   IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



JOSEPH M. LOWE,                                 No. 70361-7-1
                                                                                                      \   1


                    Appellant,                  DIVISION ONE

      v.

                                                                                   V.3

PCL CONSTRUCTION SERVICES                       UNPUBLISHED OPINION                      ' 'tj—-t
INC.; and THE DEPARTMENT OF
                                                                                   ro
LABOR AND INDUSTRIES, STATE                                                              -   ..*••.



OF WASHINGTON,                                                                     VI
                                                                                         '- •"r



                    Respondents.                FILED: Julv 29. 2013

      Spearman, A.C.J — The sole issue in this appeal is whether the superior court,

acting in its capacity as an appellate court hearing an appeal from the Board of

Industrial Insurance Appeals (Board), had the authority to award the Department of

Labor & Industries (Department) its cost of transcribing a perpetuation deposition used

at the hearing before the Board. Rejecting Joseph Lowe's arguments that the superior

court had no such authority, we affirm the award of costs.

                                         FACTS


      Joseph Lowe injured his hip while working for PCL Construction Services, Inc.

(PCL). The Department issued an order accepting responsibility for Lowe's hip condition
No. 70361-7-1/2




and finding that the condition was proximately caused by his industrial injury. PCL

appealed the Department's decision to the Board.

       At the hearing before the Board, PCL presented the testimony of its witnesses

through perpetuation depositions. The Board reversed the Department order, finding

that the preponderance of the evidence showed Lowe's hip condition was not the

proximate cause of his industrial injury.

       Lowe appealed to the Pierce County Superior Court, and the superior court

affirmed the Board's decision. The court awarded PCL its costs under chapter 4.84

RCW, including $200 in statutory attorney fees and $1,161.65 in deposition transcription

costs, for a total of $1,361. 65. Lowe moved for reconsideration on the issue of costs,

and the superior court denied the motion. Lowe appeals, assigning error only the

superior court's decision to award costs associated with the transcription of the

perpetuation depositions.

                                       DISCUSSION


       The only question at issue in this appeal is whether the superior court, acting in

its appellate capacity, had the authority to award the cost of a perpetuation deposition

under chapter 4.84 RCW. Statutory interpretation is a question of law that we review de

novo. State v. Gray, 174Wn.2d 920, 926, 280 P.3d 1110(2012). Our primary duty in

construing a statute is to ascertain and carry out the legislature's intent. Lake v.

Woodcreek Homeowners Ass'n. 169 Wn.2d 516, 526, 243 P.3d 1283 (2010).

       A superior court is authorized to award costs to a prevailing party:
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       In any action in the superior court of Washington the prevailing
       party shall be entitled to his or her costs and disbursements; but
       the plaintiff shall in no case be entitled to costs taxed as attorneys'
       fees in actions within the jurisdiction of the district court when
       commenced in the superior court.

RCW 4.84.030. The definition of "costs" that a superior court has the authority to

award is set forth in RCW 4.84.010, and includes the reasonable expense of

depositions used at trial:

       The measure and mode of compensation of attorneys and
       counselors, shall be left to the agreement, expressed or implied, of
       the parties, but there shall be allowed to the prevailing party upon
       the judgment certain sums for the prevailing party's expenses in the
       action, which allowances are termed costs, including, in addition to
       costs otherwise authorized by law, the following expenses:



       (7) To the extent that the court or arbitrator finds that it was
       necessary to achieve the successful result, the reasonable expense
       of the transcription of depositions used at trial or at the mandatory
       arbitration hearing: PROVIDED, That the expenses of depositions
       shall be allowed on a pro rata basis for those portions of the
       depositions introduced into evidence or used for purposes of
       impeachment.

RCW 4.84.010(7).

       Lowe argues the superior court had no authority to award the cost of a

perpetuation deposition because it was acting "not as a trial court," but was instead

"sit[ting] only in an appellate capacity." Opening Brief at 5. Lowe does not cite, however,

any authority that supports his argument. Instead, he notes the language of the statute

provides for costs incurred "in the action." See ]d. (quoting RCW 4.84.010 and .030).

According to Lowe, "in the action" refers only to a trial before the superior court; not to a

trial before an administrative body. But nothing in the statutory scheme supports this

interpretation. Ifthe legislature had intended to limit the superior court's authority to
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award costs in such a way it would have done so. In fact, the legislature did so with

respect to costs incurred for actions within the jurisdiction of district courts:

       ... but the plaintiff shall in no case be entitled to costs taxed as attorneys' fees in
       actions within the jurisdiction of the district court when commenced in the
       superior court

RCW 4.84.030. There is no such prohibition against costs incurred at a trial before an

administrative body in RCW 4.84.030 or .010.

       We also note that Washington courts have repeatedly held that an award of costs

under chapter 4.84 RCW applies in the context of a superior court sitting in its appellate

capacity. For example, in Ferencak v. Dep't. Labor & Industries. 142 Wn. App. 713, 175

P.3d 1109 (2008), we explained why it is proper for the superior court, in an industrial

insurance appeal, to award costs to the prevailing party:

       The superior court awarded the Department $200 in statutory
       attorney fees under RCW 4.84.030. Ferencak argues that this is an
       improper award of attorney fees under RCW 51.52.130, which states
       when attorney fees should be awarded in an industrial insurance
       appeal. But these two provisions do not deal with the same kind of
       attorney fees. RCW 51.52.130 allows for an award of actual attorney
       fees incurred by an injured worker or employer on appeal to the
       superior or appellate court. In contrast, RCW 4.84.030 allows the
       superior court to award costs to the prevailing party, and under RCW
       4.84.080, those costs include a nominal statutory attorney fee award
       of $200. RCW 51.42.140 states that the rules of civil procedure apply
       in all industrial insurance appeals to the superior court, and the
       Washington Supreme Court has held that this provision allows the
       court to impose statutory attorney fees under RCW 4.84.030. Thus,
       we affirm the superior court's award of costs in the form of statutory
       attorney fees to the Department. (Footnote omitted)

Feren6ak. 142 Wn. App. at 729-30: see also Black v. Dep't. of Labor & Indus., 131

Wn.2d 547, 557-58, 933 P.2d 1025 (1997) (superior court has authority to award
No. 70361-7-1/5




statutory fees while sitting in appellate capacity) and Allan v. Dept. of Labor & Indus.. 66

Wn. App. 415, 422-23, 832 P.2d 489 (1992) (same).

       Lowe cites several cases that discuss when a trial court's award of costs for


depositions was appropriate. See Opening Brief at 5-6 (citing Kiewit-Grice v. State. 77

Wn. App. 867, 895 P.2d 6 (1995); Tombari v. Blankenship-Dixon Co.. 19 Wn. App. 145,

574P.2d401 (1978): Most Worshipful Prince Hall Grand Lodge of Washington v. Most


Worshipful Universal Grand Lodge, 62 Wn.2d 28. 381 P.2d 130(1963)). None of these

cases discuss, however, the authority of a superior court to award costs when sitting in

its appellate capacity. Rather, they simply hold that the prevailing party is entitled to the

cost of depositions only if the depositions were taken and used for trial purposes.

Kiewit-Grice. 77 Wn. App. at 874: Tombari. 19 Wn. App. at 150: Prince Hall Grand

Lodge, 62 Wn.2d at 43. Here, the depositions at issue were perpetuation depositions

taken for the purpose of preserving testimony to be used at the Board hearing and, if an

appeal was taken, as part of the certified board record.

       Lowe next argues that the superior court erred in awarding PCL the costs of

depositions because depositions taken during Board proceedings are "inherently

different from depositions taken in a civil trial[.]" Appellant's Brief at 7. Lowe cites WAC

263-12-117(1). But that regulation is of no help to Lowe; it simply reads: "[t]he industrial

appeals judge may permit or require the perpetuation of testimony by deposition!.]"

Lowe also cites WAC 263-12-117(2), which states that "[e]ach party shall bear its own

costs except when the industrial appeals judge allocates costs to parties or their
No. 70361-7-1/6




representatives." But nothing in this regulation precludes the superior court from

awarding costs to the prevailing party under RCW 4.84.010 and .030. Given Lowe has

cited no authority in support of this argument, we decline to address it further. Lowe also

notes that under RCW 51.52.110, the certified board record is filed in the superior court

by the Board, at no cost to the parties. Although there is no cost associated with having

the Board file the transcripts in the superior court, this does not mean there was no cost

associated with taking the depositions in the first place, and again, nothing in RCW

51.52.110 precludes the superior court from awarding costs to the prevailing party. We

reject these arguments.

       Lowe further argues that an award of costs for perpetuation depositions is

incompatible with the Industrial Insurance Act. According to Lowe, because the

Industrial Insurance Act permits an employee claimant who prevails in a superior court

appeal to be awarded attorney and witness fees (see RCW 51.52.130(1)), and because

there is no corollary provision allowing prevailing employers an award of fees under the

Act, therefore a superior court may not award costs under chapter 4.84 RCW. We

disagree. Lowe cites Seattle School Dist. No. 1 v. Dep't of Labor & Indus.. 116 Wn.2d

352, 804 P.2d 621 (1991) in support of his argument. But in that case, the Supreme

Court did not discuss statutory attorney fees or costs awardable by the superior court.

Rather, it explained the rationale for the one-way attorney fee provision in favor of

employees under the Act:
No. 70361-7-1/7




        Employers and employees are not similarly situated with respect to
        the purpose of the Industrial Insurance Act attorney fee provision.. ..
        The individual employee receives an award to compensate the
        employee for personal injuries. Moreover, such injuries often involve
        permanent disabilities which render the employee financially
        dependent on such awards. Therefore, attorney fees may have a
        substantial adverse impact on the employee. By contrast, employers
        are not incapacitated and may simply treat attorney fees expended in
        industrial insurance actions as a cost of doing business, passing the
        cost on to the ultimate consumer. Disabled employees have no such
        option.

Seattle School Dist. No. 1. 116 Wn.2d at 363-64. Given the Supreme Court

in Seattle School Dist. No. 1 did not discuss costs under chapter 4.84 RCW,

we decline to interpret the case as holding the superior court is precluded

from awarding such costs in an Industrial Insurance Act appeal.1

        Affirmed.




WE CONCUR:
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1 Lowe asks this court for attorney fees under RCW 51.52.130, as well as attorney fees and costs on
appeal under RAP 18.1. Given the Department, not Lowe, is the prevailing party in this appeal, we
decline his request for fees and costs.
