IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

WASHINGTON STATE DEPARTMENT OF 

TRANSPORTATION, 

Plaintiff, No. 51025-1-II

v.

SEATTLE TUNNEL PARTNERS, a joint 

venture; TUTOR PERINI CORP.; and 

DRAGADOS USA, INC.,

Defendant. UNPUBLISHED OPINION

SEATTLE TUNNEL PARTNERS, a joint 

venture, 

Third Party Plaintiff/Respondent,

v.

HITACHI ZOSEN U.S.A., LTD., a Delaware 

corporation; HITACHI ZOSEN CORP., a 

foreign corporation; and HNTB CORP., a 

Delaware corporation.

Third Party Defendants.

Filed

Washington State

Court of Appeals

Division Two

February 5, 2019
No. 51025-1-II

2

HITACHI ZOSEN U.S.A., LTD., a Delaware 

corporation, 

Fourth Party Plaintiff,

v.

FIDELITY AND DEPOSIT COMPANY OF 

MARYLAND; ZURICH AMERICAN 

INSURANCE COMPANY; LIBERTY 

MUTUAL INSURANCE COMPANY; 

TRAVELERS CASUALTY AND SURETY 

COMPANY OF AMERICA; FEDERAL 

INSURANCE COMPANY; and SAFECO 

INSURANCE COMPANY OF AMERICA,

Fourth Party Defendants.

HITACHI ZOSEN U.S.A. LTD., a Delaware 

corporation, 

Plaintiff,

v.

WASHINGTON STATE DEPARTMENT OF 

TRANSPORTATION and SHANNON & 

WILSON, INC., 

Defendants.

SEATTLE TUNNEL PARTNERS, a joint 

venture, 

Plaintiff/Respondent,

v.

SHANNON & WILSON, INC., a Washington 

corporation; and WSP USA, Inc., formerly 

known as PARSONS BRINCKERHOFF, INC.,

a New York corporation,

Defendants/Petitioners.
No. 51025-1-II

3

SUTTON, J. — In early 2011, Washington State Department of Transportation (WSDOT) 

contracted with Seattle Tunnel Partners (STP), Respondent, to construct an underground bored 

tunnel in Seattle. In December 2013, during excavation of the tunnel, the boring machine 

encountered the steel casing of an abandoned test well and could not continue its progress. 

WSDOT filed suit against STP for breach of contract related to the stoppage. STP investigated 

the boring machine’s trouble and ultimately brought a counterclaim suit against WSDOT, in part, 

for failing to disclose the well. Six months later, STP filed suit against Shannon and Wilson 

(S&W) and WSP USA, Inc.1(Collectively, “Appellants”).

On discretionary review, Appellants appeal the superior court’s denial of their joint motion 

for summary judgment dismissal of STP’s negligence and implied indemnity claims against them. 

Appellants argue that all of STP’s claims against Appellants are barred by the three-year statute of 

limitations. STP responds that the discovery rule applied to toll the statute of limitations on its 

negligence claims because STP was unable to determine the necessary facts regarding causation 

until after it had completed its investigation into the boring machine’s breakdown. STP also 

responds that Appellants never properly challenged STP’s implied indemnity claims and therefore,

the issue is not preserved for appeal. 

We agree with Appellants that the superior court erred by denying their motion for 

summary judgment of STP’s negligence claims. However, we also hold that Appellants failed to 

sufficiently challenge STP’s implied indemnity claims before the superior court. Consequently, 

we reverse in part and remand for further proceedings.

 

1 WSP USA, Inc. was formerly known as Parsons Brinckerhoff, Inc. 
No. 51025-1-II

4

FACTS

I. BACKGROUND

In 2001, WSDOT engaged WSP, an engineering and design firm, as a consultant to assist 

in the process of evaluating the repair or replacement of the Alaskan Way Viaduct. As part of its 

contract with WSDOT, WSP engaged S&W, a Seattle based geotechnical engineering firm, to 

conduct geologic profile logs, groundwater pumping tests, and to prepare technical memoranda 

relating to the Alaskan Way Viaduct replacement alternatives and related geotechnical issues. 

Between 2001 and 2010, WSP and S&W conducted various investigative field explorations. In 

2002, they installed a pumping well identified as Test Well 2 (TW-2). TW-2 had an eight-inch 

steel casing. 

In 2009, WSDOT determined that a bored underground tunnel stretching approximately 

1.7 miles long and 57 feet in diameter was the best option for the viaduct replacement project. In 

2010, S&W and WSP jointly issued a geotechnical baseline report (GBR) for the tunnel project. 

The purpose of the GBR was for “[s]etting the baseline subsurface site conditions expected to be 

encountered in the performance of the [w]ork.” Clerk’s Papers (CP) at 1011. S&W additionally 

prepared a Geotechnical and Environmental Data Report, the stated purpose of which was to 

“present[] geotechnical and environmental data collected for the current and previous alignments 

of the project.” CP at 1022.

In January 2011, WSDOT and STP entered into a design-build contract to execute the 

tunnel plan. As part of the contract, STP procured a tunnel boring machine (TBM). STP 

commissioned the TBM through Hitachi Zosen U.S.A., Ltd. (Hitachi). STP launched the TBM

and started boring the tunnel on July 30, 2013. 
No. 51025-1-II

5

On approximately December 4, 2013, STP employees observed that a hollow steel casing 

had emerged from the surface of the project site, directly above the TBM. The TBM continued 

tunneling, but the advance rate slowed and the temperature of the TBM rose until, on 

approximately December 6, STP stopped the TBM to investigate. That same day, Juan Luis 

Magro, a construction manager for STP, e-mailed other employees of STP about the problem, 

acknowledging that the TBM had encountered steel casings. He observed, “the extension of the 

damages in the cutterhead and/or screw conveyor produced by encountering these steel art[i]facts 

is unknown at this point, although it is a given that there will be some.” CP at 893. 

On December 9, STP project manager Chris Dixon sent an e-mail to STP’s chief executive 

officer, stating:

Matt Preedy just informed us that the obstruction encountered by the TBM 

is an 8 inch diameter steel pipe, 160 feet long, that was used by WSDOT as an 

observation well on a previous alignment.

We hit it right where WSDOT left it in the ground.

The [differing site condition2] has been identified.

We (WSDOT and STP) have been receiving media questions all day about 

why [the TBM] is stopped and what [the TBM] has encountered.

It will be interesting to see how WSDOT responds to these questions now 

that the obstruction has been identified.

CP at 872.

WSP seemed less sure as to what had caused the stoppage. On December 10, a WSP 

engineer responded, “[n]o one knows,” when a WSP colleague asked “what’s going on?” CP at 

1198. 

 

2 Differing site condition, as defined in the design-build contract.
No. 51025-1-II

6

On December 12, 2013, STP wrote a letter to WSDOT explaining that STP was beginning 

an investigation into the cause of the stoppage. STP explained that it had learned on December 9

that the TBM had encountered an 8-inch diameter steel pipe that WSDOT installed in 2002. The 

letter stated:

In the event that the encountering of this pipe is determined to be, upon the 

completion of STP’s investigation, the cause for the stoppage in tunneling and/or 

the cause for an increase in STP’s cost and time for performance, STP hereby 

reserves its right to request a Change Order to provide an extension of the 

Completion Deadlines and an increase in compensation.

CP at 866. That same day, e-mails between WSP engineers stated that theories as to why the TBM 

had stopped were “[a]ll speculative.” CP at 1203. 

On December 17, WSDOT wrote to STP identifying the steel pipe the TBM encountered

as part of the casing for TW-2. On December 31, STP wrote to WSDOT describing the steel that 

had been removed from the TBM and the ground surface during investigation into the stoppage. 

Dixon explained that “there is almost sixty (60) feet of this pipe remaining below ground surface. 

It appears that this remaining length of this pipe is the obstruction that is preventing STP from 

advancing the TBM, resulting in the current stoppage to tunneling.” CP at 920.

In mid-December, STP prepared a “TBM Stoppage Report” hypothesizing that “there is an 

obstruction preventing the normal operations of the machine. The obstructions may be in front of 

the TBM, within the cutterhead of the TBM or both.” CP at 943. The report stated:

Out of the 119 ft length of 8 inches diameter and 1⁄4” inch thick TW-2 well 

left in place, only 50 ft were removed from the surface and two chunks of 2-3 ft 

length were screwed by the conveyors inside the machine. So over 65 ft of steel 

pipe are still between the excavation chamber in chunks and/or in a mess in front 

of the cutterhead. 
No. 51025-1-II

7

Regardless of the TBM blockage, the damage that the steel may have 

created to the TBM components is still unknown. 

CP at 943. The report went on to identify that the obstruction in front of the TBM “may be 

anything” including several large boulders, a giant boulder, or steel manmade objects such as the 

identified steel well casing. CP at 943. The report also identified the obstructions within the TBM 

included, but were not limited to, steel entangled on and within the cutterhead, large boulders, and 

cobbles. The report concluded that the combination of obstructions in front of and within the 

cutterhead was the most reasonable theory as to the problems encountered by the TBM. 

On January 11, 2014, STP laid out its plan to resume tunneling. The plan explained that 

STP had learned that the TBM had stopped after running through an abandoned investigation well 

made of steel, and that the first step in its plan to resume tunneling was to “[t]ry to retrieve what 

is left of the well casing TW-2 and/or any other potential obstruction in front of the cutterhead, 

preventing the TBM from mining, and putting the TBM in risk[.]” CP at 903-04.

On January 15, STP wrote to WSDOT responding to questions about the tunnel project. In 

response to WSDOT’s question regarding the potential causes of the damage to the cutting tools, 

STP responded:

We have found again normal wear and tear in some of the Precutting Bits 

replaced from within the cutterhead arms at atmospheric conditions since the TBM 

stopped during the excavation of ring #149. However, some other Precutting Bits 

have been dramatically damaged by what we classify as impact with man-made 

obstructions, such as steel, following a clear pattern in the cutterhead for localized 

damage. We believe that the 8 inch diameter well casing left in place is the most 

likely cause for such serious damage.

STP was informed of the well casing’s existence by WSDOT six days after 

the well casing was encountered by the TBM. It appears that a portion of the casing 

may have remained jammed right in front of the cutterhead during the last 12 rings 

of excavation and damaged the cutting tools during cutterhead rotation as the TBM 

moved forward.
No. 51025-1-II

8

The TBM and its cutting tools were never designed to break up and mine 

through steel.

While it is true that the initial launch of the TBM mined through concrete, 

boulders and cobbles, all of which accelerated the wear on some cutters, requiring 

them to be changed at Safe Haven #2, once the TBM entered native ground the 

ground conditions encountered are not considered sufficiently abrasive to cause the 

level of damage observed on some of the Precutting bits, as discussed above. We 

believe that the steel pipe is the primary cause of the damage to the cutting tools.

CP at 1269 (emphasis added).

An internal WSDOT memorandum created the following week questioned STP’s 

conclusions about the impact of the steel well casing on the TBM. The memo noted:

There has been much discussion related to the 8 inch diameter well casing 

encountered at Ring 137 on December 3 and the likely impact. At most 60 ft of 

pipe could have been ingested based on total casing length, less the amount 

removed from the surface. While the TBM is not designed for excavation of steel 

pipe, the 3/8 inch thick wall would present little challenge for a TBM cutterhead 

designed to mine 30,000 psi compressive strength rock boulders up to 8 ft in 

diameter. Impact damage to cutter carbides inserts is possible, as it is with strong 

boulders; however, other than local damage to cutters no permanent damage would 

be anticipated or has been revealed. Furthermore, after encountering the pipe the 

TBM advanced another 11 rings (or about 58 ft) before stopping on December 6 at 

Ring 149. During the advance of these 11 rings, no significant changes in the TBM 

performance were experienced until the last few rings (from about Ring 147 on).

CP at 1217.

On January 28, 2014, STP restarted the TBM and mined the remainder of Ring 149. The 

next day, STP noticed an increase in temperatures. After determining that several seals in the 

TBM’s outer chambers had broken, STP shut it down indefinitely on February 2, 2014. 

II. PROCEDURAL FACTS

On October 9, 2015, WSDOT filed suit against STP in King County Superior Court for 

breach of the design-build contract related to the December 2013 TBM stoppage. WSDOT alleged 

that STP was at fault for the TBM’s malfunction. The superior court dismissed the case for lack 
No. 51025-1-II

9

of jurisdiction, based on the jurisdiction selection clause of the design-build contract, which 

designated Thurston County as having exclusive jurisdiction. In March 2016, WSDOT refiled its 

claims against STP in Thurston County Superior Court. 

On July 6, 2016, STP answered and filed a counterclaim against WSDOT, alleging that 

WSDOT failed to adequately disclose TW-2 in the contract documents. STP also initiated a thirdparty complaint against Hitachi and HNTB Corporation, the designers and manufacturers of the 

TBM, alleging that they were alternatively liable for damages related to the TBM stoppage. 

Hitachi and HNTB filed counter claims for breach of contract against STP. 

Six months later, on January 26, 2017, STP filed a complaint against S&W. The following 

day, STP filed an amended complaint adding WSP as a defendant. STP alleged three causes of 

action for professional negligence, negligent misrepresentation, and indemnification for “Third 

Party Incurred Costs” and “Third Party Claims.” CP at 301. As damages for its negligence claims, 

STP sought a money judgment for damages “from hitting TW-2 (including direct physical property 

damage to the TBM and the resulting impacts and delays).” CP at 303. 

On August 4, S&W filed a motion for summary judgment, which WSP joined, to dismiss 

STP’s complaint as untimely pursuant to the three-year statute of limitations applicable to tort 

claims.3, 4 During argument on the summary judgment motion, STP conceded that it identified 

TW-2 as a potential cause of the TBM stoppage almost immediately. However, the parties 

disputed when STP had sufficient knowledge of causation to trigger the statute of limitations. STP 

 

3 RCW 4.16.080.

4 The joint motion does not explicitly address STP’s indemnity claims but requests that STP’s 

complaint be dismissed in its entirety. 
No. 51025-1-II

10

argued that its indemnity claims should survive summary judgment regardless of the superior 

court’s determination on the statute of limitations for the tort claims. S&W and WSP did not 

address the indemnity issues at the summary judgment hearing. 

After hearing argument, the superior court entered an order denying S&W’s and WSP’s 

joint motion for summary judgment. It concluded that S&W and WSP met their burden with 

respect to establishing STP’s knowledge of duty, breach, and damages, but that “there are material 

factual issues in dispute as to whether STP had factual knowledge as to the causation element prior 

to February of 2014.” Report of Proceedings (RP) (9-1-17) at 49. The superior court did not 

specifically address the indemnity claims. S&W and WSP timely moved for reconsideration of 

the superior court’s order under CR 59(a)(7) and (9), but the superior court denied their motion. 

Appellants S&W and WSP moved this court for discretionary review of the superior court’s 

denial of their joint motion for summary judgment and reconsideration. A commissioner of our 

court considered the superior court’s decision denying summary judgment of the tort claims and

granted review. Ruling Granting Review (Wash. Ct. App. Mar. 6, 2018). The commissioner’s 

decision focused exclusively on the tort claims, but granted review of the indemnity claims “in the 

spirit of judicial economy.” Ruling Granting Review at 14. 

ANALYSIS

Summary judgment is only appropriate if “‘there is no genuine issue as to any material 

fact’ and ‘the moving party is entitled to a judgment as a matter of law.’” Walston v. Boeing Co., 

181 Wn.2d 391, 395, 334 P.3d 519 (2014) (quoting CR 56(c)). “The appellate court engages in 

the same inquiry as the trial court, with questions of law reviewed de novo and the facts and all 

reasonable inferences from the facts viewed in the light most favorable to the nonmoving party.” 
No. 51025-1-II

11

Christensen v. Grant County. Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004). 

“[W]hen reasonable minds could reach but one conclusion, questions of fact may be determined 

as a matter of law.” Clare v. Saberhagen Holdings, Inc., 129 Wn. App. 599, 603, 123 P.3d 465 

(2005).

I. NEGLIGENCE CLAIMS

Appellants argue that the superior court erred by denying their motion for summary 

judgment because the record clearly shows that STP had sufficient knowledge that TW-2 was 

responsible for the TBM stoppage as early as December 2013 and no later than January 15, 2014, 

and therefore, STP’s claims were barred by the statute of limitations. STP argues that the discovery 

rule tolled the statute of limitations because STP did not have sufficient knowledge of the cause 

of the TBM’s damage until February 2014. We agree with Appellants. 

Typically, tort claims are subject to a three-year statute of limitations. RCW 4.16.080. The 

statutory period begins to run as soon as the plaintiff’s cause of action accrues and the plaintiff has 

the right to apply to a court for relief. Gazija v. Nicholas Jerns Co., 86 Wn.2d 215, 219, 543 P.2d 

338 (1975). For a tort claim, the requisite elements include: a duty the defendant owes to the 

plaintiff, a breach of that duty by the defendant, causation, and damages. Green v. A.P.C., 136 

Wn.2d 87, 95, 960 P.2d 912 (1998). In negligence actions, an aggrieved party need not know the 

full amount of damage sustained before a cause of action accrues; it need only know that some 

actual and appreciable damage occurred. First Maryland Leasecorp v. Rothstein, 72 Wn. App. 

278, 285, 864 P.2d 17 (1993). 

“The discovery rule provides that a cause of action does not accrue until an injured party 

knows, or in the exercise of due diligence should have discovered, the factual bases of the cause 
No. 51025-1-II

12

of action.”

5

 Beard v. King Cty., 76 Wn. App. 863, 867, 889 P.2d 501 (1995). A party who has 

notice of facts that are sufficient to put it upon inquiry notice is deemed to have notice of all facts 

that a reasonable inquiry would disclose. Green, 136 Wn.2d at 96. “[N]otice sufficient to excite 

attention and put a person on guard, or to call for an inquiry is notice of everything to which such 

inquiry might lead.” Am. Sur. Co. of N.Y. v. Sundberg, 58 Wn.2d 337, 344, 363 P.2d 99 (1961). 

The discovery rule aims to avoid the injustice of having a statute of limitation terminate 

legal remedies before the claimant knows he has been injured. Beard, 76 Wn. App. at 867. Under 

this rule, “the plaintiff bears the burden of proving that the facts constituting the claim were not 

and could not have been discovered by due diligence within the applicable limitations period.” 

Clare, 129 Wn. App. at 603. 

Here, even taking the evidence in the light most favorable to STP, the record shows that 

STP had sufficient notice of TW-2’s role in the TBM’s damage by January 15, 2014. As early as 

December 6, 2013, the day of the TBM stoppage and two days after a steel well casing emerged 

from the ground above the TBM, a construction manager for STP recognized that the TBM had 

encountered steel casings and that “it [was] a given” that there would be some resulting damage 

to the TBM. CP at 893. By December 9, the STP project manager e-mailed STP’s chief executive 

officer explaining that the steel casing that the TBM hit was part of an old observation well. In his 

e-mail, the project manager claimed, “We hit it right where WSDOT left it in the ground. . . . the 

obstruction has been identified.” CP at 872. 

 

5

“Due diligence” is not at issue in this case. “The question of due diligence is only material when 

a party should have known the essential facts of a cause of action.” Beard v. King County., 76 Wn. 

App. 863, 867 n.2, 889 P.2d 501 (1995). Here, Appellants argue that STP had actual knowledge

of the essential facts. 
No. 51025-1-II

13

In a series of correspondence between STP and WSDOT between the date of the December 

6, 2013 stoppage and early January, STP routinely identified the steel casings from TW-2 as the 

likely source of the obstruction. The mid-December TBM Stoppage Report prepared by STP 

identifies that the TBM had encountered TW-2 and ingested some steel. While the stoppage report 

hypothesized that the extent of damages to the cutterhead and further obstruction of the TBM could 

be exacerbated by additional roadblocks such as boulders, the stoppage report affirmatively 

identified TW-2 as a contributing source of the TBM’s troubles. 

By January 15, 2014, STP stated, “We believe that the 8 inch diameter well casing left in 

place is the most likely cause for such serious damage,” and concluded that “the steel pipe is the 

primary cause of the damage to the cutting tools.” CP at 1269. It is indisputable that by January 

15, 2014, at the latest, STP knew that the factual elements of its claims against Appellants existed, 

thus its claims accrued at that point, and the statute of limitations began running. 

STP argues that there are genuine issues of material fact as to when it became sufficiently 

aware of the cause of the TBM’s stoppage, and relies heavily on internal correspondence between 

S&W, WSP, and WSDOT consultants, all of whom had an interest in mitigating TW-2’s role in 

the stoppage. However, the issue here is what STP knew, not what other parties believed. 1000 

Virginia Ltd. P’ship v. Vertecs Corp., 158 Wn.2d 566, 576, 146 P.3d 423 (2006) (“the action 

accrues when the plaintiff discovers the salient facts underlying the elements of the cause of action”

(emphasis added)). 

STP also argues that the statute of limitations was tolled until it determined whether TW2 was the “true cause” of the TBM stoppage. Br. of Resp’t at 17-18. STP contends that this case 

is similar to 1000 Virginia, 158 Wn.2d 566. There, our Supreme Court held that the discovery 
No. 51025-1-II

14

rule should apply to contract claims involving latent construction defects that the plaintiff would 

be unable to detect at the time of the breach. 1000 Virginia, 158 Wn.2d at 578-79. STP contends 

that 1000 Virginia stands for the idea that a claim cannot accrue if various potential causes of 

damage exist. STP is mistaken. The 1000 Virginia court focused on situations in which “the 

defect was of a kind that the [plaintiff] would simply never know or have reason to know of the 

defect or that it would cause detectable damage years later.” 1000 Virginia, 158 Wn.2d at 580 

(emphasis added).

1000 Virginia involved a situation in which the tortfeasing subcontractor initially misled 

the general contractor by telling it that the defects were outside the scope of its work and attributed 

the damage to other issues. 158 Wn.2d at 571-72. The court explained:

There is little to distinguish a case involving latent defects in a building and 

a case where a surgical instrument is left in the plaintiff’s body during surgery. In 

both cases, the plaintiff may have no way of knowing that a cause of action exists, 

i.e., no way of knowing the facts that show that the construction contract was 

breached in the first case or that a duty of care was breached in the latter.

1000 Virginia, 158 Wn.2d at 579.

Here, in contrast, the record shows that STP became aware of a problem with the TBM 

around the time the initial TBM stoppage occurred on December 6, 2013. Further, the record 

shows that STP identified TW-2 as “the primary cause of the damage” by January 15, 2014. CP 

at 1269. Neither the fact that STP initially considered the possibility that there may have been 

additional contributing factors to the TBM’s damage nor that it continued its investigation of the 

stoppage beyond January 15, alters that it had sufficient notice for its claims to accrue. “A person 

who has notice of facts that are sufficient to put him or her upon inquiry notice is deemed to have 

notice of all facts that reasonable inquiry would disclose.” 1000 Virginia, 158 Wn.2d at 581.
No. 51025-1-II

15

Further, the fact that WSDOT, S&W, and WSP disputed TW-2’s role in the TBM stoppage 

and damage does not trigger a tolling of the statute of limitations. STP implies that 1000 Virginia

stands for the proposition that any time the parties dispute the cause of the alleged damage, 

summary judgment is inappropriate. We do not read 1000 Virginia so broadly. 

We agree with Appellants that Beard is the more applicable case. In Beard, Division One 

of our court held that the statute of limitations period begins to run when the factual elements of a 

cause of action exist and the injured party knows or should know they exist, even if the party 

cannot yet conclusively prove the tortious conduct has occurred. Beard, 76 Wn. App. at 868. 

There, the plaintiffs suspected the defendant’s wrongful conduct in 1989 but did not obtain proof 

until 1992. Beard, 76 Wn. App. at 868-69. Nonetheless, Beard held that the discovery rule did 

not apply to extend the commencement of the limitation period beyond 1989. Beard, 76 Wn. App. 

at 868-69. 

The court explained:

A smoking gun is not necessary to commence the limitation period. An injured 

claimant who reasonably suspects that a specific wrongful act has occurred is on 

notice that legal action must be taken. At that point, the potential harm with which 

the discovery rule is concerned—that remedies may expire before the claimant is 

aware of the cause of action—has evaporated.

Beard, 76 Wn. App. at 868. Similarly here, the potential harm that the discovery rule seeks to 

avoid is absent. 

Even taking the evidence in the light most favorable to STP, the record shows that STP 

suspected that TW-2 caused the TBM’s damage as early as December 9, 2013, and had concluded 

TW-2 was the primary cause of the stoppage by January 15, 2014. The record is inconsistent with 

STP’s contention that it did not know what caused the stoppage until February 2014. The record 
No. 51025-1-II

16

shows that STP had sufficient knowledge that its cause of action against Appellants had accrued 

by January 15, 2014, at the latest, and thus, the superior court erred in denying Appellants’ motion 

for summary judgment dismissal of STP’s negligence claims, which were not filed until January 

26, 2017. 

II. IMPLIED INDEMNIFICATION

STP argues that we should decline to consider Appellants’ arguments regarding implied 

indemnity on appeal because Appellants failed to properly challenge the indemnity claims before 

the superior court. We agree. 

“‘It is the responsibility of the moving party to raise in its summary judgment motion all 

of the issues on which it believes it is entitled to summary judgment.’” Davidson Serles & Assocs. 

v. City of Kirkland, 159 Wn. App. 616, 637, 246 P.3d 822 (2011) (quoting White v. Kent Med. 

Ctr., Inc., 61 Wn. App. 163, 168, 810 P.2d 4 (1991)). When the moving party raises new issues 

in its rebuttal materials, the nonmoving party has no opportunity to fully respond, and therefore it 

is improper. Davidson Serles, 159 Wn. App. at 637. Even where a moving party requests dismissal 

of all of the nonmoving party’s claims, if the motion for summary judgment does not address one 

of the nonmoving party’s claims, dismissal of that claim is erroneous. Davidson Serles, 159 Wn. 

App. at 638.

Appellants’ motion for summary judgment asserted that all of STP’s claims against them 

are barred by the three year statute of limitations, RCW 4.16.080. However, Appellants focused 

their motion and argument entirely on STP’s tort claims and did not address STP’s implied 

indemnity claims. Only in their reply on summary judgment did Appellants make any argument 
No. 51025-1-II

17

that the indemnity claims should be dismissed because they were indistinct from the negligence 

claims and were otherwise barred by the Tort Reform Act of 1981. 

At the hearing on the motion for summary judgment, Appellants did not address the 

indemnity claims whatsoever. In its response at the hearing, STP briefly addressed “this whole 

indemnity kerfuffle;” Appellants did not respond. RP (9-1-17) at 39. Consistent with Appellants’ 

written and oral argument, the superior court’s order denying summary judgment did not 

specifically address STP’s indemnity claims. 

Appellants argue that they did sufficiently challenge the alleged indemnity claims before 

the superior court by challenging the timeliness of STP’s negligence claims because STP’s alleged

implied indemnity claims are indistinct from STP’s negligence claims. Appellants acknowledge 

that Washington courts have recognized that implied indemnity claims are separate and distinct 

causes of action from the underlying wrong. See Opening Br. of Appellant WSP at 29 (referencing 

Cent. Wash. Refrigeration, Inc. v. Barbee, 133 Wn.2d 509, 946 P.2d 760 (1997)). However, 

Appellants contend that the penultimate issue here is not whether a party may bring an implied 

indemnity claim separate from its negligence claims, but rather whether in this case STP has 

actually pleaded distinct implied indemnity claims. 

We hold that Appellants insufficiently made this argument before the superior court. 

Because Appellants failed to adequately challenge STP’s implied indemnity claims in their motion 

for summary judgment, we cannot consider whether the superior court’s denial of summary 

judgment dismissal of those claims was erroneous, and consequently, whether the alleged implied 

indemnity claims remain intact. Because we cannot consider whether the superior court’s denial 

of summary judgment dismissal of the implied indemnity claims was erroneous, discretionary 
No. 51025-1-II

18

review of this issue was improvidently granted. See RAP 2.3(b)(1); See also RAP 7.3 (“The 

appellate court has the authority to determine whether a matter is properly before it, and to perform 

all acts necessary or appropriate to secure the fair and orderly review of a case.”). 

In summary, we hold that the superior court erred by denying Appellants’ motion for 

summary judgment of STP’s negligence claims, but that summary judgment dismissal of STP’s 

implied indemnity claims is not properly before us. Consequently, we reverse in part and remand 

in part. Upon remand, Appellants are entitled to make arguments on implied indemnity to the 

superior court. See White, 61 Wn. App. at 169. 

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.

SUTTON, J.

We concur:

WORSWICK, P.J.

MELNICK, J.