IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BORDAK BROTHERS, INC., a Washington corporation, Plaintiff,

v. PACIFIC COAST STUCCO, LLC, Defendant.
LEDCOR INDUSTRIES (USA), INC., a Washington corporation, Appellant,

v. SQI, INC., a Washington corporation; SCAPES &CO., INC., a Washington corporation; BORDAK BROTHERS, INC., a Washington corporation; UNITED SYSTEMS, INC., a Washington corporation; THE PAINTERS, INC., a Washington corporation; COATINGS UNLIMITED, INC., a Washington corporation; EXTERIOR METALS, INC., a Washington corporation; SKYLINE SHEET METAL, INC., a Washington corporation; and ROESTEL'S MECHANICAL, INC., a Washington corporation, Defendants, STARLINE WINDOWS, INC., a Washington corporation, Respondent. No. 72317-1-1 DIVISION ONE

UNPUBLISHED FILED: October 5, 2015 on O

1No. 72317-1-1/2 

### Cox, J. — Ledcor Industries (USA) Inc. appeals three successive 

### summaryjudgmentorders granting relief to Starline Windows Inc. There are no 

### genuine issues of material fact for any order. Starline is entitled tojudgmentas a matter of law for each order. We affirm. We also deny Starline's motion to 

### dismiss Ledcor's appeal as untimely.1 This is a construction defect action that arises from the Admiral Way 

### mixed-use project. That project was substantially completed in April2003. Admiral Way LLC (Admiral) was the developer. Ledcorwas the general contractor. Ledcor hired Starline to supply window products for the project. 

### Afterthe projectwas completed, the Admiral Condominium Owners Association (COA) discovered defects inthe building and sued Admiral, the 

### developer. Admiral impleaded Ledcor. Ledcorthen commenced this action 

### against its subcontractors and suppliers. Ledcor did notinitially include Starline in this action. 

### Ledcortendered defense and indemnity to Starline for the claim based on 

### the windowproducts itsupplied for the project. Ledcor also encouraged Starline to contactthe COA to "negotiate an issue release that absolves Starline and 

### [Ledcor] from anyliability in anyway related to theStarline products."2 Ledcor also informed the COA that only the COA could make claims 

### against Starline. In its correspondence with the COA, Ledcor stated: Also, please let us know if(and when) you anticipate amending 

### your Complaint to add claims against Starline. Please note that it is 1 RAP 2.2(d) and 5.2. 

### 2Clerk's Papers at 163 (emphasis omitted). 2No. 72317-1-1/3 

### our position that such claims can only be made by the [COA]and that any damages that could (or should) be recovered bythe [COA] from Starline are not recoverable from our client. Accordingly, we 

### are not pursuing any claims against Starline.[3] The COA then amended its complaint to assert claims directly against 

### Starline. Thereafter, Starline negotiated a settlementwith the COA, as Ledcor 

### requested. Underthe terms ofthe written settlement agreement, Starline paid the COA $165,000 for release of claims. The settlement included an "Issue Release" clause that "satisfie[d] and release[d] all of [the COA's] claims against 

### allparties to the litigationarising from the alleged defective design and/or defective manufacture ofSTARLINE's windowproducts."4 Subsequently, Ledcor also settled withthe COA. Ledcor and its insurer agreed to pay the COA $2,700,000 to settle the claims against it. After this settlement, Ledcor amended its complaint inthis action to join Starline as a defendant. Ledcor asserted claims underthe Washington Products 

### LiabilityAct and forbreach of the purchase order agreement between the parties. 

### Ledcorsought indemnity and an award of itsdefense expenses.5 Italso pled as remedies equitable subrogation, equitableindemnity, and contribution.6

3Id. at 157-58 (emphasis omitted). 4Id. at 181 (emphasis added). 5 IdL at 24-26. 6 Id. at 26.No. 72317-1-1/4 Starline moved for summaryjudgment. The court granted Starline's 

### motion on Ledcor's claims with two specific exceptions.7 The court leftpending
as "the only claims to be litigated" Ledcor's claim for defense costs and the claim 

### forbreach ofthe duty to name itas an additional insured on Starline's policy.8 We granted discretionary review ofthe trial court's dismissal of Ledcor's indemnity claims against its subcontractors and affirmed in an unpublished decision.9 In that decision we stated: We note that, on appeal, Ledcor and Admiral do not argue thatthe trial court erred in dismissing the indemnity claims against Starline. Therefore, any argument that summaryjudgmentwas not 

### properfor Starline is waived.t10] There was no further review ofthat decision. On remand following this court's decision, the trial court granted summary 

### judgmentto Starline on Ledcor's two remaining claims. Specifically, itgranted summaryjudgment on the duty to insure claim. The court also granted summary 

### judgmenton the duty to defend claim, assessing $19,101.20 ofLedcor's defense expenses against Starline. Ledcor appeals all three summaryjudgmentorders.



### 7IdL at 2180-82. 8Id, at 2182. 9 Bordak Bros, v. Pac. Coast Stucco, LLC, noted at 169 Wn. App. 1008, 2012 WL 2510956.

10 Id. at*7.No. 72317-1-1/5

INDEMNITY CLAIMS Given this case's factual and procedural complexities, we first clarify that Ledcor's indemnity claims are not before us. That is because the law ofthe case doctrine bars considering these claims inthis second review. The term "law ofthe case" "means different things in different 

### circumstances."11 Here, we refer to "'the rulethat questions determined on appeal or questions which might have been determined had they been presented, willnot again be considered on a subsequent appeal inthe same case.'"12 Inthis case, Ledcor sought review of a decision on its indemnity claims 

### against its subcontractors.13 Inthat review, we noted that Ledcorfailed to argue 

### "that the trial court erred indismissing the indemnity claims against Starline."14 Thus, Ledcorwaived any argument that summaryjudgment on the indemnity 

### claim was not proper.15 Accordingly, we affirmed that portion ofthe summary 

### judgment order.16

11 Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005). 

### 12 State v. Bailey. 35 Wn. App. 592, 594, 668 P.2d 1285 (1983) (quoting Davis v. Davis, 16 Wn.2d 607, 609, 134 P.2d 467 (1943)). 13 Bordak Bros., 2012 WL 2510956 at *2. 

### 14 ]d, at *7. 15jd, 16Id. at *8.No. 72317-1-1/6 Because Ledcorwaived this issue inthe prior review, itcannot now challenge summaryjudgmenton this claim. Accordingly, we do not consider any challenges to the court's dismissal ofLedcor's indemnity claim. Inthis appeal, Ledcor is less than clear in describing what claims it argues. For example, its briefing mentions "independent contractual and equitable claims" without explaining exactly whatthis means. Accordingly, inthe remaining portions ofthis opinion, we discuss the claims that the various orders before us address. To the extent the assignments oferror or argument address other matters, they are simply not properly before us. CLAIMS OTHER THAN INDEMNITY Ledcor challenges the summaryjudgment order entered on October 25, 2010. There are no genuine issues of material fact for the claims addressed by this order. Starline is entitled tojudgment as a matter of law. 

### This ordergranted summaryjudgmentto Starline and denied Ledcor's 

### cross-motion for summaryjudgment. Italso expressly reserves forfurther 

### litigation Ledcor's claim fordefense costs and the claim forbreach ofthe duty to

name Ledcor as an additional insured on Starline's policy "Issue Release" 

### Ledcor argues that summaryjudgmentwas improperon the claims against Starline thatwere the subjects of this motion. We disagree. 

### One ofthe grounds on which Starline based its summaryjudgmentmotion was the settlement agreementwith COAthat released claims against all partiesNo. 72317-1-1/7 

### to the litigation. Thus, the effect ofthat agreement on Ledcor's claims against Starline is a legal question before us. "'A court may grant summaryjudgment ifthe pleadings, affidavits, and 

### depositions establish that there is no genuine issue as to any material fact and 

### the moving party is entitled tojudgmentas a matteroflaw.'"17 Summary judgment is appropriate "ifreasonable minds could reach only one conclusion 

### from the evidence presented."18 

### "[Settlementagreements are contracts."19 "Contract interpretation is a matteroflaw."20 "During interpretation, a court's primary goal is to ascertain the 

### parties' intent at the time they executed the contract."21 Undefined terms in a contract are "given their 'plain, ordinary, and popular meaning.'"22 After interpreting a contract, we determine its legal effect.23 Here, after Starline settled with the COA, the COA had no claims against 

### Ledcor based on Starline's window products. Thereafter, when the COA settled

17 Wash. Fed, v. Harvey, 182 Wn.2d 335, 340, 340 P.3d 846 (2015) (quoting Lvbbert v. Grant County. 141 Wn.2d 29, 34, 1 P.3d 1124 (2000)). 18 Bostain v. Food Exp., Inc., 159 Wn.2d 700, 708, 153 P.3d 846 (2007). 19 Jackson v. Fenix Underground, Inc., 142 Wn. App. 141, 146, 173 P.3d 977 (2007). 20 Int'l Marine Underwriters v. ABCD Marine, LLC, 179 Wn.2d 274, 282, 313 P.3d 395 (2013).

21 Id. 

### 22 Id. at 284 (quoting Queen CityFarms v. Central Nat. Ins. Co ofOmaha, 126 Wn.2d 50, 66, 882 P.2d 703, 891 P.2d 718 (1994)). 23 Id. at 288.No. 72317-1-1/8 

### with Ledcor, the COA had no remaining claims based on Starline's window products. Thus, the court appropriately granted summaryjudgment infavor of Starline. Starline's settlement with the COA included an "Issue Release" clause.24 This clause read: [The COA] hereby agrees thatthis SettlementAgreement and Release of Claims satisfies and releases allof [the COA's] claims againstallparties to the litigation arising from the alleged defective 

### design and/or defective manufacture of STARLINE'S window products at [the project], including claims for breach ofexpress and implied warranties and claims underthe Washington Products Liability Act. Specifically excluded from this SettlementAgreement and Release of Claims are any of [the COA's] claims against [the developer] and/or [Ledcor] for those parties' improper specification, installation, alteration, modification or repair of STARLINE'S window 

### products at [the project].[25] The plain language of this release indicates thatthe COA released all of its claims "againstallparties to the litigationarisingfrom the alleged defective 

### design and/ordefective manufacture ofSTARLINE'S windowproducts."26 This broad language included the COA's claims against Ledcor based on Starline's defective window products. The only window claims thatwere excluded were those related to Ledcor's "improper specification, installation, alteration, 

### modification or repair" ofStarline's windowproducts.27

24 Clerk's Papers at 181. 25 Id. (emphasis added). 

### 26jd. (emphasis added). 27 Id. 8No. 72317-1-1/9 Thus, when Ledcor subsequently settled with the COA, the COA no longer had any claims against itbased on Starline's allegedly defective window products. Accordingly, the court appropriately dismissed all of Ledcor's claims against Starline, apart from those specifically reserved for future litigation inthe summaryjudgment order. Ledcor argues that the court misinterpreted the scope ofthe issue release. This argument is without merit. First, Ledcor argues that Starline's settlement involved only windows, and did not include the vinyl doors and specifications that Starline supplied. The 

### settlement releases all claims "arising from the alleged defective design and/or 

### defective manufacture ofSTARLINE'S windowproducts."28 Ledcor argues that "window products" means windows, and necessarily excludes otherthings Starline provided. 

### But this argument essentially reads the word "products" out ofthe settlement agreement. We decline to do so. "Window products" is broaderthan
mere "windows." Moreover, to the extent extrinsic evidence is required to give 

### further meaning to these words, that evidence has been provided by Starline,
one of two parties to that agreement. Ledcor, who was not a party to that 

### agreement, fails to point to any contrary extrinsic evidence. Second, Ledcor argues thatthe issue release covered only a narrow 

### warranty claim. Ledcor argues thatthe only claim the COA could have brought

28jd. (emphasis added).No. 72317-1-1/10 against Starline was based on "a limited manufacturer's warranty covering repair
or replacement only." Ledcor argues that itcould bring much broader claims against Starline, including claims for consequential damages. But the plain words ofthe issue release are far broader. The provision


### covers "claims against all parties to the litigation arisingfrom the alleged defective design and/or defective manufacture ofSTARLINE'S window products at [the project], including claims for breach ofexpress and implied warranties and 

### claims under the Washington Products LiabilityAct."29 Thus, the release was not only for claims the COA could directly bring against Starline—it also included claims the COA could bring against Ledcor. Thus, the claims released were much broaderthan a limited manufacturer's warranty. It is ironic that Ledcor now takes the position thatthe settlement 

### agreement between the COA and Starline fails to completely resolve all claims against Ledcor that arise from Starline providing window products to the project. Earlier, Ledcor asked Starline to reach a settlementwith the COA to resolve such 

### claims. From our point of view, that is exactly what Starline did. 

### Finally, Ledcor argues thatthere were some claims only it could bring 

### against Starline. Ledcor is correct, but the court did not dismiss these claims. The claims that only Ledcor couldbring—claimsabout Starline's duties to defend and insure Ledcor—survived summaryjudgment bythe express terms ofthe court's order.



### 29 Id. (emphasis added). 10No. 72317-1-1/11 Because we affirm the court's order based on the issue release, we need not reach Starline's alternative grounds for summaryjudgment. Likewise, we do not reach Starline's other arguments on appeal. In sum, the trial court properly granted summaryjudgmentfor the claims at issue, reserving only two for further litigation. DUTY TO INSURE In its notice of appeal, Ledcor also noted the summaryjudgment order dismissing its claim on the duty to insure. Because Ledcorfails to provide any substantive argument on this issue, we deem itabandoned. A party waives a claim oferror by offering no argument on the claimed 

### error in its opening brief.30 Here, Ledcor makes no substantive argument about Starline's alleged 

### breach ofthe duty to insure. Further, Ledcorconcedes that "[Starline's insurer] had acknowledged Ledcorwas an additional insured on its Starline CGL policies

"31 DUTY TO DEFEND 

### Ledcor also appeals the summaryjudgment order on its final claim—the 

### duty to defend. There are no genuine issues ofmaterial fact, and Starline was entitled tojudgment as a matter of law.

30 Brown v. Vail, 169 Wn.2d 318, 336 n.11, 237 P.3d 263 (2010). 

### 31 Brief ofAppellant Ledcor Industries (USA) Inc. at 11 n.1. 11No. 72317-1-1/12 

### Ledcor claims there is a genuine issue ofmaterial fact—the amount of its defense expenses as damages forthe breach ofthe duty to defend. On this record, we disagree. Here, the trial court decided that Ledcor "ha[d] elected to use the 

### proportionate share method to allocate its defense costs among its 

### subcontractors and suppliers."32 Ledcor does not challenge this decision. This court approved the "proportionate share approach" in Ledcor Industries (USA) Inc. v. Mutual of Enumclaw Insurance Co.33 Inthat case, the 

### trial court ordered a subcontractorto pay the portion ofthe contractor's defense 

### costs thatwere attributable to that subcontractor's work.34 The costs arising from the subcontractor's work were not segregated from costs incurred based on other subcontractors' work.35 Thus, the trial court determined the subcontractor's 

### share of the defense costs with "a proportionate share approach."36 

### Thisapproach was a two-step process.37 First, the court compared the amount ofthe subcontractor's settlement with the contractor to the amount ofthe 

### contractor's settlementwith the developer.38 The court calculated that the

32 Clerk's Papers at 2189. 

### 33 150 Wn. App. 1,15, 206 P.3d 1255 (2009). 34 Id 35 Id 36 \± 

### 37 id, 38Id, 12No. 72317-1-1/13 

### subcontractor's settlementwas 18.8 percent ofthe contractor's settlement.39 Accordingly, the court ordered the subcontractorto pay 18.8 percent ofthe defense costs.40 Here, the trial courtfollowed these principles. Itcalculated Starline's proportionate share using the method described earlier. The courtfirst calculated the total settlement paid to the COA by adding Ledcor's settlement with the COA to Starline's settlement with the COA. The court determined that this was $2,865,000. The court then divided the amount ofStarline's 

### settlement—$165,000—by that number. Withthese calculations, the court calculated that 5.76 percent ofthe defense costs were attributable to Starline. Ledcor does not dispute that this was the amount ofthe settlements orthat the court correctly calculated the percentage. Thus, there was no genuine issue ofmaterial fact as to the amount of damages. Ledcor had elected to use the proportionate share method. The court 

### merely calculated the amount due underthat method based on undisputed facts. Accordingly, the court did not err by determining the amount ofdamages on summaryjudgment. Ledcor argues that the court unconstitutionally invaded the province ofthe 

### jury by determining the amount ofdamages. On this record, this argument is unpersuasive for the reasons wejust discussed.

39 Id, 40 Id. 13No. 72317-1-1/14 In its reply brief, Ledcor argues that the court should have used a value other than Starline's settlement to calculate Starline's share ofthe costs. 

### Because this is an argumentfirstmade in a replybrief, we need notaddress it.41 ATTORNEY FEES Trial Court Starline appealed the trial court's orderdenying fees to both parties in a 

### separate, linked appeal. We addressed that challenge in our decision inthat 

### appeal.42 On Appeal 

### Both parties seekfees on appeal based on their contract. Because 

### Starline is the prevailing party on appeal, we award itfees, subjectto its compliance with RAP 18.1. 

### Parties inWashington may recover attorney fees if a statute, contract, or 

### recognized ground of equity authorizes the award.43 "'Acontractualprovision for an award ofattorney's fees at trialsupports an award ofattorney's fees on appeal under RAP 18.1.'"44

41 In re Marriage of Bernard, 165 Wn.2d 895, 908, 204 P.3d 907 (2009). 42 Ledcor Indus. (USA). Inc. v. Starline Windows, Inc., noted at Wn. 

### App. , 2015 WL4533933. 43 LKOperating. LLC v. Collection Grp.. LLC. 181 Wn.2d 117, 123, 330 P.3d 190(2014). 

### 44 Thompson v. Lennox, 151 Wn. App. 479, 491, 212 P.3d 597 (2009) 

### (quoting W. CoastStationary Eng'rs Welfare Fund v. CityofKennewick, 39Wn. App. 466, 477, 694 P.2d 1101 (1985)). 14No. 72317-1-1/15 Here, the parties' contract states: Inthe event that arbitration and/or litigation is instituted to enforce [or] contestthe provisions ofthis Agreement or adjudicate any question(s) arising underthis Agreement, the prevailing party shall be entitled to its actual attorneys' fees and all costs incurred in connection therewith.1451 Starline prevails inthis appeal. Thus, it is entitled to a reasonable attorney fees award. 

### We affirm all summaryjudgment orders on appeal. We award Starline attorney fees on appeal, subjectto its compliance with RAP 18.1.

WE CONCUR:



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