applying nonconstitutional harmless error standard to improper admission of hearsay evidence
How later courts described this case
- applying nonconstitutional harmless error standard to improper admission of hearsay evidence
- denying Fluor's CR 59 motion for a new trial or amended judgment and holding that the awards in question were supported by the evidence and therefore not the result of passion or prejudice as a matter of law
- appellants cannot raise issues for the first time on appeal because it deprives the appellate courts of an adequate record on review
- "The error [of admitting improper hearsay] is harmless unless it was reasonably probable that it changed the outcome of the triaL"
Written by the judges who cited it.
The opinion
Sanders, J.
¶55 (concurring in part, dissenting in part) — I concur with the majority except for the denial of the pipe fitters’s reasonable out-of-pocket litigation expenditures. The statutory entitlement to reasonable attorney fees necessarily includes reasonable out-of-pocket litigation expenditures.
¶56 “In any action in which any person is successful in recovering judgment for wages or salary owed to him, reasonable attorney’s fees, in an amount to be determined by the court, shall be assessed against said employer or former employer.” RCW 49.48.030. This “remedial statute . . . must be construed to effectuate its purpose.” Int’l Ass’n of Fire Fighters, Local 46 v. City of Everett, 146 Wn.2d 29, 41 , 42 P.3d 1265 (2002). The purpose of this statute is to make the successful plaintiff whole. See Hayes v. Trulock, 51 Wn. App. 795 , 755 P.2d 830 (1988).
¶57 To make successful plaintiffs whole, “ ‘reasonable attorney fees’ must, by necessity, contemplate expenses other than merely the hours billed by an attorney.” Panorama Vill. Condo. Owners Ass’n Bd. of Dirs. v. Allstate Ins. Co., 144 Wn.2d 130, 144 , 26 P.3d 910 (2001); see also La.-Pac. Corp. v. Asarco, Inc., 131 Wn.2d 587, 605-06 , 934 P.2d 685 (1997) (Sanders, J., concurring) (noting any distinction “between compensation for the attorney’s time and reimbursement for the attorney’s out-of-pocket expense (or reimbursement to the client who has previously paid the out-of-pocket expenses) is artificial and illusory”). Litigation often necessitates a client to make sizeable out-of-pocket expenditures, as essential to success as the intellectual acumen of the attorney. For example, paralegal services, supplemental secretarial services, and an attorney’s out-of-town travel are integral to the ultimate success of *460 litigation. What we knew in practice we must not forget as judges.
¶58 We recognize this reality of litigation in other circumstances. In civil rights litigation this court awards prevailing plaintiffs their out-of-pocket expenditures because such awards act “to further the policies underlying” civil rights legislation. Blair v. Wash. State Univ., 108 Wn.2d 558, 573-74 , 740 P.2d 1379 (1987); see also Missouri v. Jenkins, 491 U.S. 274, 285 , 109 S. Ct. 2463 , 105 L. Ed. 2d 229 (1989). Similar to civil rights litigation, there is a strong public policy protecting the pipe fitters. Fluor fired the pipe fitters for refusing to install underrated valves that could cause nuclear contamination. The pipe fitters acted to protect against both environmental and public harm. As such they should completely recover from Fluor’s retaliatory acts.
¶59 The majority notes the pipe fitters’ costs account for only 3 percent of the pipe fitters’s total award. Majority at 458. However, the percentage is irrelevant; whether reasonable out-of-pocket litigation expenses are available is a categorical determination — either the successful plaintiffs are entitled to expenses or they are not. The majority’s rule would equally apply to the situation where successful plaintiffs incur expenses 300 percent, as well as 3 percent, of their actual recovery. The purpose of RCW 49.48.030 is to make successful plaintiffs whole. The majority fails to effectuate this purpose and holds the pipe fitters are entitled only to partial restoration.
¶60 In the final analysis, denying reasonable out-of-pocket expenses creates a barrier to justice. In a war of attrition, a private party with limited resources will not rationally pursue a Pyrrhic victory. 10 In this case, the total *461 award exceeded out-of-pocket expenses, but in the next case the expenses may exceed the total award. “ ‘Failure to reimburse expenses [may] eat up whatever benefits the litigation might produce and additionally impose a backbreaking burden upon the small, but justified, litigants.’ ” Panorama, 144 Wn.2d at 144 (quoting Asarco, 131 Wn.2d at 606 (Sanders, J., concurring)). Awarding reasonable attorney fees, which include reasonable expenses, ensures the successful plaintiff will not be worse off from successfully enforcing his rights in court.
¶61 The majority cites Hume v. American Disposal Co., 124 Wn.2d 656 , 880 P.2d 988 (1994), as controlling. To the extent Hume denies reasonable out-of-pocket litigation expenditures as part of the award of reasonable attorney fees under RCW 49.48.030, it should be overruled. The law has moved on since Hume . It is incorrect and harmful.
¶62 In sum, the pipe fitters should be awarded litigation expenses as part of those “reasonable attorney’s fees” mandated by RCW 49.48.030.
¶63 I dissent.
Reconsideration denied October 24, 2008.
A “Pyrrhic victory” is an allusion to King Pyrrhus of Epirus in the battle of Asculum against the Romans in 280 BC. Six thousand Roman soldiers were killed, but so were over three thousand of Pyrrhus’s soldiers. When congratulated on the victory Pyrrhus replied that another such victory would undue him. Plutarch, The Lives of the Noble Grecians and Romans, in Great Books of the Western World 325 (Robert Maynard Hutchins ed., Encyclopedia Britannica, Inc., 1952).