IN THE COURTOFAPPEALS OFTHE STATE OFWASHINGTON

LINDACAMERON forHerselfand as 

### ) Personal Representativeforthe Estate 

### ) No. 76663-5-I ofGARY R. CAMERON, Deceased, 

### ) ) DIVISION ONE Appellant,
v. 

### ) PUBLISHED OPINION ATLANTIC RICHFIELD COMPANY 

### ) a/k/aARCO; ASBESTOS CORP., 

### ) LTD.; CBS CORPORATION, f/k/a 

### ) Westinghouse ElectricCorporation; 

### ) CROWN CORK& SEAL COMPANY, 

### ) INC.; FOSTERWHEELER ENERGY 

### ) CORPORATION; GENERAL 

### ) ELECTRIC COMPANY; LONE STAR 

### ) INDUSTRIES, INC.; METROPOLITAN 

### ) LIFE INSURANCE COMPANY; 

### ) SABERHAGEN HOLDINGS, INC.; 

### ) and TRANSALTACENTRALIA GENERATION LLC, 

### )

Defendants, 

### )

) PACIFICORP, dba Pacific 

### ) Power& LightCompany, 

### ) ) FILED: May 13, 2019 Respondent. 

### )

_________________________________________________________________________________)No. 76663-5-I I2
LEACH, J.

— Gary Cameron died in 2012 of mesothelioma caused by asbestos exposure. Gary’s wife, Linda Cameron,1 appeals a summaryjudgment dismissing her claims against PacifiCorp, one of the companies she claims exposed Gary to asbestos. She challenges the trial court’s conclusion that the six-year construction statute of repose,2 which applies to improvements on real property, barred her claims. Cameron asserts thatthe current statute of repose applies and does not bar her claims. But the date of substantial completion of construction provides the operative date for application of the statute. Here, substantial completion occurred in 1972, so the 1967 version of the statute applies and bars her claims arising from construction activities but not those arising from PacifiCorp’s status as a premises owner. We affirm in part, reverse in part, and remand forfurtherproceedings. FACTS The parties do not dispute the following facts. Pacific Power & Light Company, PacifiCorp’s predecessor (together, “PacifiCorp”), and seven other utility companies sponsored construction ofthe Centralia Steam Plant (Plant) in the 1970s. PacifiCorp contracted with Bechtel Corporation for engineering and construction management and for construction of the Plant. In 1970, Bechtel hired Owens Corning Fiberglass to install thermal insulation materials at the
1 For purposes of clarity, we use Gary Cameron’s first name and Linda Cameron’s surname.

2 RCW4.16.300, .310. -2-No. 76663-5-I /3

PTant. Asbestos was installed as part ofthe insulation; From April 26, 1971, to December 3, 1971, Gary Cameron worked at the Plant as a boilermaker. Construction finished in 1972. PacifiCorp retained its ownership interest in the Plant until 2000. Gary was exposed to asbestos over the course of his career. He was diagnosed with mesothelioma in March 2012 and died in September 2012. Cameron sued PacifiCorp and others, claiming, in part, that a dangerous condition at PacifiCorp’sfacilities injured Gary. PacifiCorp asked thetrial courtto dismiss Cameron’s claims against it on summary judgment. Cameron and PacifiCorp then agreed to address only the statute of repose issue and defer consideration ofthe remaining issues until the completion ofadditional discovery. The trial court granted PacifiCorp’s dismissal request, concluding that the construction statute ofrepose barred Cameron’s claims. Cameron appeals. STANDARD OF REVIEW This court reviews summaryjudgment orders de novo and performs the
same inquiry as the trial court.3 Summary judgment is appropriate when the evidence, viewed in a light most favorable to the nonmoving party, shows no genuine issue of material fact remains and the moving party is entitled to judgmentas a matteroflaw.4

~ Life Designs Ranch, Inc. v. Sommer, 191 Wn. App. 320, 327, 364 P.3d 129 (2015).

~ Life Designs, 191 Wn. App. at327; CR 56(c). -3-No. 76663-5-I /4 Statutory interpretation is a question of law that this court reviews de novo.5 When a statute is unambiguous, a reviewing court gives effect to the plain language ofthestatute.6 ANALYSIS Cameron makes three related claims: that the current version of the construction statute of repose applies to this case, that genuine issues of material factexist aboutwhetherthe statute bars her claims, and that no version of the statute bars her claims arising out of PacifiCorp’s status as a premises
owner. Wedisagreeaboutthefirsttwo claims and agree on thethird one. “A statute of repose terminates the right to file a claim after a specified time even if the injury has not yet occurred.”7 Two statutes comprise the construction statute of repose. RCW 4.16.300 defines the scope ofthe statute and describesthose entitled to claim its protection. RCW4.16.310 defineswhen this statute of repose bars a claim. Together, they barcertain claims arising from construction ofany improvement upon real propertythat have not accrued within sixyears aftersubstantial completion ofconstruction.

5Williamsv. Tilaye, 174Wn.2d 57, 61, 272 P.3d 235 (2012). 6 Parkridge Assocs. v. Ledcor Indus., Inc., 113 Wn. App. 592, 602, 54 P.3d 225 (2002).

~ Wash. State Maior League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt & Nichols-Kiewit Constr. Co., 176 Wn.2d 502, 511, 296 P.3d 821 (2013). -4-No. 76663-5-I I 5

The history ofthis statute of repose bears on the outcome of this case. The legislature first enacted it in 1967.8 In 1986, the legislature amended RCW 4.16.300 to exclude manufacturers from the statute’s protections.9 In 2004, the legislature again amended this statute, this time removing the language about manufacturers and specifically identifying the persons protected bythe statute.1° The 1967version of RCW4.16.300 provided, RCW4.16.300 through 4.16.320 shall applyto all claims or causes of action ofany kind against any person, arising from such person having constructed, altered or repaired any improvement upon real property, or having performed or furnished any design, planning, surveying, architectural or construction or engineering services, or supervision or observation of construction, or administration of construction contracts for any construction, alteration or repair of any improvement upon real propertyJ11i The 1986version provided, RCW4.16.300through 4.16.320 shall applyto all claims orcauses of action ofany kind against any person, arising from such person having constructed, altered or repaired any improvement upon real property, or having performed or furnished any design, planning, surveying, architectural or construction or engineering services, or supervision or observation of construction, or administration of construction contracts for any construction, alteration or repair of any improvement upon real property. This section is intended to benefit onlythose persons referenced herein and shall not applyto claims orcauses ofaction against manufacturers.[121

8 LAWS OF 1967, ch. 75, 

### § 1, 2(formerRCW4.16.300, .310 (1967)).

~ LAWS OF 1986, ch. 305, 

### § 703 (former RCW4.16.300 (1986)). 10 LAWSOF2004, ch. 257, 

### § 1 (RCW4.16.300).

~ LAWS OF 1967, ch. 75, 

### § 1 (former RCW4.16.300 (1967)). 12 LAWS of 1986, ch. 305, 

### § 703 (former ROW 4.16.300 (1986)). The underlined portion representsthe 1986 amendment. -5-No. 76663-5-I I 6
In 2004, the legislature amended both RCW4.16.300 and Laws of 1986, chapter305, section 703. This amendmentchanged the description of the persons protected by the statute: “This section is specifically intended to benefit persons having performed workforwhich the persons must be registered or licensed under RCW 18.08.310, 18.27.020, 18.43.040, 18.96.020, or 19.28.041, and shall not apply to claims or causes of action against persons not required to be so registered or licensed.”13 So the current version of the statute protects only persons registered or licensed as an architect, contractor, engineer or land surveyor, landscape architect, orelectrician.14 The 1967version of RCW4.16.310 provided, All claims or causes of action as set forth in RCW 4.16.300 shall accrue, and the applicable statute of limitation shall begin to run only during the period within six years after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later. The phrase “substantial completion of construction” shall mean the state of completion reached when an improvement upon real property may be used or occupied for its intended use. Anycause ofaction which has not accrued within six years aftersuch substantial completion ofconstruction, orwithin six years aftersuch termination ofservices, whichever is later, shall be barred: Provided, That this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues.1151

13 LAWS OF2004, ch. 257, 

### § 1 (RCW4.16.300). 14 RCW 18.08.310, .27.020, .43.040, .96.020; RCW 19.28.041. 15 LAWSOF 1967, ch. 75, §2(formerRCW4.16.310 (1967)). -6-No. 76663-5-I /7
The 1986 (current) version of RCW4.16.310 provides, All claims or causes of action as set forth in RCW 4.16.300 shall accrue, and the applicable statute of limitation shall begin to run only during the period within sixyears after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later. The phrase “substantial completion of construction” shall mean the state of completion reached when an improvement upon real property may be used or occupied for its intended use. Anycause ofaction which has notaccrued within six years aftersuch substantial completion ofconstruction, orwithin six years aftersuch termination ofservices, whichever is later, shall be barred: Provided, That this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues. The limitations prescribed in this section apply to all claims orcauses ofaction as setforth in RCW4.16.300 brought in the name or for the benefit of the state which are made or commenced afterJune11, 1986.[161 The 1967Version ofthe Construction Statute of ReposeApplies The parties dispute which version of the statute of repose applies to Cameron’s claim. She asserts that the current statute applies. She contends that the date her claim accrued, 2012, determines which version of the statute applies. She also claims thatthe 2004 amendmentto RCW4.16.300 applies to actions filed afterAugust 1, 1986, so the current statute applies. Alternatively, Cameron asserts that RCW4.16.300 applies retroactively. We disagree.

16 LAWS OF 1986, ch. 305, 

### § 702 (former ROW 4.16.310 (1986)). The underlined portion represents the 1986 amendment. In 2002, the legislature added a provision to former ROW 4.16.310 about written notice that is not relevant here. LAWSOF2002, ch. 323, 

### § 9 (RCW4.16.310). -7-No. 76663-5-I /8 First, Cameron relies on Washburn v. Beatt Equipment Co.17 Washburn suffered serious injuries from a 1986 propane fuel system explosion.18 Beatt installed this propane system in 1969. Because our Supreme Court applied the 1986 statute of repose, the statute in effectwhenWashburn’s claim accrued, and not the 1967 version,19 Cameron asserts Washburn shows that the statute in effect when a claim accrues controls. But in Washburn, the issues before the court about the statute of repose concerned whether the pipeline was an “improvement” on real property and whether the contractor qualified as a “manufacturer” ofthe pipeline system; the parties did notcontestwhich version of the statute applied to Washburn’s claim.20 And the Washburn opinion contains
no analysis ofthis issue. While not relied on by Cameron for this issue, two other reported Washington cases applythe statute of repose in effect when the injured party’s claim accrued. In neithercase did the courtanalyzethe issue beforethis court. In Yakima Fruit& Cold Storage Co. v. Central Heating & Plumbing Co.,21 a property owner and lessee sued a contractor for property damage allegedly caused by faulty installation of a refrigeration system substantially completed in 1961. This predated thefirststatute of repose. The refrigeration system failed in 17120Wn.2d 246, 840 P.2d 860 (1992). 18Washburn, 120Wn.2d at252. 19Washburn, 120Wn.2d at252-54. 20Washburn, 120Wn.2d at251, 253-54. 21 81 Wn.2d 528, 529-30, 503 P.2d 108 (1972). -8-No. 76663-5-I I 9

1968. Our Supreme Court applied the 1967 statute, the one in effect when plaintiffs’ claims accrued, to barthe claim.22 No partyclaimed thatthis statute did notapply. And in Pinneo v. Stevens Pass, Inc.,23 the court applied the 1967 statute to a project substantially completed in 1960. Butthe court considered only one issue, whether a ski lift constituted, as a matter of law, “‘an improvement upon real property.”24 No partyclaimed thatthe 1967statute did notapply. The parties have cited onlyoneWashington state courtdecision analyzing the relationship between the statute of repose’s bar, the date ofcompletion, and the date a plaintiff’s claim accrues. In 1000 Virciinia Ltd. Partnership v. Vertecs Corp.,25 decided afterWashburn, Yakima Fruit, and Pinneo, our Supreme Court described an application ofthe statute of repose. It stated, “[l]f, for example, a negligence claim against a contractorarising out ofthe construction ofa building does not accrue until seven years after substantial completion, it is barred by RCW4.16.310 because it did not accrue within the six-year period ofthe statute of repose.”26 In the court’s example, the statute of repose bars a negligence claim before it accrues. This result depends upon the date of substantial completion, not the date the plaintiff’s claim accrues. Because Washburn,

22Yakima Fruit, 81 Wn.2d at529-30. 23 14Wn. App. 848, 545 P.2d 1207 (1976). 24 Pinneo, 14Wn. App. at850 (quoting RCW4.16.300). 25158Wn.2d 566, 575, 146 P.3d 423 (2006). 26 1000Virginia, 158Wn.2d at575. -9-No. 76663-5-I /10

Yakima Fruit, and Pinneo provide no analysis ofthe issue before this court and 1000 Virginia does, we follow that guidance about the operation of a statute of repose. A court looks to the date of substantial completion to determine which version ofthe statute ofrepose applies. Cameron also cites the principle that a court “look[s] to the subject matter regulated by the statute and considers its plain language to determine the precipitating ortriggering event.”27 RCW4.16.310 statesthat itdoes notapplyto “anyowner, tenantorotherperson in possession and control ofthe improvement at the time such cause of action accrues.” She maintains that because ownership or tenancy may be relinquished or regained, it is not possible to determine whetherthe statute applies in any one instance until a claim actually
accrues. As the trial court aptly noted, Cameron’s argumentthatthe statute cannot be applied until a claim has accrued “conflicts with the purpose ofthe statu[t]e of repose, which wasto barclaims that arise after completion ofconstruction, even if no injury had yet occurred.” Because the date ofsubstantial completion starts the six-year period afterwhich a person’s claim is barred, the subject matterand plain language ofthe statute support using the date ofsubstantial completion to determine which version ofthe statute of repose applies. Here, the Plant was

27 In re Estate ofHaviland, 177Wn.2d 68, 75, 301 P.3d 31(2013). -10-No. 76663-5-I Ill

substantially complete by 1972. In 1972, the 1967 statute applied. Thus, the 1967version ofthe statute ofrepose applies. Cameron additionally claims the 2004 amendment applies to all actions filed after August 1, 1986. She correctly notes that the legislature’s 2004 amendment revised both RCW 4.16.300 and section 703 of Laws of 1986, chapter 3Q528 She reasons that the 2004 amendment to RCW 4.16.300 incorporates the effective date ofthe 1986 amendment. This argument ignores the plain language ofthe relevant legislation and could lead to absurd results. The legislature included the 1986 amendment to RCW 4.16.300 as section 703 of Laws of 1986, chapter305, an actthat made substantial changes to tort law across many statutes. Section 910 ofthis act states, in relevant part, “[T]his act applies to all actions filed on or afterAugust 1, 1986.”29 It describes the effective date ofthe act and says nothing about the effective date offuture amendments to the statutes amended by the act. Cameron’s proposed construction would make section 910 apply to all future amendments to any statute amended bychapter305to makethem also applyto all actionsfiled on or after August 1, 1986. Section 910 says nothing about future amendments, let alonetheireffective dates. Cameron does not explain howa courtcould applya 2004 amendment to a statute to an action filed after August 1, 1986, and fully

28 LAWS OF 2004, ch. 257, 

### § 1 (RCW4.16.300). 29 LAWSOF 1986, ch. 305, 

### § 910 (former RCW5.40.901 (1986)). —11—No. 76663-5-I / 12

resolved before 2004. While her argument would require this, the legislature could not have intended this meaning and used nowords supporting it. In Washington, an acttakes effect 90 days afterthe legislative session in which the legislature that enacted it adjourns unless the legislature specifies a different effective date.3° The 2004 amendment did not specify an effective date and explicitly amended only section 703 of Laws of 1986, chapter 305, not section 910 of Laws of 1986, chapter 305. Current RCW 4.16.300 applies to claims with an operative date any time after the effective date of the 2004 amendment. Alternatively, Cameron claimsthatthe currentstatute applies retroactively. A court presumes that a statute operates prospectively unless the legislature indicates that it operates retroactively.31 But a statutory amendment is retroactive, if constitutionally permissible under the circumstances,32 when “(1) the Legislature explicitly provides for retroactivity; (2) the amendment is curative;

30 Hallin v. Trent, 94 Wn.2d 671, 675, 619 P.2d 357 (1980); see WASH. CONST. art. II, §41.

31 Densley v. Dep’t of Ret. Sys., 162 Wn.2d 210, 223, 173 P.3d 885 (2007).32.1000 Virginia, 158 Wn.2d at 584 (retroactive application may not “run afoul of any constitutional prohibition”) (internal quotation marks omitted) (quoting McGee Guest Home. Inc. v. Dep’t of Soc. & Health Servs., 142 Wn.2d 316, 324, 12 P.3d 144 (2000)). -12-No. 76663-5-1/13

or(3) the statute is remedial.”33 Cameron contendsthatthe 2004 amendmentto RCW4.16.300satisfies allthree ofthese criteria. First, she again asserts that the 2004 amendment incorporates the effective date of the 1986 amendment to show that the legislature explicitly provided for retroactivity. But we have rejected this claim. Cameron also cites language from the House Bill Report (HBR) on the 2004 amendmentstating that the amendmentwould restorethe original legislative intent ofthe statute, butthe report says nothing about retroactivity and the act adopted bythe legislature did notexplicitlyprovidefor retroactivity. Next, Cameron maintains that the 2004 amendment is curative and remedial because the HBR and testimony in support ofthe bill indicated thatthe legislature intended the amendmentto clarifythe meaning of “manufacturers” in the 1986 amendment. “Acurative amendment clarifies ortechnically corrects an ambiguous statute.”34 “A statute is remedial when it relates to practice, procedure, or remedies and does not affecta substantive orvested right.”35 “An amendment is curative and remedial if it clarifies or technically corrects an

~ Densley, 162 Wn.2d at 223 (internal quotation marks and citations omitted) (quoting Statev. T.K., 139Wn.2d 320, 332, 987 P.2d 63 (1999)).

~ State v. Wilcox, 196 Wn. App. 206, 212, 383 P.3d 549 (2016) (quoting Statev. Smith, 144Wn.2d 665, 674, 30 P.3d 1245 (2001)).

~ 1000 Virginia, 158 Wn.2d at 586 (quoting Miebach v. Colasurdo, 102 Wn.2d 170, 181, 685 P.2d 1074 (1984)). -13-No. 76663-5-I /14

ambiguous statutewithout changing priorcase lawconstructionsofthe statute.”36 Cameron relies on New Grade International, Inc. v. Scott Technologies,37 in which the Federal District CourtfortheWestern District ofWashington held that the 2004 amendment clarified the former statute and was thus retroactive. The court reasonedthatthe legislative historyshowed thatthe legislature intended for the amendmenttodistinguish contractorsfrom manufacturers.38 We disagreewith New Grade. “[A] statutefixing atime limitation upon the assertion of a right or the enforcement of an obligation will not be held ~y construction to operate retroactively, and it will be deemed so to operate only when, by its plain terms or by necessary implication, such intention is apparent.”39 The 2004 amendment neither states nor makes apparent any legislative intent that the statute applies retroactively. It limited application of RCW4.16.310 to those licensed professionals named in RCW4.16.300 and did not clarify orcorrect ambiguous language; itsubstantivelychanged the law, so it
was not curative. In addition, because statutes of repose are substantive law4°

36 Barstad v. Stewart Title Guar. Co., 145 Wn.2d 528, 537, 39 P.3d 984 (2002).

~ 2004WL 5571416 (W.D. Wash. Nov. 30, 2004) (court order), affd, 205 F. App’x571 (9th Cir. 2006). 38 NewGrade, 2004WL5571416, at*2.4

~ Lane v. Dept of Labor& Indus., 21 Wn.2d 420, 423, 426, 151 P.2d 440 (1944) (“There is no constitutional inhibition against the revival of a barred remedy.”). 40 Rice v. Dow Chem. Co., 124 Wn.2d 205, 212, 875 P.2d 1213 (1994) (“The general authority isthatstatutes of repose areto betreated notas statutes -14-No. 76663-5-I / 15

and the 2004 amendment made a substantive change, the amendment did not simplychange a remedyand thuswas not remedial. Because the operative date of the statute of repose is the date of substantial completion of construction and the 2004 amendment to the statute does not apply retroactively, the 1967 version of the statute of repose applies here. The 1967Version Bars OnlyCameron’s ClaimsArising from Construction Cameron contends that even the 1967 version ofthe statute does not bar herclaims because itdoes not protect premises owners sued in theircapacityas premises owners. To the extent that Cameron bases her claims on activities arising out of PacifiCorp’s activities as a premises owner and not on its acts or omissions arising outofits construction activities, we agree. Cameron relies on Pfeifer v. City of Bellingham,41 in which our Supreme Court held thatthe construction statute of repose did not bar claims against the defendant construction company that was both the seller and builder of an apartment complex because the claim arosefrom the company’s sales activities. The court explained, “[T]he focus is on activities. Ifthe claim arises from those activities, the person is covered; if it does not, he is not covered. Here the claim

oflimitation, but as partofthe bodyofastate’s substantive law in making choice of-lawdeterminations.”). 41112Wn.2d 562, 564-65, 569, 772 P.2d 1018 (1989). -15-No. 76663-5-I /16

arises from concealment [of a known dangerous condition] during sale—the activityofselling is notcovered.”42 Here, Cameron sued PacifiCorp for both its construction activities and its activities as a premises owner. She alleged and the record shows that PacifiCorp performed engineering and construction observation services during the construction ofthe Plant and was not solely an uninvolved premises owner. Butshe also allegesthat PacifiCorp “negligentlyfailed totake corrective action to eliminate a dangerous condition that the defendants knew or in the exercise of reasonable care should have known existed attheirfacilities.” Former RCW 4.16.300 protects persons or entities that performed engineering services or observation of construction for any construction of an improvement upon real property. Consistentwith ourSupreme Court’s reasoning in Pfeifer, because Cameron’s claims arise from activities covered bythe statute and activities not covered, the 1967 version ofthe statute applies to bar claims arising out of PacifiCorp’s construction activities but not those arising out of its status as a premisesowner. PacifiCorp contends that RCW 4.16.310 bars claims arising out of its activities as a premises ownerbecause itdid not own the Plantwhen Cameron’s claim accrued. PacifiCorp relies on this proviso in the statute, “Provided, That

42 Pfeifer, 112Wn.2d at569. -16-No. 76663-5-I /17

this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control ofthe improvement atthe time such cause of action accrues.” This proviso only deprives an owner of a defense to claims arising outofconstruction activitieswhen thatownerstill ownsthe propertywhen the plaintiff’s claim accrues. It does not provide any protection against claims arising outofotheractivities. The trial court should not have dismissed Cameron’s claims arising out of PacifiCorp’s status as a premises owneras barred bythe statute ofrepose. PolicyConsiderations Cameron also contends thatthe legislature did not intend thatthe statute of repose applies to claims for latent occupational diseases such as mesothelioma. She states that no Washington appellate case has held that Washington’s construction statute of repose applies to bar a claim for an occupational disease similar to mesothelioma. And she asserts that because mesothelioma has a latency period well beyond six years, application of the statute of repose to a mesothelioma plaintiff could cause a denial of access to the courts and raise constitutional concerns. Becausethis courtgenerallywill not consider issues raised for the first time on appeal,43 we decline to review this claim.

~ RAP 2.5(a). -17-No. 76663-5-1/18
TheTrial Court’s Denial ofCameron’s Requestfora Continuance Last, Cameron claimsthat because PacifiCorp asserted forthefirsttime in its reply briefto the trial courtthatthe current statute of repose bars her claims, thetrial court committed errorwhen it relied, in part, on this argument in granting PacifiCorp summaryjudgment and in denying her request for a continuance to obtain discoveryaboutthe issue. Wedisagree. By granting PacifiCorp’s summary judgment motion and dismissing Cameron’s claims against PacifiCorp, the trial court denied Cameron’s request for a continuance contained in her response to PacifiCorp’s reply. This court reviews a trial court’s denial of a request for a continuance for an abuse of discretion.44 Acourt maydenya motionfora continuancewhen (1) the requesting party does not offera good reason forthe delay in obtaining the desired evidence; (2) the requesting party does not state what evidence would be established through the additional discovery; or (3) the desired evidence will not raise a genuine issue ofmaterialfact.~451 King County Super. Ct. Local Civ. R. 7(b)(4)(G) states, “[Amy reply material which is not in strict reply[ 

### ] will not be considered by the court over objection ofcounsel except upon the imposition ofappropriate terms, unless the court orders otherwise.” In Cameron’s memorandum in opposition to

~ Tellevik v. Real Prop. Known as 31641 W. Rutherford St., 120 Wn.2d 68, 90, 838 P.2d 111,845 P.2d 1325 (1992).

~Tellevik, 120Wn.2d at90. -18-No. 76663-5-1/19

PacifiCorp’s motion for summaryjudgment, she claimed thatthe current statute applies. In reply, PacifiCorp asserted the same argumentsthat itdoes on appeal and stated that even ifthe current statute applies, it still bars Cameron’s claim. Consistentwith the local rule, PacifiCorp’s replydirectly responded to Cameron’s argument that the current statute does not bar her claim. Thus, the trial court could consider PacifiCorp’s arguments and did not abuse its discretion by denying Cameron’scontinuance.CONCLUSION We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. The 1967 version of the construction statute of repose applies to bar Cameron’s claims arising out of PacifiCorp’s construction activities but notthose arising outofits acts oromissions as a premises owner.

WE CONCUR:

-19-