131 Wn. App. 908, In re Pers. Restraint of Fuamaila

[Nos. 53698-2-I; 54971-5-I; Division One. March 13, 2006.]

52137-3-I.

In the Matter of the Personal Restraint of TAUGA FUAMAILA , Petitioner .

[1] Personal Restraint - Petition - Timeliness - Statutory Limits - Exceptions - Burden of Proof. The burden of showing that a petition or motion for collateral relief from a criminal judgment and sentence is not statutorily time barred is on the petitioner or movant.

[2] Personal Restraint - Petition - Timeliness - Statutory Limits - Exceptions - Facial Invalidity - In General. Under RCW 10.73.090 (1), there is no time limit on filing a petition or motion for collateral relief from a criminal judgment and sentence that is invalid on its face.

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[3] Personal Restraint - Petition - Timeliness - Statutory Limits - Exceptions - Facial Invalidity - What Constitutes. For purposes of RCW 10.73.090 (1), under which a collateral attack on a criminal judgment and sentence is subject to a one-year limitation period if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction, a criminal judgment and sentence is invalid on its face if it evidences an invalidity without further elaboration.

[4] Personal Restraint - Petition - Timeliness - Statutory Limits - Exceptions - Facial Invalidity - Judgment Entered on Plea - Materials Considered - Plea Documents. The documents considered as part of a plea agreement may be used to determine the facial validity of the judgment and sentence entered on the plea for purposes of RCW 10.73.090 (1), under which a collateral attack on a criminal judgment and sentence is subject to a one-year limitation period if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.

[5] Homicide - Second Degree Murder - Single or Multiple Offenses. RCW 9A.32.050 defines the single offense of second degree murder that may be committed by the alternative means of intentional murder and felony murder; it does not define separate offenses.

[6] Indictment and Information - Sufficiency - Alternative Means of Committing Offense - Single Count. It is permissible to charge alternative means of committing an offense in the same count.

[7] Criminal Law - Plea of Guilty - Nature of Right - Alternative Means of Committing Offense. A defendant charged with an offense by alternative means may not plead guilty to just one of the means. Where the information alleges more than one means of committing a single offense, the CrR 4.2 right to plead guilty is a right to plead guilty to the one offense as charged.

[8] Personal Restraint - Petition - Timeliness - Statutory Limits - "Judgment" - Facial Invalidity - Alternative Means Offense - Invalidity of One Means. For purposes of RCW 10.73.090 (1), under which a collateral attack on a criminal judgment and sentence is subject to a one-year limitation period if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction, a judgment and sentence entered upon a plea of guilty to an offense charged by alternative means is not rendered facially invalid by the invalidity of one of the alternative means.[9] Homicide - Second Degree Murder - Alternative Means - Collateral Challenge - Timeliness - Invalidity of One Means - Effect - Facial Validity. Where a judgment and sentence has been entered on a defendant's plea of guilty to a charge of second

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degree murder by the alternative means of (1) intentional murder and (2) felony murder predicated on second degree assault under former RCW 9A.32.050 (1976), the invalidation of the felony murder alternative under In re Personal Restraint of Andress , 147 Wn.2d 602 (2002) does not render the judgment and sentence facially invalid for purposes of RCW 10.73.090 (1).

[10] Personal Restraint - Petition - Timeliness - Statutory Limits - Exceptions - Significant Change in Law - Materiality - Alternative Means Offense - Invalidation of Single Means. For purposes of RCW 10.73.100 (6), under which the one-year limitation period of RCW 10.73.090 for filing a postconviction petition or motion for collateral relief does not apply if there has been a significant change in the law and the change is material to the judgment or sentence and applies retroactively, a significant change in the law that invalidates just one means of committing an alternative means offense does not constitute a significant change in the law material to a defendant's conviction of the offense if the charge against the defendant alleged alternative means.

[11] Homicide - Second Degree Murder - Alternative Means - Collateral Challenge - Timeliness - Invalidity of One Means - Effect - Significant Change in Law Material to Conviction. For purposes of a conviction of a charge of second degree murder by the alternative means of (1) intentional murder and (2) felony murder predicated on second degree assault under former RCW 9A.32.050 (1976), the invalidation of the felony murder alternative under In re Personal Restraint of Andress , 147 Wn.2d 602 (2002) and In re Personal Restraint of Hinton , 152 Wn.2d 853 (2004) does not constitute a significant change in the law material to the conviction within the meaning of RCW 10.73.100 (6) inasmuch as the validity of the intentional murder alternative is unaffected by the court's holdings. Under RCW 10.73.100 (6), the one-year limitation period of RCW 10.73.090 for filing a postconviction petition or motion for collateral relief does not apply if there has been a significant change in the law and the change is material to the judgment or sentence and applies retroactively.

[12] Personal Restraint - Grounds - Burden and Degree of Proof. To obtain relief from personal restraint, a petitioner must show, by a preponderance of the evidence, actual and substantial prejudice resulting from constitutional error or, if the error is nonconstitutional, a fundamental defect that inherently results in a complete miscarriage of justice.

[13] Personal Restraint - Scope - Constitutional Error - Prejudice - Burden of Proof. A personal restraint petitioner raising a claim of constitutional error has the burden of demonstrating by a preponderance of the evidence that the error resulted in actual and substantial prejudice.

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[14] Personal Restraint - Scope - Constitutional Error - Prejudice - Invalid Guilty Plea. For purposes of a personal restraint petition, actual prejudice is shown by a constitutionally invalid guilty plea.

[15] Criminal Law - Plea of Guilty - Voluntariness - Relation of Facts to Law. Due process of law requires that a guilty plea be made intelligently, voluntarily, and with knowledge that certain rights will be waived. The plea cannot be voluntary unless the defendant possesses an understanding of the law in relation to the facts. The defendant must not only be informed of the requisite elements of the crime charged but also must understand that his or her conduct satisfies those elements.

[16] Criminal Law - Plea of Guilty - Voluntariness - Alternative Means Offense. An offender convicted of an alternative means offense on a plea of guilty does not state a claim that the plea was ineffective as to one of the means if the record establishes that the offender understood that the guilty plea applied to both alternative means charged.

[17] Criminal Law - Plea of Guilty - Validity - Admission of Conduct - Necessity. A defendant pleading guilty to a charge is not required to expressly admit to all of the conduct constituting the elements of the charge in order for the plea to be voluntary, knowing, and intelligent. The guilty plea is itself an admission of the elements of the charge.

[18] Criminal Law - Plea of Guilty - Factual Basis - Sufficiency - Test. The sufficiency of the factual basis required by CrR 4.2(d) before a trial court may accept a guilty plea is determined by whether a jury would be able to conclude from the evidence that the defendant is guilty. The trial court may consider any reliable source of information, not just the defendant's admissions, so long as the material relied upon is made a part of the record. Such sources may include the defendant's statement on plea of guilty, the charging document, or the certification for determination of probable cause.

[19] Criminal Law - Plea of Guilty - Factual Basis - Alternative Means Offense - Invalidity of One Means. A criminal defendant may be held to a plea of guilty to an alternative means offense despite the invalidity of one of the means if, in regard to the valid means, the record provides a sufficient factual basis for the plea.[20] Homicide - Second Degree Murder - Alternative Means - Invalidity of One Means - Plea of Guilty - Voluntariness. A defendant who enters a plea of guilty to a charge of second degree murder by the alternative means of (1) intentional murder and (2) felony murder predicated on second degree assault under former RCW 9A.32.050 (1976) may be held to the plea despite the invalidity of the felony murder alternative under In re Personal Restraint of

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Andress , 147 Wn.2d 602 (2002) if the record provides a sufficient factual basis for the plea of guilty to the intentional murder alternative.

Nature of Action: An offender who pleaded guilty to a charge of second degree murder by the alternative means of (1) intentional murder and (2) felony murder predicated on second degree assault sought relief from personal restraint on a claim that the felony murder conviction is invalid because it was based on a former statute that did not authorize the use of second degree assault to support a charge of second degree felony murder and that his guilty plea to intentional second degree murder was ineffective because he did not voluntarily plead guilty to that alternative and the record did not contain a sufficient factual basis for the court to accept the plea.

Court of Appeals: Holding that the judgment and sentence entered against the defendant were facially valid, that the personal restraint petition is statutorily time barred, that the petitioner's plea of guilty to second degree intentional murder comported with the requirements of due process of law, and that there was a sufficient factual basis in the record for the trial court to accept the guilty plea to second degree intentional murder, the court denies the petition.

Christopher Gibson (of Nielsen, Broman & Koch, P.L.L.C. ), for petitioner.

Norm Maleng , Prosecuting Attorney, and James M. Whisman , Deputy, for respondent.

¶1 SCHINDLER, J. - On June 16, 1994, Tauga Fuamaila pleaded guilty to murder in the second degree of Lindsey Thompson charged in the alternative as intentional and

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felony murder under former RCW 9A.32.050 (1)(a) and (b) (1976), amended by Laws of 2003, ch. 3, § 1. After the decision in In re Personal Restraint of Andress , 147 Wn.2d 602 , 56 P.3d 981 (2002), Fuamaila filed a personal restraint petition challenging the judgment and sentence entered on his second-degree murder conviction.«1»Fuamaila argues his conviction is contrary to law under Andress and In re Personal Restraint of Hinton , 152 Wn.2d 853 , 100 P.3d 801 (2004), and violates due process. In Andress , our Supreme Court held that second-degree assault under former RCW 9A.32.050 (1)(b), cannot serve as the predicate crime to convict a defendant of second-degree felony murder. Andress , 147 Wn.2d at 604 .«2»In Hinton , the court clarified the Andress decision applied retroactively to all defendants convicted under former RCW 9A.32.050 (1)(b) (1976) and the 2003 amendments applied only prospectively. Hinton , 152 Wn.2d at 857 -58, 861. There is no dispute that Fuamaila's plea based on the alternative means charged under former RCW 9A.32.050 (1)(b) is invalid. But Fuamaila also pleaded guilty to committing murder in the second degree charged under former RCW 9A.32.050 (1)(a) as intentional murder. Fuamaila concedes he could not plead guilty to just one of the alternative means charged but argues he only admitted to committing felony murder


«1»Fuamaila was serving his sentence when the Washington Supreme Court decided Andress .

«2»Former RCW 9A.32.050 (1)(b) (1976) provides:

A person is guilty of murder in the second degree when:

. . .

(b) He commits or attempts to commit any felony other than those enumerated in RCW 9A.32.030 (1)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants.

As amended, RCW 9A.32.050 (1)(b) (2003) provides:

A person is guilty of murder in the second degree when:

. . .

(b) He or she commits or attempts to commit any felony, including assault, other than those enumerated in RCW 9A.32.030 (1)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants.


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predicated on assault and there was no factual basis for the trial court to accept his plea to intentional second-degree murder.

¶2 While the decisions in Andress and Hinton represent a significant change in the law that is material to Fuamaila's second-degree murder conviction based on the alternative means of felony murder, Andress and Hinton do not affect Fuamaila's second-degree murder conviction based on intentional murder. Therefore, the judgment and sentence for second-degree murder is valid on its face and Fuamaila's collateral attack is time-barred under RCW 10.73.090(1). In addition, Fuamaila has not established either nonconstitutional error that constitutes a fundamental defect inherently resulting in the miscarriage of justice or constitutional error that was actual or substantial. Fuamaila's plea to intentional murder in the second degree did not violate due process and there was a factual basis for the plea. We reject Fuamaila's arguments and deny his personal restraint petition.

FACTS

¶3 On March 6, 1994, Victor Lindsey and Tala Moli attended a formal dance at Rainier Beach High School together. March 6 was also Moli's birthday, and after the dance they went to her house for her birthday party. At approximately 2:30 A.M ., Lindsey and Moli's 14-year-old cousin, Halina Johnson, went out on the back porch to talk. Tauga Fuamaila, his older brother Misikupa Fuamaila, and their friend Jack Palelei were also on the back porch. When Tauga, Misikupa, and Palelei started bragging about their "west side" gang affiliations, Lindsey yelled at the group, "Fuck the west side!"«3»Tauga, Misikupa, and Palelei attacked Lindsey hitting him and stabbing him repeatedly. When police arrived, they found Lindsey dead on the back porch. Lindsey was stabbed 14 times in the stomach, back, and head areas. One witness told police she saw Tauga stab Lindsey at least two times. A neighbor, who lives two blocks


«3»Suppl. Br. of Pet'r, Ex. B.


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from Moli's house, gave the police a bloody 12-inch butcher knife found in front of her house. The next day, police interviewed Tauga and Misikupa. After giving Miranda «4»warnings, Tauga and Misikupa agreed to talk to the police. Tauga and Misikupa each told the police "that Tauga did the stabbing while Palelei beat [Lindsey] with his fists."«5»In a separate interview Palelei told police he and Misikupa beat Lindsey and he did not see who killed him.

¶4 The State charged Tauga and Palelei in juvenile court with murder in the second degree. Misikupa was charged with the same crime as an adult. In May 1994, the juvenile court declined jurisdiction and ordered Tauga and Palelei to be tried as adults. Thereafter, Tauga claimed his brother, Misikupa, stabbed Lindsey.«6»While some witnesses identified Tauga as the person who stabbed Lindsey, others identified Misikupa. Misikupa and Palelei were going to testify that Tauga stabbed Lindsey and killed him.«7»

¶5 The State charged Tauga Fuamaila with second-degree murder committed by the alternative means of intentional murder and felony murder predicated on assault under former RCW 9A.32.050 (1)(a) and (b) (1976).«8»

¶6 On June 16, 1994, Tauga pleaded guilty to the second-degree murder of Lindsey "as charged in the third amended information."«9»The Third Amended Information alleged as follows:

I, Norm Maleng, Prosecuting Attorney for King County in the name and by the authority of the State of Washington do


«4» Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

«5»Suppl. Br. of Pet'r, Ex. B.

«6»Suppl. Aff. of Judge Michael J. Trickey in Supp. of Mot. to Appoint Expert Investigator, State's Suppl. Resp. to Personal Restraint Pet. (State's Suppl. Br.), App. F.

«7»Aff. of Counsel in Supp. of Mot. for Severance of Defs. State's Suppl. Br., App. F.

«8»Palelei and Misikupa Fuamaila pleaded guilty to first-degree manslaughter.

«9»Suppl. Br. of Pet'r, Ex. C.


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accuse TAUGA FUAMAILA of the crime of Murder in the Second Degree, committed as follows: . . .

That the defendant[ ] TAUGA FUAMAILA . . . in King County, Washington on or about March 6, 1994, while committing and attempting to commit the furtherance of said crime and in the immediate flight therefrom, and with intent to cause the death of another person, did cause the death of Victor Lindsey, a human being, who was not a participant in said crime, and who died on or about March 6, 1994;

Contrary to RCW 9A.32.050 (1)(a) and (b). . . . «10»

¶7 In paragraph 4 of the Statement of Defendant on Plea of Guilty, Tauga states that he has been fully informed and understands the charges in the Third Amended Information:

I am charged with the crime(s) of Murder in the Second Degree . . . . The elements of this crime(s) are while committing crime of assault in the second degree, did cause death of another in furtherance of that assault and/or intentionally causing the death of another, who is not a participant in the assault.«11»

¶8 In paragraph 7, Tauga acknowledges he has received a copy of the Third Amended Information and that he is pleading guilty "as charged."

I plead guilty to the crime of murder in the second degree as charged in the Third amended information. I have received a copy of the information.«12»

¶9 In paragraph 11, Fuamaila made the following statement:

On or about March 6, 1994, in King County, I assaulted Victor Lindsey with a knife and he was killed by the knife during the assault.«13»


«10»Suppl. Br. of Pet'r, Ex. A.

«11»Suppl. Br. of Pet'r, App. C at 1.

«12» Id . at 6 (strikeouts omitted).

«13»Suppl. Br. of Pet'r, Ex. C.


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¶10 After the colloquy with Fuamaila regarding the charges, his rights, and the consequences of the plea, the trial court accepted Fuamaila's guilty plea.

I find the defendant's plea of guilty to be knowingly, intelligently and voluntarily made. Defendant understands the charges and the consequences of the plea. There is a factual basis for the plea. The defendant is guilty as charged.«14»

¶11 Fuamaila received a standard range sentence of 164 months. The Judgment and Sentence was entered on September 2, 1994.

¶12 Fuamaila filed a personal restraint petition in December 2003 asking this court to vacate his conviction for second-degree murder under Andress and Hinton .«15»

ANALYSIS

¶13 Fuamaila contends his 1994 conviction for second-degree murder is invalid and must be vacated under Andress and Hinton because he only pleaded guilty to second-degree felony murder predicated on assault and did not plead guilty to intentional second-degree murder. To obtain relief, Fuamaila must first overcome statutory and procedural bars to his personal restraint petition. RCW 10.73.090 ; RAP 16.4.

¶14 RCW 10.73.090 (1) bars review of an untimely collateral attack of a judgment and sentence: "No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction." RAP 16.4 incorporates the requirements of RCW 10.73.090 .


«14»Suppl. Br. of Pet'r, App. C at 11.

«15»Fuamaila initially filed a motion for modification of judgment and sentence in King County Superior Court in December 2003. The superior court transferred the motion to this court. This court stayed Fuamaila's personal restraint petition pending the Washington Supreme Court's decision in Hinton , 152 Wn.2d 853 . After Hinton was decided, the stay was lifted.


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[1-4]¶15 Fuamaila has the burden to show the judgment and sentence is invalid under RCW 10.73.090 (1) or an exception applies under RCW 10.73.100 . In re Pers. Restraint of Turay , 150 Wn.2d 71 , 82, 74 P.3d 1194 (2003). When a judgment is invalid on its face, there is no time limit to file a personal restraint petition under RCW 10.73.090(1). A judgment and sentence is invalid on its face when "the judgment and sentence evidences the invalidity without further elaboration." In re Pers. Restraint Hemenway , 147 Wn.2d 529 , 532, 55 P.3d 615 (2002). The documents considered as part of a plea agreement can be used to determine the facial validity of the judgment and sentence. Id . at 532-33.

¶16 There is no dispute Fuamaila's personal restraint petition is a collateral attack filed 11 years after the judgment and sentence was final or the judgment and sentence was entered by a court of competent jurisdiction. In addition, the plea documents unambiguously establish that Fuamaila pleaded guilty to murder in the second degree "as charged" by two alternative means - intentional murder and felony murder predicated on assault under former RCW 9A.32.050 (1)(a) and (b). We agree that the judgment and sentence based on the alternative means of felony murder under former RCW 9A.32.050 (1)(b) would be invalid under Andress and Hinton . But, we conclude the judgment and sentence based on intentional murder in violation of former RCW 9A.32.050 (1)(a) is valid on its face.

[5-9]¶17 Intentional murder and felony murder are not two different crimes, but alternate ways to commit the crime of murder in the second degree. State v. Berlin , 133 Wn.2d 541 , 552-53, 947 P.2d 700 (1997); State v. Johnson , 113 Wn. App. 482 , 487, 54 P.3d 155 (2002). When there are two or more alternate ways to commit a crime, it is permissible to charge both alternatives in the same count. State v. Scott , 64 Wn.2d 992 , 993, 395 P.2d 377 (1964). A defendant does not have the right to plead guilty to just one of the alternative means. State v. Bowerman , 115 Wn.2d 794 , 799, 802 P.2d 116 (1990); State v. Duhaime , 29 Wn.

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App. 842, 854-55, 631 P.2d 964 (1981). And under CrR 4.2, "[t]he statutory right to plead guilty is a right to plead guilty to the information as charged ." Bowerman , 115 Wn.2d at 799 .

¶18 In Bowerman , the State charged the defendant by amended information with the crime of first-degree murder based on two alternative means - aggravated premeditated murder and felony murder. Bowerman , 115 Wn.2d at 797 . In rejecting the defendant's argument that she had a statutory right to plead guilty to only the felony murder alternative, the court explained:

The statutory right to plead guilty recognized in Martin «16»cannot be stretched so far as to include a right to plead guilty to only one alternative means out of several that are charged. Where an information alleges more than one means of committing a single crime, the right to plead guilty is a right to plead guilty to the one crime charged.«17»

¶19 A recent case, In re Personal Restraint of Mayer , 128 Wn. App. 694 , 117 P.3d 353 (2005), addresses the impact of Andress on a plea to second-degree murder charged in the alternative under former RCW 9A.32.050 (1)(a) and (b). Relying on Bowerman , the court rejected the argument that the conviction was not knowing and intelligent and dismissed the personal restraint petition because the plea to second-degree intentional murder as charged in the alternative was valid.

¶20 As in Bowerman and Mayer , Fuamaila did not have the right to plead guilty to only one of the alternative means of committing the crime of second-degree murder. Bowerman , 115 Wn.2d at 799 ; Mayer , 128 Wn. App. at 703 . The State charged Fuamaila with second-degree murder committed by two alternative means under former RCW 9A .32.050(1)(a) and (b) - intentional murder and felony murder predicated on assault. Fuamaila pleaded


«16» State v. Martin , 94 Wn.2d 1 , 5, 614 P.2d 164 (1980) (holding that CrR 4.2(a) grants a defendant the right to plead guilty).

«17» Bowerman , 115 Wn.2d at 801 .


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guilty "as charged" and the judgment and sentence correctly reflects the finding that he was guilty of murder in the second degree in violation of RCW 9A.32.050 . Fuamaila fails to show the judgment and sentence is invalid within the meaning of RCW 10.73.090 (1).

[10, 11]¶21 Where the judgment and sentence is valid on its face, the one-year time limit to file a personal restraint petition applies. Tura y, 150 Wn.2d at 74 . Unless Fuamaila can prove that his petition falls within an exception to the one-year time bar, under RCW 10.73.100 , his collateral attack on the judgment and sentence is time-barred.

¶22 RCW 10.73.100 lists several exceptions to the one-year time bar for a collateral attack. RCW 10.73.100 (6) provides in pertinent part:

The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds:

. . .

(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction , sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.«18»

For RCW 10.73.100 (6) to apply to Fuamaila's personal restraint petition, the Andress and Hinton decisions must be a significant change in the law material to his second-degree murder conviction.

¶23 While Andress and Hinton are material to a second-degree felony murder conviction predicated on assault under former RCW 9A.32.050 (1)(b), Andress and Hinton


«18»(Emphasis added.)


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are not material to Fuamaila's second-degree murder conviction based on the alternative means of intentional murder under former RCW 9A.32.050 (1)(a). Fuamaila's collateral attack on his judgment and sentence based on intentional second-degree murder is untimely and barred by RCW 10.73.090 (1).

[12-14]¶24 Although we hold that Fuamaila's collateral attack is time-barred, we nonetheless address his substantive arguments under Andress and Hinton because " Andress represented an unexpected change in long standing decisional law." State v. Ramos , 124 Wn. App. 334 , 336, 101 P.3d 872 (2004). Even if Fuamaila's petition was not time-barred, he fails to meet his burden to establish either constitutional error that resulted in actual or substantial prejudice or nonconstitutional error that inherently results in a "complete miscarriage of justice." In re Pers. Restraint of Cook , 114 Wn.2d 802 , 813, 792 P.2d 506 (1990). Fuamaila acknowledges he was charged with committing second-degree murder in the alternative under former RCW 9A.32.050(1)(a) and (b). But he contends he only pleaded guilty to felony murder predicated on assault and did not plead guilty to intentional second-degree murder.

¶25 To obtain relief in a personal restraint petition, Fuamaila must show, by a preponderance of the evidence, actual and substantial prejudice resulting from alleged constitutional errors. Hinton , 152 Wn.2d at 858 -59 (citing In re Pers. Restraint of Isadore , 151 Wn.2d 294 , 298, 88 P.3d 390 (2004); Cook , 114 Wn.2d at 810 , 812). A constitutionally invalid guilty plea gives rise to actual prejudice. In re Pers. Restraint of Montoya , 109 Wn.2d 270 , 277, 744 P.2d 340 (1987).

[15]¶26 Due process requires that a guilty plea be made intelligently, voluntarily, and with knowledge that certain rights will be waived. Montoya , 109 Wn.2d at 277 . A plea cannot be voluntary "unless the defendant possesses an understanding of the law in relation to the facts." McCarthy v. United States , 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969). "[A]n accused must not only

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be informed of the requisite elements of the crime charged, but also must understand that his conduct satisfies those elements." In re Pers. Restraint of Hews , 99 Wn.2d 80 , 88, 660 P.2d 263 (1983).

[16]¶27 Fuamaila focuses exclusively on his brief written description in the plea statement to establish he only pleaded guilty to felony murder and did not plead guilty to intentional murder. The record does not support Fuamaila's position.

¶28 The third amended information charged Fuamaila with second-degree murder by alternative means based on both felony murder and intentional murder. Fuamaila confirmed he received a copy of the third amended information and acknowledged he was charged with second-degree murder committed by the alternative means of intentional and felony murder. The third amended information alleges Fuamaila committed second-degree murder:

. . . while committing and attempting to commit the crime of Assault in the Second Degree, and in the course of and in furtherance of said crime and in the immediate flight therefrom, and with intent to cause the death of another person, did cause the death of Victor Lindsey.«19»

¶29 At the beginning of the plea colloquy about the charges, Fuamaila's rights and the consequences of his plea, the prosecutor reiterated the elements of murder in the second degree and asked Fuamaila if he understood.

Do you understand that the elements of murder in the second degree are that you committed, while in the course of committing assault, Victor Lindsey died and/or that you intentionally caused the death of Victor Lindsey.«20»In response, Fuamaila replied, "Yeah."«21»

¶30 And, in the signed plea statement Fuamaila reiterated he was pleading guilty "as charged" in the third


«19»Suppl. Br. of Pet'r, Ex. A.

«20»Report of Proceedings (RP) (June 16, 1994) at 5.

«21» Id . at 5.


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amended information. The record establishes that Fuamaila understood he was pleading guilty to both felony murder and intentional murder.

¶31 Fuamaila's description of the crime in the plea statement is also consistent with pleading guilty to intentional murder and does not establish he only pleaded guilty to felony murder. In his "own words" Fuamaila states "On or about March 6, 1994, in King County, I assaulted Victor Lindsey with a knife and he was killed by the knife during the assault."«22»Fuamaila does not deny intent to commit murder; he admits using deadly force and that Lindsey was killed.

[17]¶32 Citing McCarthy , 394 U.S. 459, Fuamaila argues that a guilty plea cannot be knowing and intelligent unless the defendant expressly admits to the conduct constituting the crime. But McCarthy does not require that a defendant expressly admit to all conduct constituting the elements of the charged crime in order for his plea to be voluntary, knowing, and intelligent. Rather, McCarthy recognizes that the guilty plea itself "is an admission of all the elements of a formal criminal charge" which requires that the defendant possess "an understanding of the law in relation to the facts." McCarthy , 394 U.S. at 466. See also North Carolina v. Alford , 400 U.S. 25, 32, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (recognizing that an ordinary straight plea admits the commission of the crime charged, "even though there is no separate, express admission by the defendant that he committed the particular acts claimed to constitute the crime charged in the indictment").

[18-20]¶33 Fuamaila also argues that there was no factual basis for pleading guilty to the intentional murder of Lindsey.«23»Under CrR 4.2(d), "[t]he court shall not enter


«22»Suppl. Br. of Pet'r, Ex. C at 10.

«23»"A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010 (1)(a). Intent may be inferred "from a defendant's conduct where it is plainly indicated as a matter of logical probability." State v. Myers , 133 Wn.2d 26 , 38, 941 P.2d 1102 (1997).


924 In re Pers. Restraint of Fuamaila Mar. 2006
131 Wn. App. 908

a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea." Under CrR 4.2(d), before accepting a plea the judge must determine that defendant's conduct constitutes the charged offense. In re Pers. Restraint of Crabtree , 141 Wn.2d 577 , 585, 9 P.3d 814 (2000). A factual basis exists if there is sufficient evidence from which a jury could conclude the defendant is guilty. State v. Newton , 87 Wn.2d 363 , 370, 552 P.2d 682 (1976). The factual basis "may come from any source the trial court finds reliable, and not just the admissions of the defendant," Newton , 87 Wn.2d at 370 , "so long as the material relied upon by the trial court is made a part of the record."«24» State v. Osborne , 102 Wn.2d 87 , 95, 684 P.2d 683 (1984); accord In re Pers. Restraint of Keene , 95 Wn.2d 203 , 210 n.2, 622 P.2d 360 (1980); State v. Arnold , 81 Wn. App. 379 , 914 P.2d 762 (1996).

¶34 Here, the record contained not only the Statement of Defendant on Plea of Guilty but also the Third Amended Information and the Second Supplemental Certification for Determination of Probable Cause (Supplemental Certification).«25»Fuamaila claims the Supplemental Certification does not support the court's conclusion that he intended to kill Lindsey. We disagree. According to the Supplement Certification, the police found Lindsey dead with 14 stab wounds to his stomach, back, and head. Witnesses at the party told the police that Tauga Fuamaila, Misikupa Fuamaila, and Palelei "jumped Mr. Lindsey and began pummeling him" and "one of the men was armed with a knife and was stabbing the victim."«26»Another witness told police that she saw "Tauga Fuamaila stab Lindsey at least


«24»Without legal support, Fuamaila contends that in determining whether there is a factual basis for a "straight" plea of guilty, a court may only rely on the defendant's description. This argument is contrary to In re Personal Restraint of Keene and State v. Elmore , where the Washington Supreme Court looked to "any reliable source" in the context of a straight plea. State v. Elmore , 139 Wn.2d 250 , 262-63, 270, 985 P.2d 289 (1999); In re Personal Restraint of Keene , 95 Wn.2d 203 , 204-05, 210 n.2, 622 P.2d 360 (1980).

«25»Suppl. Br. of Pet'r, Ex. B.

«26» Id .


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two times."«27»A bloody "twelve-inch butcher knife" was found two blocks away from the party. After being arrested and given Miranda rights, both Tauga and Misikupa told the police that "Tauga did the stabbing while Palelei beat the victim with his fists."«28»According to Fuamaila's attorney, Misikupa and Palelei were both prepared to testify that Tauga killed Lindsey and Misikupa would testify "that Tauga was the person who stabbed Victor Lindsey to death."«29»And in the plea statement Fuamaila admits in his "own words" to using deadly force consistent with intentional murder. Sufficient evidence supports the court's finding that Fuamaila intentionally killed Victor Lindsey and a factual basis for the plea.

CONCLUSION

¶35 We conclude Fuamaila's collateral attack on his 1994 conviction for second-degree intentional murder is time-barred under RCW 10.73.090 (1). Andress and Hinton are not material to Fuamaila's conviction because he also pleaded guilty to second-degree murder based on the alternative theory of intentional murder. Even if his personal restraint petition was not time-barred, Fuamaila has not demonstrated by a preponderance of the evidence either nonconstitutional error that constitutes a fundamental defect resulting in the miscarriage of justice or constitutional error that was actual or substantial. We deny Fuamaila's personal restraint petition.\

BAKER and AGID , JJ., concur.


«27» Id .

«28» Id .; see also State's Suppl. Br., Exs. E, F.

«29»State's Suppl. Br., Ex. F.

No. 22818-5-III. Division Three. January 19, 2006.]

JACK FRENCH ET AL ., Respondents , v. URIBE , INC ., Petitioner .

[1] Judgment - Summary Judgment - Denial - Review - Discretionary Review. Under RAP 2.3(b)(4), an appellate court may grant discretionary review of a trial court's denial of a motion for summary judgment if the parties stipulate that the trial court's order "involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation."

[2] Judgment - Summary Judgment - Denial - Review - Interpretation of Facts. An appellate court reviewing a trial court's denial of a motion for summary judgment views the factual averments in the record and the reasonable inferences that may be drawn from those facts in the light most favorable to the nonmoving party.

[3] Judgment - Summary Judgment - Review - Issues of Law. Questions of law in a summary judgment proceeding are reviewed de novo.

[4] Judgment - Summary Judgment - Burden on Moving Party - In General. A party seeking a summary judgment has the burden of demonstrating the absence of a genuine dispute as to any material fact in the case.

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[5] Judgment - Summary Judgment - Determination - Interpretation of Facts. When ruling on a motion for summary judgment, a court must draw reasonable inferences from the factual averments in the record against the moving party.

[6] Judgment - Summary Judgment - Determination - In General. A motion for summary judgment should be granted if a reasonable person could reach but one conclusion from all the factual averments in the record and the movant is entitled to judgment as a matter of law.

[7] Industrial Insurance - Employer's Immunity - Scope - In General. The Industrial Insurance Act (Title 51 RCW) provides the sole remedy for all work-related injuries that do not fall within the deliberate intent exception of RCW 51.24.020 .

[8] Industrial Insurance - Employer's Immunity - Scope - Tort Claim - Intent To Injure - Elements. An employer is not subject to tort liability for a worker's injuries under the deliberate intent exception of RCW 51.24.020 unless (1) the employer had actual knowledge that certain injury would occur and (2) the employer willfully disregarded that knowledge. The statute is narrowly construed to require a specific intent to injure. Neither gross negligence nor a failure to observe safety procedures and safety laws constitutes a specific intent to injure; nor is an act that has a substantial certainty of producing injury sufficient to show deliberate intention.

[9] Industrial Insurance - Employer's Immunity - Scope - Tort Claim - Intent To Injure - Specific Intent - Actual Knowledge - No Previous Record of Harm. An employer is not subject to tort liability for a worker's injuries under the deliberate intent exception of RCW 51.24.020 if there does not exist a previous record of a pattern of injuries caused by continuing practices by the employer sufficient to charge the employer with actual knowledge of certain injury and willful disregard of that knowledge.

[10] Industrial Insurance - Employer's Immunity - Scope - Tort Claim - Intent To Injure - What Constitutes - Work Plan Placing Employees in Peril - Not Communicated to Employees. The fact that the employer had a work plan that placed employees in peril is insufficient to establish tort liability for a worker's injuries under the deliberate intent exception of RCW 51.24.020 if the work plan was not communicated to employees.

[11] Industrial Insurance - Employer's Immunity - Scope - Tort Claim - Intent To Injure - What Constitutes - Dangerous Situation. The mere presence of a dangerous situation is insufficient to establish deliberate intent by an employer for purposes of the deliberate intent exception of RCW 51.24.020 to the exclusive remedy provisions of the Industrial Insurance Act (Title 51 RCW).

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[12] Limitation of Actions - Torts - Limitation Period - Two Years - Applicability - Scope - Specifically Enumerated Torts. The two-year limitation period of RCW 4.16.100 (1) applies only to specifically enumerated torts; the statute does not contain any general language incorporating other torts.

[13] Limitation of Actions - Three-Year Limitation Period - Applicability - Scope - In General. The three-year limitation period of RCW 4.16.080 (2) applies to any injury to a person or to a person's rights not enumerated in another statutory limitation provision.

[14] Limitation of Actions - Industrial Insurance - Employer's Immunity - Scope - Tort Claim - Limitation Period. A tort claim against an employer for a worker's injuries under the deliberate intent exception of RCW 51.24.020 is subject to the three-year limitation period of RCW 4.16.080 (2).

[15] Negligence - Rescue - Rescue Doctrine - Theory of Recovery. The rescue doctrine allows a rescuer to recover damages from the rescued person if the rescuer is injured during the rescue of a person who negligently caused the dangerous situation that invited the rescue.

[16] Negligence - Rescue - Rescue Doctrine - Elements. The four elements of the rescue doctrine are (1) a negligent act by the defendant that is the proximate cause of peril to another person; (2) the peril to the other person is imminent; (3) the circumstances presented to the rescuer must be such that a reasonably prudent person, under the same or similar circumstances, would conclude that an imminent peril exists; and (4) the rescuer exercises reasonable care in effecting the rescue.

[17] Negligence - Rescue - Rescue Doctrine - Purposes. The rescue doctrine (1) informs a tortfeasor of the foreseeability that a rescuer will come to the aid of a person imperiled by the tortfeasor's actions and that the tortfeasor owes the rescuer a duty similar to the duty owed to the person the tortfeasor imperils and (2) negates the presumption that the rescuer assumes the risk of injury by knowingly undertaking a dangerous rescue, so long as the rescuer does not act rashly or recklessly.

[18] Negligence - Rescue - Rescue Doctrine - Negligence - Necessity. The rescue doctrine applies to tortfeasors in general and is not limited solely to negligence cases.

[19] Torts - Causation - Legal Causation - Question of Law or Fact - Determination. Legal causation is a question of law and rests on policy concerns about how far a tort defendant's potential liability should extend.

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[20] Industrial Insurance - Employer's Immunity - Scope - Tort Claim - Rescue Doctrine - Applicability. Under the rescue doctrine, a worker who is injured in the course of effecting a rescue of an injured coworker does not have an action for damages against the employer under RCW 51.24.020 of the Industrial Insurance Act (Title 51 RCW) unless the coworker's injury resulted from the employer's deliberate intent to produce such injury.

Nature of Action: A worker who was injured in a work-related electrical accident and the wife of a worker who was killed in a related accident each sought damages under the deliberate intent exception to the exclusive remedy provisions of the Industrial Insurance Act. The injured worker was injured while trying to rescue the worker who died.

Superior Court: The Superior Court for Franklin County, No. 02-2-50068-7, Dennis D. Yule, J., on February 11, 2004, dismissed the injured worker's rescue doctrine claim and denied the employer's motion for summary judgment.

Court of Appeals: Holding that the action was subject to a three-year statutory limitation period, that the record did not support a finding that the employer had actual knowledge that employee injury was certain to occur, and that the injured worker is not entitled to recover damages under the rescue doctrine, the court affirms the trial court's orders.

Andrew C. Bohrnsen (of Law Office of Bohrnsen & Stowe, P.S. ), for petitioner .

Diehl R. Rettig ; and Simeon Osborn and Susan Machler (of Osborn Machler ), for respondents .

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¶1 RUNGE, J.

«*»- Generally, Washington's Industrial Insurance Act (Act), Title 51 RCW, precludes employee recovery beyond the compensation provided for in the Act. However, RCW 51.04.010 allows tort recovery if the employer deliberately intended to injure the employee. While working for Uribe, Inc., William Meier was killed and Jack French was permanently injured, as the result of an electrical accident. Mr. French and Tina Meier filed this action seeking recovery outside of the Act. The trial court denied Uribe, Inc.'s motion for summary judgment, concluding (1) the evidence was sufficient to raise a question of fact as to deliberate intent, and (2) the claims were not barred by the statute of limitations. Further, the trial court dismissed Mr. French's claim under the rescue doctrine. This court granted the parties' joint motion for discretionary review.

¶2 We reverse the denial of Uribe, Inc.'s motion for summary judgment because the evidence was insufficient to raise a question of fact as to deliberate intent. We affirm the trial court's dismissal of Mr. French's claim.

¶3 This cause of action arose out of an electrical accident which injured Jack French and caused the death of William Meier. On February 5, 1999, at the time of the accident, both men were employed by Uribe, Inc., and on the jobsite of the Berg Farms project where irrigation pipe was being installed.

¶4 The Berg Farms project required laying several miles of 42-inch irrigation pipe into excavated ditches from the Columbia River to the fields miles away. The route of the pipe ran under some high voltage power lines. WAC 296-155-525(3)(e)(i) establishes a 10-foot rule forbidding any piece of equipment or machinery from coming within 10 feet of an overhead electrical line.

¶5 A Caterpillar MD-7 Pipe Layer (MD-7) with a 26-foot boom was used to move the pipe to its designation. Charles Craig was the operator of the MD-7 at the time of the


«*»Judge Carrie Runge is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150 .


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accident. While Mr. Craig had 35 years of experience in operating an MD-7 in 25 countries, he was visiting the site of the Berg Farms project when he was asked to operate the MD-7.

¶6 William Meier was assigned to assist Mr. Craig in moving the pipe, which was 35 feet long and 6,200 pounds. Mr. Meier acted as a "swamper." As a swamper, Mr. Meier's job duties included (1) acting as an assistant to Mr. Craig, (2) attaching the pipe to the boom, and (3) holding onto the metal pipe to keep it in line.

¶7 To move the pipe, the MD-7 had to drive over a berm approximately two feet high. As the MD-7 came off of the berm, the pipe came into contact with the north energized phase wire. The boom and the pipe became energized and Mr. Meier fell to the ground, unconscious. Mr. Craig immediately backed the MD-7 up onto the berm. Mr. French, who had been leaving for lunch, ran over to assist Mr. Meier. When Mr. French reached out to steady the swinging pipe, the MD-7's boom once again came into contact with the phase wire. Mr. French was electrocuted, suffering permanent injuries. Mr. Meier died at the hospital.

¶8 Uribe, Inc., purchased the MD-7 a little over one month prior to the accident. The MD-7 was purchased from Lou Cousineau.«1»Mr. Cousineau advised Uribe, Inc., that he had manufactured the boom on the MD-7. The boom was 26 feet long. The stock boom for the MD-7 is 15 feet long. The manufacturer's specifications called for a boom less than 20 feet long.

¶9 William Ryan investigated the accident for the electrical company. As part of his investigation, Mr. Ryan interviewed Mr. Uribe, the owner of Uribe, Inc. Mr. Ryan's affidavit states:

The plan, as told to me by Mr. Uribe, was to get the boom as close to the wire as possible, drop the pipe on the ground, move the boom to the other side of the wire, and pick the pipe back up


«1»Mr. Cousineau was a defendant to this action but settled prior to the parties' joint motion for discretionary review.


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again. This procedure would necessarily bring the boom within ten feet of the power line, which would require the employer to de-energize the power line.

Clerk's Papers (CP) at 656. Mr. Uribe denies telling Mr. Ryan that this was the work plan.

¶10 Mike Hart, an engineer, opined that the 26-foot boom length significantly altered the load capacity of the MD-7 in use on the Berg Farms project. According to Mr. Hart, based on the load capacity of the 26-foot boom, and the estimated weight of the pipe, the MD-7 with the pipe attached to it would not be able to travel under the power lines and maintain the required 10-foot clearance of the line.

¶11 Charles Craig denies the existence of a work plan. According to Mr. Craig, the job of moving the pipe was an operator judgment thing, and at no time did Mr. Uribe or the two Uribe, Inc., foremen, instruct him on how to move the pipe, nor was he told to ignore the 10-foot rule. Mr. Craig was neither advised of nor aware of the length of the boom on the MD-7.

¶12 Uribe, Inc., was not aware of prior line strikes. Mr. Craig denied knowledge of prior line strikes, although he was told that he hit a guide wire (an unenergized wire) on his first day on the job. According to Mr. Craig, he was told after the fact of the guide wire strike. Mr. Craig denied having personal knowledge of actually striking a guide wire.

[1-3]¶13 Generally, parties may not appeal the denial of a motion for summary judgment. RAP 2.2(a); Sea-Pac Co. v. United Food & Commercial Workers Local Union 44, 103 Wn.2d 800 , 801-02, 699 P.2d 217 (1985). However, an appellate court may grant discretionary review if the parties stipulate "that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation." RAP 2.3(b)(4). The parties have so stipulated.

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This court granted discretionary review. When we review a trial court's summary judgment order, all facts and reasonable inferences are considered in the light most favorable to the nonmoving party, and questions of law are reviewed de novo. Coppernoll v. Reed , 155 Wn.2d 290 , 296, 119 P.3d 318 (2005).

[4-6]¶14 Summary judgment is properly granted when the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Hutchins v. 1001 Fourth Ave. Assocs ., 116 Wn.2d 217 , 220, 802 P.2d 1360 (1991). The burden is on the party moving for summary judgment to demonstrate there is no genuine dispute as to any material fact and reasonable inferences from the evidence must be resolved against the moving party. Lamon v. McDonnell Douglas Corp ., 91 Wn.2d 345 , 349, 588 P.2d 1346 (1979) (citing Morris v. McNicol , 83 Wn.2d 491 , 494-95, 519 P.2d 7 (1974)). The motion should be granted only if, from all of the evidence, a reasonable person could reach but one conclusion. Lamon , 91 Wn.2d at 350 (citing Morris, 83 Wn.2d at 494 -95).

(1) Is there an issue of material fact as to whether Uribe, Inc. had a deliberate intent to injure William Meier and Jack French?

[7, 8]¶15 Generally, an employee's sole remedy for injuries sustained on the jobsite is found within the provisions of the Act. However, if the injuries are caused by the deliberate intention of the employer, the employee may maintain a cause of action against the employer for damages in excess of those compensated for under the Act.

¶16 RCW 51.24.020 states:

If injury results to a worker from the deliberate intention of his or her employer to produce such injury, the worker or beneficiary of the worker shall have the privilege to take under this title and also have cause of action against the employer as if this title had not been enacted, for any damages in excess of compensation and benefits paid or payable under this title.

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To proceed under RCW 51.24.020 , the employee must demonstrate that the employer had actual knowledge that certain injury would occur and the employer willfully disregarded this knowledge. Birklid v. Boeing Co., 127 Wn.2d 853 , 865-66, 904 P.2d 278 (1995). This exception is narrowly construed to require specific intent to injure. Id. at 860. Neither gross negligence nor failure to observe safety procedures and laws governing safety constitutes a specific intent to injure. Biggs v. Donovan-Corkery Logging Co., 185 Wash. 284 , 286-88, 54 P.2d 235 (1936); Peterick v. State, 22 Wn. App. 163 , 189, 589 P.2d 250 (1977), overruled on other grounds by Stenberg v. Pac. Power & Light Co., 104 Wn.2d 710 , 709 P.2d 793 (1985). Nor is an act that has a substantial certainty of producing injury sufficient to show deliberate intention. Higley v. Weyerhaeuser Co., 13 Wn. App. 269 , 271-72, 534 P.2d 596, review denied , 85 Wn.2d 1013 (1975).

¶17 Uribe, Inc., contends that Ms. Meier failed to establish a question of material fact as to whether it deliberately intended to injure Mr. Meier and Mr. French by electrocution. Ms. Meier contends that Uribe, Inc., was well aware that its workers were routinely operating within the 10-foot zone of energized electrical wires, that no safety measures were taken to prevent the boom from striking a wire, and that no contact was made with the power company to de-energize the lines.

[9]¶18 While there is evidence that Mr. Craig previously struck a guide (unenergized) wire, there is no evidence that Uribe, Inc., had knowledge that its employees had been injured by wire strikes on live lines. Significantly, "the courts have refused to find deliberate intent where there was no previous record of harm sufficient to charge the employer with knowledge of certain injury and willful disregard of that knowledge." Byrd v. Sys. Transp., Inc., 124 Wn. App. 196 , 204, 99 P.3d 394 (2004).

¶19 In Byrd , a trainee with a trucking company died of dehydration while on the road. During the trip, she had complained about not feeling well. Eventually, she moved to

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the cab of the truck where she slept for approximately two days. Her co-worker then discovered that she had died. An action was brought under RCW 51.24.020 . The court denied the trucking company's motion for summary judgment. However, the appellate court reversed, concluding that the plaintiff failed to establish that the trucking company caused the trainee's injuries, had actual knowledge that the trainee would likely die, and willfully disregarded such knowledge. Byrd, 124 Wn. App. at 205 . The court noted that courts have consistently applied Birklid to require a pattern of recurring employee complaints of injuries caused by continuing practices by the employer. Id. at 203.

¶20 Ms. Meier relies on Hope v. Larry's Markets, 108 Wn. App. 185 , 29 P.3d 1268 (2001); Stenger v. Stanwood School District, 95 Wn. App. 802 , 977 P.2d 660 (1999); and Vallandigham v. Clover Park School District No. 400, 119 Wn. App. 95 , 79 P.3d 18 (2003), aff'd , 154 Wn.2d 16 , 109 P.3d 805 (2005), to support her argument that the trial court properly denied Uribe, Inc.'s motion for summary judgment. However, the cases cited by Ms. Meier support the holding in Byrd.

¶21 In Hope , the employer used a cleaning solution that caused an employee to develop rashes. When informed of the rashes, the employer supplied rubber gloves and a lotion. These remedial measures were ineffective. Hope, 108 Wn. App. at 190 . Consequently, the court concluded that the matter could proceed to trial for a determination as to whether the employer deliberately intended to injure the employee. Id. at 195.

¶22 In Stenger , the school district was aware of the injuries inflicted by a developmentally disabled child but still required employees to care for the student. Stenger, 95 Wn. App. at 810 -12. When Ms. Stenger was seriously injured, she filed suit under RCW 51.24.020 . Id. at 803-04. The court allowed the case to go to the jury.

¶23 In Vallandigham, the court considered an employment environment where the violent behavior of a special education student had caused numerous injuries to staff

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members over a four-year period. Vallandigham v. Clover Park Sch. Dist. No. 400 , 154 Wn.2d 16 , 31, 109 P.3d 805 (2005). Despite these injuries, the court concluded that the first prong of Birklid had not been met because the employer was implementing remedial measures and could not know with certainty that injuries to the staff would continue. Id. at 33. Vallandigham disapproved of the conclusion in Stenger and Hope that the second prong of Birklid could be established if attempted remedial measures were ineffective. Id. at 33-34.

¶24 These cases demonstrate the conclusion of Byrd. A showing of a pattern of injuries is required in order to meet the first prong of Birklid . Here, Ms. Meier has failed to present any facts establishing a pattern of injuries to Uribe, Inc., employees caused by line strikes. Absent such evidence, Ms. Meier has failed to establish actual knowledge that injury is certain to occur.

[10]¶25 Ms. Meier next contends that the existence of a work plan designed to put employees in close contact with energized power lines raises a question of fact as to deliberate intent. She asks the court to consider the affidavit of Mr. Ryan. Mr. Ryan stated that Mr. Uribe explained that the plan was to get the boom as close to the wire as possible, drop the pipe, move the boom to the other side, and then pick up the pipe again. Uribe, Inc., contends this testimony is inadmissible, while Ms. Meier argues that this testimony is admissible as an admission by a party opponent. ER 801(d)(2).

¶26 Even if we assume this statement is admissible and Mr. Uribe had a work plan that placed employees in peril, there is no evidence raising a question of fact as to whether this work plan was communicated to Mr. Craig. Mr. Craig denied the existence of a work plan. According to Mr. Craig, the movement and placement of the pipe was left solely to the judgment of the operator.

[11]¶27 Additionally, the mere presence of a dangerous situation is not sufficient to establish deliberate intent. In Schuchman v. Hoehn, 119 Wn. App. 61 , 79 P.3d 6 (2003), a

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14-year-old employee was injured by an ice auger. In their action, the parents alleged six violations of the child labor laws. Id. at 72. One of the employers told the child's mother they knew this was going to happen, they just did not know when, nor how to fix it. Id. at 65. Despite this admission, the court concluded that the employer did not have certain knowledge that the auger would injure the child. Id. at 72. The court found that gross negligence and failure to follow safety procedures is insufficient to establish deliberate intent. Id.

¶28 The second prong in Birklid requires a showing that is more than negligence or gross negligence. Birklid, 127 Wn.2d at 860 . Because Ms. Meier has failed to meet the requirements of the first prong, she cannot establish the second prong.

¶29 Uribe, Inc., contends that Mr. French was not performing work for it at the time of the accident and cannot bring a claim under RCW 51.24.020 .

¶30 Like Ms. Meier, Mr. French cannot establish that Uribe, Inc., had certain knowledge that he would be injured. Additionally, as explained below, any claim that Mr. French has should be based on the rescue doctrine. However, this claim also fails, as Ms. Meier cannot establish deliberate intent with regard to this claim.

¶31 The trial court erred by denying Uribe, Inc.'s motion for summary judgment based on its conclusion that there was sufficient evidence to raise a question of fact as to deliberate intent.

(2) Did the court err by applying a three-year statute of limitations?

¶32 Uribe, Inc., argues that the two-year statute of limitations found in RCW 4.16.100 applies to cases brought pursuant to RCW 51.24.020 .

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¶33 RCW 4.16.100 provides for a two-year statute of limitations for:

(1) An action for libel, slander, assault, assault and battery, or false imprisonment.

(2) An action upon a statute for a forfeiture or penalty to the state.

[12]¶34 RCW 4.16.100 does not apply to cases under RCW 51.24.020 . The two-year period set forth in RCW 4.16.100 applies to specifically enumerated torts and does not contain any general language incorporating other torts.

[13]¶35 Prior to the enactment of RCW 51.24.020 , the three-year statute of limitations contained in RCW 4.16.080 applied to actions by an employee against the employer. Riste v. Gen. Elec. Co., 47 Wn.2d 680 , 682, 289 P.2d 338 (1955). RCW 4.16.080 (2) states as follows:

The following actions shall be commenced within three years:

. . . .

(2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated.

Significantly, RCW 51.24.020 provides that the employee shall have a cause of action against the employer "as if this title had not been enacted." Moreover, Washington courts have concluded that RCW 4.16.080 (2) applies to any injury to a person or their rights not enumerated in other statute of limitations provisions. Stenberg, 104 Wn.2d at 720 ; Bader v. State, 43 Wn. App. 223 , 227, 716 P.2d 925 (1986).

[14]¶36 We conclude that the trial court did not err by concluding that the three-year statute of limitations applies. Because RCW 4.16.080 (2) applies, we need not address Uribe, Inc.'s argument that the catch-all provision, RCW 4.16.130 , applies.

(3) Is Jack French entitled to claim rights under the rescue doctrine?

[15, 16]¶37 The rescue doctrine allows a rescuer to recover damages from the rescued person if the rescuer is

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injured during the rescue of a person who negligently caused the dangerous situation that invited the rescue. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931 , 943, 913 P.2d 377 (1996). The elements of the rescue doctrine are: (1) that the unlawful acts of the defendant are the proximate cause of the danger to the other person; (2) that the danger to the person must be imminent; (3) that a reasonably prudent person under the same conditions would determine that a peril existed; and (4) that the rescuer must use reasonable care in effecting the rescue. French v. Chase, 48 Wn.2d 825 , 297 P.2d 235 (1956).

[17]¶38 The rescue doctrine serves two purposes. First, the rescue doctrine notifies tortfeasors that it is foreseeable a rescuer will come to the aid of the person imperiled by a tortfeasor's conduct, and that the tortfeasor owes the rescuer a duty similar to the duty owed to the person the tortfeasor imperils. Second, the doctrine negates the presumption that the rescuer assumed the risk of injury by undertaking the rescue, as long as the rescuer does not act rashly or recklessly. McCoy v. Am. Suzuki Motor Corp., 136 Wn.2d 350 , 355, 961 P.2d 952 (1998).

¶39 Mr. French contends the court erred by determining he is not entitled to rights under the rescue doctrine. Uribe, Inc., contends the rescue doctrine does not apply because this right was given up as part of the compromise made to create workers compensation. Uribe, Inc., also contends that the rescue doctrine does not apply because it is based on negligence principles.

[18-20]¶40 There is no indication that RCW 51.24.020 precludes the application of the rescue doctrine. Further, this provision states that if an injury results from the deliberate intention of the employer, the worker can recover pursuant to the title and also have a cause of action as if the title had not been enacted.

¶41 Further, Uribe, Inc.'s argument that the rescue doctrine applies only in negligence cases is not persuasive. While many of the cases, like French, describe the doctrine

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in terms of negligence concepts, in McCoy, the court applied the doctrine to tortfeasors in general. McCoy was a products liability case and the defendant was subject to strict liability and was not a negligent tortfeasor.

¶42 Uribe, Inc., maintains that Mr. French must meet the requirements of RCW 51.24.020 in order to proceed with a claim based on the rescue doctrine. But McCoy explains that one of the purposes of the rescue doctrine is to show the tortfeasor that he or she owes the same duty to the rescuer that was owed to the person imperiled. In other words, Mr. French need not establish the requirements of RCW 51.24.020 as long as the person in peril can.

¶43 Uribe, Inc., also argues that Mr. French cannot succeed with a claim under the rescue doctrine because he cannot establish legal causation. According to Uribe, Inc., legal causation here consists of meeting the requirements contained in RCW 51.24.020 .

¶44 Legal causation is a question of law and rests on policy concerns about how far the defendant's potential liability should extend. Hartley v. State, 103 Wn.2d 768 , 779, 698 P.2d 77 (1985). An employer who violates RCW 51.24.020 should anticipate that a fellow employee would come to the aid of the employee placed in danger.

¶45 In summary, the rescue doctrine should apply to workers injured while assisting another worker who establishes a claim under RCW 51.24.020 . While this provision is narrowly applied, once a worker is successful, the employer should be responsible for other employees rescuing the imperiled worker because the employer owes the rescuers the same duty.

¶46 In the present case, Ms. Meier cannot establish a claim pursuant to RCW 51.24.020 and, therefore, Mr. French's claim pursuant to the rescue doctrine must also fail. As a result, the court erred by concluding Mr. French was not entitled to claim rights under the rescue doctrine but correctly dismissed his claim.

16 French v. Uribe, Inc. Jan. 2006
132 Wn. App. 1

¶47 We reverse the trial court's decision denying Uribe, Inc.'s motion for summary judgment and affirm the dismissal of Mr. French's claim.\

KATO , C.J., and BROWN , J., concur.