                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                        September 25, 2018
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 MIRIAM HALL,                                                        No. 49150-8-II

                Respondent/Cross Appellant,
                                                              UNPUBLISHED OPINION
        v.

 VIRGINIA CARSON,

                Appellant/Cross Respondent.


       BJORGEN, J. — Virginia Carson appeals from a jury verdict in favor of Miriam Hall

arising out of a car accident. She contends that the trial court erred by (1) excluding Hall’s

statement of damages under ER 403 and (2) refusing to instruct the jury on failure to mitigate.

Hall also cross-appeals, arguing that (3) the trial court erred by awarding costs to Carson under

CR 41(d). We disagree and affirm the trial court.

                                              FACTS

       On September 11, 2013, Virginia Carson drove into the rear of a car driven by Miriam

Hall. At the time of the accident, Hall was a licensed practical nurse (LPN) and was in the

process of studying to be a registered nurse (RN). Hall returned to work after the accident, but

began experiencing headaches. Hall suspected that her headaches were the result of whiplash

caused by the car accident, and some of the other nurses at her work gave her an ice pack and

anti-inflammatories.

       On September 23, Hall went to Steven Lewis, a chiropractor, because she was still in pain

from the car accident. Lewis examined Hall and determined that Hall suffered a ligament injury
No. 49150-8-II


as a result of the car accident. Lewis further determined that Hall’s injury was permanent and

that her treatment would revolve around managing Hall’s pain associated with that injury. Over

the course of the next few years, Hall made at least 223 appointments with Lewis to treat her

pain, which became worse over time.

          On June 10, 2014, Hall filed her first complaint against Carson over the September 2013

accident. On June 19, 2015, the superior court granted Hall’s motion to dismiss her first case

pursuant to CR 41(a)(1)(B). On July 7, Carson filed a motion with a cost bill associated with the

first complaint under CR 41(d). On August 14, the superior court awarded Carson $200 in

statutory attorney fees and $4,700 in costs related to Carson’s expert witness, Dr. Reed Wilson,

under CR 35.

          On June 23, 2015, Hall filed a second complaint against Carson regarding the same

accident. In July Carson served Hall with a request for statement of damages pursuant to RCW

4.28.360.1

          Carson filed a motion to compel Hall to respond to her request for a statement of

damages, which the superior court granted with respect to that request. The same day, Hall

provided Carson with a statement of damages that stated, “For ER 408 Settlement Purposes,” and

requested $100,000, Carson’s maximum insurance policy limit, in general and special damages.

Clerk’s Papers (CP) at 216. The statement of damages further stated, “We reserve the right to




1
    RCW 4.28.360 states:
        In any civil action for personal injuries, the complaint shall not contain a statement
        of the damages sought but shall contain a prayer for damages as shall be
        determined. A defendant in such action may at any time request a statement from
        the plaintiff setting forth separately the amounts of any special damages and general
        damages sought. Not later than fifteen days after service of such request to the
        plaintiff, the plaintiff shall have served the defendant with such statement.


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No. 49150-8-II


amend this response should circumstances change, new information come to light and/or if this

matter proceeds to trial.” CP at 216

        Hall filed a motion in limine to exclude her statement of damages, arguing that it was

inadmissible under ER 401, 402, 403, 408, 608, and 802. Hall claimed that the statement of

damages was not relevant because it “was prepared by plaintiff’s counsel and does not constitute

proof of anything.” CP at 196. She also asserted that it would cause confusion and be misused,

claiming that “[t]here [was] no proper way [the statement of damages] could be used” and that

“[h]ow the jury might use [it] is unpredictable.” CP at 197. Hall argued that the statement of

damages was a settlement negotiation, which was demonstrated by the fact that Hall did not file

it like a pleading. Hall also claimed that it was inadmissible as impeachment evidence under

M.R.B. v. Puyallup School District, 169 Wn. App. 837, 859, 282 P.3d 1124 (2012). Hall asserted

further that the statement of damages was hearsay and that she had never seen it. Finally, Hall

argued that admitting the statement of damages violated her right to have damages determined by

the jury.

        The trial court granted Hall’s motion in limine to preclude any reference at trial to the

amount of damages in her statement of damages under ER 403, explaining in part that it was not

a statement made by plaintiff and could cause confusion.

        Carson admitted liability for the accident, and the only issue at trial was the amount of

damages. Hall called Lewis as a witness during trial, and the following exchange occurred:

        [Counsel]:            Now were you concerned about [Hall] continuing to work
                       with the injury?

        [Lewis]:               Yes. . . .
                               And I think her record demonstrates a lot of ongoing
                       exacerbations and not being able to get it under control very well as
                       she tries to maintain, you know, working above the sub-labor



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No. 49150-8-II


                        threshold, supplying for her family and her daughter, and, you know,
                        being a viable working person.

       [Counsel]:              And is it fair to say that most of her exacerbations are
                        associated with the strains of work?

       [Lewis]:                 I’d say most of them are with work. I think that she
                        commonly reported that sitting in class, working on the computer,
                        also was a -- things that would exacerbate her neck, bring on more
                        pain and headaches and things like that, too.
                                So both the studies that she was doing to move forward to
                        get her RN, as well as her work duties both.

Verbatim Report of Proceedings (VRP) (Vol. IV) at 478.

       Carson cross-examined Lewis regarding the number of times Hall had chiropractic

treatment and the billing for those appointments:

       [Counsel]:              I came up, in going through your records, with 223 visits [by
                        Hall]. Does that sound about right to you?

       [Lewis]:                Yeah, probably.

       [Counsel]:              How much do you make on each one of her visits?

       [Lewis]:                You know, I’m not exactly sure. We bill the standard billing
                        codes, and I’m not sure in her particular case if there’s a deduction
                        that we take or not. I haven’t really paid attention to that.

       [Counsel]:             You have no idea how much you charge for a spinal
                        manipulation?

       [Lewis]:         Well we bill -- there’s a code, a billing code. . . . And I think it’s
                        currently $81.16.

       ....

       [Counsel]:               And have you recommended that you continue to treat [Hall]
                        for the rest of her life?

       [Lewis]:                 I have had discussions with Ms. Hall that with her clinical
                        findings and the objective findings that she may more likely than not
                        require ongoing supportive care.

VRP (Vol. IV) at 489.

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No. 49150-8-II


       Carson also cross-examined Lewis about information contained on his professional

website:

       [Counsel]:            I want to read to you again from your website, under the
                     topic Time Matters. It says, “When a spinal ligament has been
                     injured, there’s a short window of opportunity to begin treatment
                     that results in the best possible outcome and the recovery from your
                     injuries. The common approach of waiting to see if the pain goes
                     away on its own often has disastrous results.”
                             You’re aware that Ms. Hall waited 12 days to come in and
                     see you in this case, correct?

       [Lewis]:              Correct.

       [Counsel]:           Is that what happened here, is that she waited too long to get
                     treatment for this ligament injury?

       [Lewis]:              No. . . . Ms. Hall was self treating, using ice and trying to
                     self manage, which is appropriate to do that.
                             One of the things that we want to do in the beginning is use
                     a lot of ice, control the inflammatory response, and I think she was
                     doing the best she could on her own, and I don’t think that caused
                     any further damage.
                     ....
                             And in Ms. Hall’s particular case I didn’t see anything or did
                     she relate anything to me that would cause further damage or delay.

VRP (Vol. IV) at 499-501.

       Carson further cross-examined Lewis about the possibility of immobilization as a

treatment option:

       [Counsel]:           Have you tried immobilization of her cervical spine to help
                     heal her ligament injuries?

       [Lewis]:              No. Immobilization is really not an indicated therapy for
                     those. What we want to do is improve the communication between
                     the three subsystems. We want to activate the ligaments in a careful,
                     controlled method that doesn’t create more injury; we want to
                     stimulate the nerve endings in there to communicate with the control
                     center, the nervous system, to get the muscles to work better. And
                     we want to try to do that as much as we can to try to keep that loop
                     going.



                                               5
No. 49150-8-II


                                And immobilization is going to prevent that whole process,
                        it’s going to shut it all down. If the neck can’t move, there can be
                        no input. There can’t be anything happening with it.

VRP (Vol. IV) at 509.

       Carson called Wilson to testify for the defense:

       [Counsel]:              What significance do you place on Dr. Lewis’s findings and
                        these records that came back from the radiologist in Wisconsin?
                        How did you interpret that?

       ....

       [Wilson]:                So in this case, the Spinal Kinetics in Wisconsin or
                        wherever, reported finding abnormal subluxation between the
                        second and the third cervical vertebrae in the neck. But I didn’t see
                        evidence for that. . . .
                                So I found no evidence of subluxation of the joints which is
                        the basis for much of this entire case. . . .

       [Counsel]:             Okay. In addition to the films, you conducted a physical
                        examination of Ms. Hall?

       [Wilson]:                I did.

       [Counsel]:               Did you find any objective evidence of injury when you did
                        that?

       [Wilson]:                No.

VRP (Vol V) at 543-46.

       Carson also asked Wilson whether immobilization would have been an effective treatment:

       [Counsel]:               . . . . Have you seen immobilization of the cervical spine
                        used to treat a serious ligament injury?

       [Wilson]:                Sure. Tissues can heal, muscle strains can heal, tendons,
                        ligament injuries can heal. . . . If they had a ligamentous injury in
                        their neck you might give them a hard collar to wear for a while until
                        that ligament heals up.
                                Or if the ligament injury is very severe and persisted after
                        you took them out of a hard collar, you might want to ask a
                        neurosurgeon to tighten the ligaments or fuse the bone so there
                        wouldn’t -- so it wouldn’t be a catastrophic result from movement.

                                                  6
No. 49150-8-II



       [Counsel]:              And if you had a patient who you believed had a ligament
                       injury, would you recommend that they undergo several spinal
                       manipulations by a chiropractor?

       [Wilson]:               No. Unless – common sense tells you if there’s ligamentous
                       injury, avoidance of movement is proper. You don’t want to put the
                       patient at risk for damage from stretching the ligament. It’s already
                       over stretched. You want to give it a rest. So I would think
                       manipulation would be the opposite treatment of what you’d really
                       want to do if you suspected somebody had a ligamentous injury.

VRP (Vol. V) at 550-51.

       Hall cross-examined Wilson regarding his medical analysis:

       [Counsel]:             And to fix the problem in [Hall’s] neck?

       [Wilson]:               Well I’m not sure there is an ongoing problem. I thought
                       [Hall] had a mild cervical strain, which is resolved. And that if she
                       had a ligamentous injury, then the treatment would not be the fix.
                       There may be no fix because ligamentous injuries can fail to heal
                       and leave ongoing problems. But if it’s -- there are two types of
                       treatment. One if there’s sufficient laxity to endanger the spinal
                       cord, surgery would be the answer. If not, then just avoidance of
                       those extreme motions that would aggravate the problem.

VRP (Vol. V) at 561.

       Hall testified at trial about her decision to seek treatment. She stated that she asked

doctors and other medical professionals with whom she worked about possible treatment options

and that she did not want to pursue spinal surgery or injections to manage pain. Hall did not

want to use prescription medication to manage pain because those drugs would interfere with her

ability to work as a nurse. Hall explained that Lewis’s treatments were helping her with pain

management and that she continued to see Lewis because he helped her effectively manage her

pain. Hall also testified that none of the friends she spoke with regarding her injury




                                                 7
No. 49150-8-II


recommended immobilization as a treatment and that immobilization was a practice that the

medical profession did not recommended anymore.

       Prior to closing argument, the trial court rejected Carson’s request to instruct the jury on

failure to mitigate, explaining:

                And basically when I read the cases I do think there was insufficient
       evidence to present to the jury the question on failure to mitigate. You know what,
       [Lewis’s] web page really isn’t evidence in this case, although he was asked about
       it and tied it somewhat to this case. But overall Dr. Lewis just talked about [it] in
       general, not sufficient on this case.
                So I can’t find there was an unreasonable -- and that [is] what the case law
       talks about, unreasonable failure to mitigate. She has worked around the medical
       field herself, she’s an LPN studying most of the way to an RN, spoke with her mom,
       who’s an ICU [(intensive care unit)] and ED [(emergency department)] RN. She
       was around medical staff, they did some treatment to her. So I couldn’t find there
       was sufficient evidence on a failure to mitigate.

VRP (Vol. VI) at 646-47.

       In closing, Hall asked the jury for a verdict of $1,445,000. During Carson’s closing,

counsel in part argued:

       I’ve never used the word fraud, I’ve never used the word that Ms. Hall is a cheat,
       I’ve never said she’s a liar. Okay? I told you in opening statement I don’t know if
       she’s injured. You don’t know if she’s injured. Mr. Robison thinks he knows she’s
       injured. But the only person that knows whether or not she’s injured is Ms. Hall.
       And she’s suing my client for almost a million and a half dollars. So it’s my job to
       go out and find the best medical expert I can because she’s been a captive patient
       of a chiropractor for 220-some visits.
       ....
               I told you in opening statement that this was going to be a medical dispute.
       On one hand we have Dr. Lewis, who’s already profited substantially from treating
       [Hall] 223 times. He’s got a captive patient. He won’t refer her out for an MRI
       [(magnetic resonance imaging)] scan, he won’t refer her out to another doctor.
       Because in his words he’s afraid that an MD [(medical doctor)] might not
       understand this ligament injury that he’s diagnosed [Hall] with.

VRP (Vol. VI) at 682-83.




                                                 8
No. 49150-8-II


       The jury found that Carson’s negligence had injured Hall and that Hall’s damages were

$348,000. The trial court entered findings of fact and conclusions of law and the judgment

against Carson, but also awarded Carson costs related to Hall’s first lawsuit. Carson appealed

the judgment, and Hall cross-appealed the trial court’s award of costs to Carson.

                                            ANALYSIS

                                    I. STATEMENT OF DAMAGES

       Carson argues that the trial court erred by excluding Hall’s statement of damages.

Specifically, Carson argues that the trial court erred by finding that the statement of damages is a

statement made by plaintiff and that the trial court abused its discretion by finding that it could

confuse the jury.

       We review the trial court’s interpretation of statutes and evidentiary rules de novo. Diaz

v. State, 175 Wn.2d 457, 462, 285 P.3d 873 (2012). We review a trial court’s decision to admit

or exclude evidence, including whether to grant a motion in limine2 for an abuse of discretion.

Diaz, 175 Wn.2d at 462; Hizey v. Carpenter, 119 Wn.2d 251, 268, 830 P.2d 646 (1992).

       A trial court abuses its discretion when its decision is manifestly unreasonable or
       based upon untenable grounds or reasons. A trial court’s decision is manifestly
       unreasonable if it adopts a view that no reasonable person would take. A decision
       is based on untenable grounds or for untenable reasons if the trial court applies the
       wrong legal standard or relies on unsupported facts.

Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668-69, 230 P.3d 583 (2010) (internal quotation

marks and citations omitted). We will not find an abuse of discretion “simply because [we]




2
  Where evidentiary rulings are made in response to a motion in limine, the losing party
generally has a standing objection, unless the trial court indicates that further objections are
required. Garcia v. Providence Med. Ctr., 60 Wn. App. 635, 641, 806 P.2d 766 (1991); see
Millican v. N.A. Degerstrom, Inc., 177 Wn. App. 881, 889, 313 P.3d 1215 (2013).


                                                  9
No. 49150-8-II


would have decided the case differently.” Gilmore v. Jefferson County Pub. Transp. Benefit

Area, 190 Wn.2d 483, 494, 415 P.3d 212 (2018).

A.        Statement by the Plaintiff

          The trial court found that statements of damages “are commonly prepared by counsel

without any assistance from their client; as is the case here. It’s procedural in nature. This is not

really an out of court statement of a party.” CP at 403. In other words, the trial court found that

because counsel prepared the plaintiff’s statement and provided it to the defendant to comply

with the statutory requirement that the plaintiff provide the defendant with a statement of

damages, the statement was not made by the plaintiff, and therefore was inadmissible.

          Our fundamental objective in statutory interpretation is to give effect to the legislature’s

intent. Wells Fargo Bank, N.A. v. Dep’t of Revenue, 166 Wn. App. 342, 350, 271 P.3d 268

(2012). If a statute’s meaning is plain on its face, then we give effect to that plain meaning as an

expression of legislative intent. Id. We discern plain meaning not only from the provision in

question but also from closely related statutes and the underlying legislative purpose. Id.

Although we consider statutes in the context of related statutes, we do not add words to statutes

that the legislature has not included. Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516,

526, 243 P.3d 1283 (2010). We do not interpret a statute such that it renders any portion

meaningless or superfluous. Jongeward v. BNSF R. Co., 174 Wn.2d 586, 601, 278 P.3d 157

(2012).

          RCW 4.28.360 states:

          In any civil action for personal injuries, the complaint shall not contain a statement
          of the damages sought but shall contain a prayer for damages as shall be
          determined. A defendant in such action may at any time request a statement from
          the plaintiff setting forth separately the amounts of any special damages and general
          damages sought. Not later than fifteen days after service of such request to the
          plaintiff, the plaintiff shall have served the defendant with such statement.

                                                   10
No. 49150-8-II


       The plain language of RCW 4.28.360 requires the plaintiff to provide the defendant with

a statement of damages. The statute authorizes the defendant to request the statement “from the

plaintiff” and requires in response that “the plaintiff” set forth separately the amounts of any

special damages and general damages sought. RCW 4.28.360. Therefore, “it is fair to interpret

the amount listed in the statements as doing exactly that.” M.R.B., 169 Wn. App. at 859.

       Generally, where a party is represented by counsel in a lawsuit, the party acts through her

attorney, and her attorney’s actions are binding on the client. Haller v. Wallis, 89 Wn.2d 539,

547, 573 P.2d 1302 (1978); Russell v. Maas, 166 Wn. App. 885, 889-90, 272 P.3d 273 (2012);

Clay v. Portik, 84 Wn. App. 553, 561, 929 P.2d 1132 (1997). Hall’s attorney was acting on her

behalf in responding to the defendant’s request for statement of damages. For these reasons, the

trial court erred in determining that the statement of damages was not a statement made by the

plaintiff because her attorney prepared it.

B.     Juror Confusion

       Carson contends that the trial court abused its discretion by determining that the

statement of damages was inadmissible because it would potentially confuse the jury. We

disagree. Regardless of the trial court’s error in determining that the statement of damages was

not a statement by the plaintiff, the trial court did not abuse its discretion in excluding the

statement of damages to avoid possible juror confusion.

       Relevant evidence may be excluded if its probative value is substantially outweighed by

the risk of confusing the issues. ER 403. While we agree that the statement of damages may be

relevant to show bias, Carson has failed to demonstrate that the trial court abused its discretion.

See M.R.B., 169 Wn. App. at 860. The relatively low figure in the statement of damages, not

intended as a final amount of claimed damages, could unduly lead the jury to scepticism of the



                                                  11
No. 49150-8-II


final amount. Although one could also reasonably reach the opposite conclusion, it was not

unreasonable for the trial court to determine that the possibility of confusing the jury with

distracting issues outweighed any probative value that the statement of damages carried.

Therefore, the trial court did not abuse its discretion in excluding the statement of damages.

                            II. INSTRUCTION ON FAILURE TO MITIGATE

       Carson argues that the trial court erred by refusing to instruct the jury on failure to

mitigate. Specifically, Carson maintains that she presented substantial evidence of Hall’s failure

to mitigate, entitling her to a jury instruction on failure to mitigate. We disagree.

A.     Preservation of Carson’s Challenge

       Hall asserts that Carson has not preserved this issue for review.

       One challenging the trial court’s failure to give a jury instruction must have proposed the

instruction in the trial court. Gorman v. Pierce County, 176 Wn. App. 63, 86, 307 P.3d 795

(2013). CR 51(d)(2) states that where the refusal to give a requested instruction is challenged, “a

copy of the requested instruction shall be placed in the record on review.” In general, “a party

requesting an instruction that appears in the Washington pattern instructions must propose the

instruction in writing.” Gorman, 176 Wn. App. at 86. However, “a party may request a

Washington pattern instruction simply by referring to the instruction's published number if the

superior court has adopted a local rule permitting that procedure.” Id. at 86-87. Hall states that

Clark County Superior Court has no such rule.

       The trial record shows that Carson submitted a proposed written instruction modeled on 6

Washington Practice, Washington Pattern Jury Instructions: Civil 33.01 (6th ed. 2017) (WPI),

the failure to mitigate instruction, but the proposed instruction has not been included in the

record on appeal. CR 1 states that the civil rules “shall be construed and administered to secure



                                                 12
No. 49150-8-II


the just, speedy, and inexpensive determination of every action.” Carson submitted her proposed

instruction in writing and it was modeled on a WPI instruction. Even without the instruction

itself in the record, this gives us sufficient information to make a principled decision of Carson’s

challenge. Avoiding this issue because a copy of the instruction was not included in the record

on review serves no purpose and ignores the injunction of CR 1. Therefore, we reach this issue.

B.     Legal Principles

       Generally, whether to give a particular instruction is within the trial court’s discretion.

Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 767, 389 P.3d 517 (2017). We review the trial

court’s refusal to give a requested jury instruction for an abuse of discretion if the decision is

based on an issue of fact, and de novo if the decision is based on an issue of law. Id.

       Trial courts are required to instruct the jury on a party’s theory of the case where

substantial evidence supports the theory. Id. “To determine whether to give an instruction, the

trial judge ‘must merely decide whether the record contains the kind of facts to which the

doctrine applies.’” Id. (quoting Kappelman v. Lutz, 167 Wn.2d 1, 6, 217 P.3d 286 (2009)). In

determining whether substantial evidence supports the requested instruction, we consider the

evidence in the light most favorable to the requesting party. Mina v. Boise Cascade Corp., 37

Wn. App. 445, 448, 681 P.2d 880 (1984).

       More specifically, a defendant who seeks a failure to mitigate a jury instruction “must

show that there were alternative treatment options available to the plaintiff and that the plaintiff

acted unreasonably in deciding on treatment.” Fox v. Evans, 127 Wn. App. 300, 305, 111 P.3d

267 (2005). Expert testimony must establish that the alternative treatment would more likely

than not improve or cure the plaintiff’s condition. Id. at 308. A plaintiff is not unreasonable for

refusing treatment that offers only a possibility of relief. Id. at 305 n.2.



                                                  13
No. 49150-8-II


C.     Substantial Evidence

       1. Failure to Seek Treatment

       Carson suggests that Hall’s failure to seek treatment for 12 days after the accident shows

that she unreasonably failed to mitigate her injury. However, Hall testified that she began self-

treating the injury on the day the accident occurred, and Lewis testified that the 12-day delay did

not contribute to Hall’s injury. Carson has not demonstrated that Hall failed to timely seek

medical treatment or unreasonably delayed seeking treatment. Accordingly, Carson has not

demonstrated that she was entitled to a failure to mitigate instruction on the basis of failure to

seek timely medical treatment.

       2. Chiropractic Visits

       Carson also contends that Hall acted unreasonably by relying exclusively on chiropractic

treatment, even after her injury became worse. Hall testified that Lewis’s treatments were

helping her with pain management and that she continued to see Lewis because he helped her

effectively manage her pain. Further, Hall testified that she spoke with several colleagues in the

medical field regarding how to best treat her injury. She also testified that she did not want to

use prescription drugs because they would interfere with her ability to be a nurse, that she did not

want to undergo surgery, and that injections for pain management had a low success rate.

       Expert testimony did not establish that treatment by a medical doctor would more likely

than not improve or cure Hall’s condition. Wilson testified that “[t]here may be no fix because

ligamentous injuries can fail to heal and leave ongoing problems.” VRP (Vol. V) at 561. Even

taking the evidence in the light most favorable to Carson, Hall was presented with two

conflicting treatment options, neither presenting a certain cure. Carson has not demonstrated that

Hall’s choice to pursue chiropractic treatments was unreasonable. Accordingly, Carson has not



                                                 14
No. 49150-8-II


demonstrated that she was entitled to a failure to mitigate instruction on the basis of Hall’s

pursuing chiropractic treatments.

        3. Immobilization

        Carson argues that Hall acted unreasonably by not seeking treatment by a medical doctor

or attempting immobilization as an alternative treatment. Hall testified that immobilization was

no longer a recommended treatment in the medical field. Hall also testified that Lewis’s

treatments were helping her with pain management and that she continued to see Lewis because

he helped her effectively manage her pain. Additionally, Wilson testified that “[t]here may be no

fix because ligamentous injuries can fail to heal and leave ongoing problems.” VRP (Vol. V) at

561. Therefore, the record shows that Hall’s decision not to pursue immobilization was

informed and reasonable. She simply chose to pursue one of two reasonable courses of

treatment. Under the authority above, that is not a sufficient basis for an instruction on failure to

mitigate.

        Carson fails to demonstrate that the trial court erred by not instructing the jury on Hall’s

failure to mitigate.

                       III. CROSS APPEAL—COSTS REGARDING DISMISSED CASE

        Hall argues that the trial court erred by awarding costs to Carson pursuant to CR 41 after

she voluntarily dismissed her 2014 case. We hold the trial court did not err.

        We review the trial court’s interpretation of cost provisions and the application of court

rules to particular facts de novo. Johnson v. Horizon Fisheries, LLC, 148 Wn. App. 628, 633,

201 P.3d 346 (2009). We construe court rules in the same manner as statutes. State v. Walker,

101 Wn. App. 1, 7, 999 P.2d 1296 (2000).




                                                 15
No. 49150-8-II


       Hall argues that Carson’s request for fees was untimely because it was made after the

deadline in CR 54(d)(1). CR 54(d)(1) states in part, “If the party to whom costs are awarded

does not file a cost bill or an affidavit detailing disbursements within 10 days after the entry of

judgment, the clerk shall tax costs and disbursements pursuant to CR 78(e).” However, there

was no judgment in the 2014 case because Hall voluntarily dismissed her case. Hall’s argument

fails because in the absence of a judgment, the deadline in CR 54(d)(1) does not take effect.

       Hall also maintains that the trial court erred by awarding medical examination and

witness expenses to Carson because those expenses are not authorized by RCW 4.84.010. Based

on Johnson, Hall’s argument fails because the cost provision in CR 41(d) is not limited to the

definition of costs in RCW 4.84.010.

       In Washington, a party may recover litigation costs only when authorized by statute, rule,

or case law. Johnson, 148 Wn. App. at 633. CR 41(d) states:

       If a plaintiff who has once dismissed an action in any court commences an action
       based upon or including the same claim against the same defendant, the court may
       make such order for the payment of taxable costs of the action previously dismissed
       as it may deem proper and may stay the proceedings in the action until the plaintiff
       has complied with the order.

       Johnson held that the reference to “taxable costs” in CR 41(d) was not limited to the costs

enumerated under RCW 4.84.010. Id. at 634. The court reasoned that unlike CR 54(d), which

expressly incorporates chapter 4.84 RCW, CR 41(d) did not include any statutory restrictions on

the meaning of costs. Id. The court also explained that RCW 4.84.010 would not apply to CR

41(d) because the rule authorized expanded costs recovery “‘as [the court] may deem proper.’”

Id. (quoting CR 41(d)). The court further reasoned that the holding in Polygon Northwest Co. v.

American National Fire Insurance Co. did not mean that “taxable costs” always refers to RCW

4.84.010, only that the term excluded nonstatutory attorney fees. Id. at 635; Polygon Nw. Co. v.



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No. 49150-8-II


Am. Nat’l Fire Ins. Co., 143 Wn. App. 753, 189 P.3d 777 (2008). The court affirmed the trial

court’s award of costs, which included costs for a medical evaluation under CR 35. Johnson,

148 Wn. App. at 632, 636.

       Because the cost provision in CR 41(d) is not limited to the definition of costs in RCW

4.84.010, Hall’s argument fails.

       Hall argues also that Carson may not recover fees for a medical examination by Wilson,

because the examination was not repeated in the second proceeding and Carson received value

for it by presenting its results to the jury. Although we see the logic in Hall’s position, CR 41(d)

authorizes the recovery of taxable costs without this limitation. Therefore, Hall’s argument fails.

       Next, Hall argues that Carson may not recover fees under CR 41(d) because she

dismissed her 2014 case after trial had begun. Both parties agree that trial had begun when Hall

dismissed her 2014 case.

       In Johnson, Division One of our court stated that CR 41(d) applies only where the

plaintiff dismissed and refiled the action before trial. 148 Wn. App. at 636. The court did not

offer any additional explanation for this limitation, which is not clearly reflected in the language

of CR 41(d). Rather, the limitation appears to be a contrast to the court’s earlier observation that

“RCW 4.84.010(5) and (7) allow recovery for expenses related to evidence used at trial by a

prevailing party.” Id.

       Under CR 41(a)(1)(B), the trial court is required to grant a plaintiff’s motion for a

voluntary dismissal “at any time before plaintiff rests at the conclusion of plaintiff’s opening

case.” We discern plain meaning not only from the provision in question but also from closely

related statutes and the underlying legislative purpose. Wells Fargo, 166 Wn. App. at 350.

Therefore, we diverge from Division One’s holding in Johnson, and determine that CR 41(d)



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applies in circumstances where the plaintiff has acquired a voluntary dismissal under CR

41(a)(1)(B). The trial court did not err in awarding costs to Carson under CR 41(d).

                                        CONCLUSION

       We affirm.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is

so ordered.



                                                    Bjorgen, J.
 We concur:



Sutton, J.




Haan, J.P.T.




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