exercise reasonable care.3
CONCLUSION
Even if the fire on the Michelsen property caused Blue Bird's damages, Michelsen
was not negligent. The judgment of the trial court is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
3 Because Phoenix's nuisance claim is based on the same theory of negligence, it
shares the same fate. See Atherton Condo. Apartment-Owners Ass 'n Bd. ofDirectors v.
Blume Dev. Co., 115 Wn.2d 506, 527, 799 P.2d 250 (1990).
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