       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LARRY CURRIER, individually;
LARRY CURRIER, DBA                            NO. 70128-2-1
AMERICAN CONTAINER EXPRESS,
as sole proprietor and agent; and             DIVISION ONE
AMERICAN CONTAINER EXPRESS,
INC., a Washington corporation,

                       Respondent,            PUBLISHED OPINION

       v.
                                                                           33»


NORTHLAND SERVICES, INC.,                     FILED: August 4, 2014         CD

                                                                             1
a Washington corporation,

                       Appellant,

JUDI McQUADE, in her individual                                              c :•

capacity; JAMES "JIM" SLEETH, in
his individual capacity; PATRICK
FRANSSEN, in his individual capacity;
and LARRY GRAHAM, in his
individual capacity,

                       Defendants.



       Leach, J. — Northland Services Inc. (NSI) appeals a trial court decision

holding NSI liable for the retaliatory discharge of independent contractor Larry

Currier, dba American Container Express, under the Washington Law Against

Discrimination (WLAD), chapter 49.60 RCW.     NSI terminated Currier's contract

two days after Currier reported to an NSI employee racially discriminatory

comments directed at a Latino driver by another contractor driver. Because the

WLAD applies to this case and substantial evidence supports the trial court's
NO. 70128-2-1/2




findings and conclusions that retaliation was a substantial factor in NSI's

termination of Currier, we affirm the trial court's judgment.             And because

substantial evidence supports the trial court's damages award as well as its

finding that NSI did not meet its burden of proof for an after-acquired evidence

defense, we also affirm the court's award of damages, costs, and attorney fees.

Finally, we award Currier, as the prevailing party, his appellate fees and costs

under RAP 18.1 and RCW 49.60.030(2).

                                       FACTS


       Larry Currier worked as an independent contractor truck driver for NSI

from 2005 until August 14, 2008. Their subcontractor agreement required Currier

to comply with all local, state, and federal laws. Either party could terminate the

agreement on 30 days' notice or immediately upon default.

       Yard supervisor Tom Vires advised Currier to install a citizens band (CB)

radio in his truck to facilitate communication with NSI dispatchers and forklift

operators. Currier told Vires he hated and did not want to hear the "obscene"

racist and sexist speech routinely heard on CB, including over the company's

radio frequency.1 Later, at Vires's request, Currier installed a radio.

      Around 2007, Currier heard Jim Sleeth, a contractor driver who later

became an NSI dispatcher, say in the terminal, "Let's go put on the white sheets

and scare Fred!" Fred Morris was an African American driver for NSI.2 In 2008,


       1 Vires testified that Currier referred to "obscene" or "explicit" speech but
that he did not remember Currier referencing sexist or racist speech.
       2 Sleeth denied making this statement.
NO. 70128-2-1/3




Currier witnessed driver Terry Mock verbally abuse two Latino drivers named

Victor and Julio: "Hey, f**ing Mexicans, what do you got for sale? I know you got

something for sale because all Mexicans are thieves."       Currier did not report

either of these incidents.


       In spring or summer 2008, Currier had a confrontation in the receiving

office with Billy Howell, another driver. Howell whispered to Currier, "Hey, f**ing

N** lover, you're just a piece of s**t. You're ripping these people off here by not

working hard enough." Currier became angry, and a loud argument followed.

       On August 12, 2008, Currier heard Howell yell across the yard to a Latino

driver, Marco Martinez, "Hey, f**ing Mexican, you know why you have to go to

Portland and I don't? Because f**ing Mexicans are good at crossing borders."

Currier was upset and reported Howell's comment to Judith McQuade, NSI

quality assurance manager. He did not report it to dispatch because he believed

dispatch was involved. McQuade immediately reported the incident to dispatcher

Sleeth and reported it to dispatcher Patrick Franssen the next day.

       On August 14, 2008, Sleeth and Franssen met with Larry Graham, NSI

terminal operations manager, for guidance on how to terminate Currier's

contract.   Graham told      Sleeth and   Franssen that because Currier was a


contractor and not an employee, they "could just terminate the contract if he was

not performing," and recommended they do so. Sleeth and Franssen did not tell




                                          -3-
NO. 70128-2-1/4




Graham about the August 12 incident or Currier's complaint, which Graham only

learned of "much later."3

       On August 14, 2008, Sleeth and Franssen called Currier into a meeting

room and told him they would no longer be using his services—that "the reasons

were for his customer service issues that we had with him. Us—customer being

Northland Services, Patrick and I."4 They also told him that they had talked with

McQuade and the drivers and that "they had decided that the joke was funny."

       After the termination of his contract, Currier left his truck in NSI's freight

yard. When Sleeth walked by Currier's truck, he noticed several bald tires and

expired license tags. He took photos of the truck.

       In 2009, Currier filed a complaint with the Seattle Office of Civil Rights,

which conducted an investigation. In 2011, Currier commenced suit against NSI

for retaliation under the WLAD, RCW 49.60.210 and .030.

       NSI moved for summary judgment, arguing that "the Washington Law

Against Discrimination (WLAD) simply does not apply to alleged discrimination

solely between two independent contractors, therefore there can be no retaliation

as a matter of law and plaintiffs' case should be dismissed." The court denied

NSI's motion, and a bench trial followed.         On February 21, 2013, the court

entered findings of fact and conclusions of law that held NSI liable for retaliation

       3 Graham testified on cross-examination that if Franssen and Sleeth had
told him about the incident and said, "[A]nd because of that, we've had enough of
Currier and we want to fire him," Graham would not have advised termination
because "the issue is not Currier, it's Billy Howell."
       4 This also terminated the contract and any relationship between NSI and
Currier, dba American Container Express Inc..
NO. 70128-2-1/5



within the meaning of RCW 49.60.210. The court awarded Currier economic loss
damages of $301,604.00, noneconomic damages of $25,000.00, attorney fees of
$265,500.00, and costs of $8,864.69.

      NSI appeals.5

                            STANDARD OF REVIEW

      This court reviews a trial court's findings and conclusions to determine if

substantial evidence supports them and if those findings support the court's
conclusions of law.6 Substantial evidence is evidence sufficient to persuade a

fair-minded, rational person of the truth of the matter asserted.7 The trial court is
in a better position to make credibility determinations, and if substantial evidence
exists, this court will not substitute its judgment for that of the trial court on

appeal.8




       5 Though NSI's notice of appeal to this court lists five orders, NSI only
assigns error to and argues four: the court's denial of NSI's motion for summary
judgment, judgment, findings and conclusions on liability, and findings and
conclusions on damages. NSI appears to have abandoned its appeal of the
court's order denying NSI's motions to dismiss Currier's first amended and
original complaints, and we decline to review it. An issue not briefed is deemed
 waived. Kadoranian v. Bellinaham Police Dep't, 119 Wn.2d 178, 191, 829 P.2d
 1061 (1992). And because we conclude that Currier established a prima facie
 case of retaliation, we do not address NSI's appeal of the trial court's denial of
 summary judgment.
       6 State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
       7 State v. Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).
       s Fisher Props.. Inc. v. Arden-Mavfair. Inc., 115 Wn.2d 364, 369-70, 798
 P.2d 799 (1990).
NO. 70128-2-1/6




                                       ANALYSIS


RCW 49.60.030 and .210


       The Washington Supreme Court has repeatedly said that the WLAD

expresses a "'public policy of the highest priority.'"9 The legislature enacted the

WLAD to eliminate and prevent discrimination in Washington.10 The legislature

has directed that the provisions of the WLAD "shall be construed liberally for the

accomplishment of the purposes thereof."11

       RCW 49.60.030 is entitled "Freedom from discrimination—Declaration of


civil rights" and states in relevant part,

       (1) The right to be free from discrimination because of race, creed,
       color, national origin, sex, honorably discharged veteran or military
       status, sexual orientation, or the presence of any sensory, mental,
       or physical disability or the use of a trained dog guide or service
       animal by a person with a disability is recognized as and declared
       to be a civil right. This right shall include, but not be limited to:
              (a) The right to obtain and hold employment without
       discrimination.

       The WLAD also extends broad protections to "any person" engaging in

statutorily protected activity from retaliation by an employer or "other person."

RCW 49.60.210(1) provides,

       (1) It is an unfair practice for any employer, employment agency,
       labor union, or other person to discharge, expel, or otherwise
       discriminate against any person because he or she has opposed
       any practices forbidden by this chapter, or because he or she has



       9 Int'l Union of Operating Enq'rs, AFL-CIO. Local 286 v. Port of Seattle.
176 Wn.2d 712, 722, 295 P.3d 736 (2013) (internal quotation marks omitted)
(quoting Antonius v. King County, 153 Wn.2d 256, 267-68, 103 P.3d 729 (2004)).
       10 RCW 49.60.010.
       11 RCW 49.60.020.


                                             -6-
NO. 70128-2-1/7


      filed a charge, testified, or assisted in any proceeding under this
      chapter.

      To establish a prima facie case of retaliation under RCW 49.60.210(1), a

plaintiff must show that (1) he or she engaged in statutorily protected activity, (2)

he or she suffered an adverse employment action, and (3) there was a causal

link between his or her activity and the other person's adverse action.12 The first

element describes opposition to "any practices forbidden by" RCW 49.60.13

When a person reasonably believes he or she is opposing discriminatory

practices, RCW 49.60.210(1) protects that person whether or not the practice is

actually discriminatory.14 A plaintiff proves causation by showing that retaliation

was a substantial factor motivating the adverse employment action.15           If the

plaintiff establishes a prima facie case, then the defendant may rebut the claim

by presenting evidence of a legitimate nondiscriminatory reason for the adverse

action.16 This shifts the burden back to the plaintiff to prove that the employer's

reason is pretextual.17 The trier of fact must then "choose between inferences




       12 Estevez v. Faculty Club of the Univ. of Wash., 129 Wn. App. 774, 797,
120 P.3d 579 (2005).
       13 Coville v. Cobarc Servs., Inc., 73 Wn. App. 433, 440, 869 P.2d 1103
(1994).
       14 Ellis v. City of Seattle, 142 Wn.2d 450, 460-61, 13 P.3d 1065 (2000);
Graves v. Dep't of Game, 76 Wn. App. 705, 712, 887 P.2d 424 (1994) (citing
Gifford v. Atchison, Topeka & Santa Fe Ry., 685 F.2d 1149, 1157 (9th Cir.
1982)).
       15 Allison v. Hous.Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991).
       16 Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 70, 821 P.2d
18 (1991); Estevez, 129 Wn. App. at 797-98; Kahn v. Salerno, 90 Wn. App. 110,
129 n.5, 951 P.2d 321 (1998).
      17 Wilmot, 118Wn.2d at 70; Estevez, 129 Wn. App. at 798; Kahn, 90 Wn.
App. at 129 n.5.


                                         -7-
NO. 70128-2-1/8




when the record contains reasonable but competing inferences of both

discriminatory and nondiscriminatory actions."18

Currier's Prima Facie Case for Retaliation

      Statutorily Protected Activity

       NSI contends that Currier may not bring this action for two reasons: (1) as

an independent contractor, he is not an "employee" within the meaning of the

statute and (2) because he did not oppose a specific employment practice of his

employer, he did not engage in statutorily protected activity. Therefore, Currier

cannot assert a claim for retaliation under RCW 49.60.210(1), and the trial court

erred in denying NSI's motion for summary judgment.

       To show that chapter 49.60 RCW does not protect an independent

contractor, NSI notes that WAC 162-16-230, a rule promulgated by the

Washington Human Rights Commission, excludes independent contractors from

the protections of RCW 49.60.180.19 This rule, however, provides only that

independent contractors may not enforce the civil right guaranteed in RCW

49.60.030(1) by actions of the Washington Human Rights Commission. It does

not prevent independent contractors from enforcing the broad protections of



       18 Burchfiel v. Boeing Corp., 149 Wn. App. 468, 483, 205 P.3d 145 (2009)
(citing Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 186, 23 P.3d 440 (2001),
overruled on other grounds by McClartv v. Totem Elec, 157 Wn.2d 214, 137
P.3d 844 (2006)).
       19 "Purpose of section. RCW 49.60.180 defines unfair practices in
employment. A person who works or seeks work as an independent contractor,
rather than as an employee, is not entitled to the protections of RCW 49.60.180."
WAC 162-16-230(1).


                                        -8-
NO. 70128-2-1/9




RCW 49.60.030(1) by private lawsuit.20 And in Marouis v. City of Spokane,21 the
Washington Supreme Court held that "under the broad protections of RCW

49.60.030, an independent contractor may bring an action for discrimination in

the making or performance of contract for personal services where the alleged

discrimination is based on sex, race, creed, color, national origin or disability."

The broad language of RCW 49.60.210(1) likewise supports the conclusion that

the WLAD does not limit claims to those brought by employees against

employers.22 We hold that RCW 49.60.030 and .210(1) protect Currier as an

independent contractor.

       NSI next argues that because the racially derogatory statement came from

Howell, an independent contractor, it cannot be imputed to NSI.          Therefore

Currier did not oppose a specific employment practice of NSI, and WLAD does

not protect his objection to the statement.

       NSI relies on certain federal cases including Silver v. KCA. Inc.,23 in which

the Ninth Circuit held that a plaintiff could not maintain a retaliation claim under

Title VII of the Civil Rights Act of 196424 because she was opposing a racially

       20 Rights of independent contractors. While an independent
       contractor does not have the protection of RCW 49.60.180, the
       contractor is protected by RCW 49.60.030(1). The general civil
       right defined in RCW 49.60.030(1) is enforceable by private lawsuit
       in court under RCW 49.60.030(2) but not by actions of the
       Washington state human rights commission.
WAC 162-16-230(2).
      21 130 Wn.2d 97, 100-01,112-13, 922 P.2d 43 (1996); see also Galbraith
v. TAPCO Credit Union, 88 Wn. App. 939, 949-50, 946 P.2d 1242 (1997).
       22 Galbraith, 88 Wn. App. at 951.
       23 586 F.2d 138, 140-41 (9th Cir.1978).
       24 42 U.S.C. § 200e-3(a).
NO. 70128-2-1/10



discriminatory act not of her employer but of a co-worker. That court held, "The

opposition must be directed at an unlawful employment practice of an employer,

not an act of discrimination by a private individual."25

       Since the Ninth Circuit decided Silver in 1978, however, it has clarified that

a plaintiff need not prove that the employment practice at issue was in fact

unlawful but must show only a "reasonable belief that the employment practice

he or she protested was prohibited under Title VII.26 Other Ninth Circuit cases

have held that an employee's complaints about the treatment of others "is

considered a protected activity, even if the employee is not a member of the

class that he claims suffered from discrimination, and even if the discrimination

he complained about was not legally cognizable."27 The reasonableness of a

plaintiff's belief is "an objective standard—one that makes due allowance,

moreover, for the limited knowledge possessed by most Title VII plaintiffs about

the factual and legal bases of their claims."28 Washington cases have likewise

       25 Silver, 586 F.2d at 141; see also Little v. United Techs.. Carrier
Transicold Div., 103 F.3d 956, 959-60 (11th Cir. 1997) ("Based on the facts of
this case, we conclude that Wilmot's racially offensive comment alone is not
attributable to Carrier and, accordingly, Little's opposition to the remark did not
constitute opposition to an unlawful employment practice.").
       26 Trent v. Valley Elec. Ass'n, 41 F.3d 524, 526 (9th Cir. 1994) (concluding
that plaintiff's reasonable belief that it was unlawful for her to be subjected to a
series of sexually offensive remarks at a seminar her employer required her to
attend would support a finding that she engaged in "protected activity" for
purposes of a prima facie case of retaliatory discharge).
       27 Rav v Henderson, 217 F.3d 1234, 1240 n.3 (9th Cir. 2000); see also
Movo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994) (finding black prison guard's
belief that inmates were entitled to Title VII protection reasonable).
        28 Movo, 40 F.3d at 985. The Movo court also noted that "it has been long
established that Title VII, as remedial legislation, is construed broadly." 40 F.3d
at 985.


                                          -10-
NO. 70128-2-1/11




held that a plaintiff need not prove the conduct opposed was in fact

discriminatory but need show only that he or she reasonably believed it was

discriminatory.29

       RCW 49.60.030(1 )(a) guarantees "[t]he right to obtain            and   hold

employment without discrimination." The trial court found that Currier reasonably

believed that a white driver telling a Latino driver, on the job, that "f**ing

Mexicans are good at crossing borders" was a discriminatory practice and that he

opposed this practice by reporting it to an NSI employee. Substantial evidence

supports the trial court's findings, and these findings support the court's

conclusion that Currier was engaging in statutorily protected conduct.

       Causal Link


       The final element of a prima facie case of retaliation requires proof of a

causal link between the opposition and the adverse employment action.           To

prove a causal link between his opposition and NSI's termination of his contract,

Currier must provide evidence that his complaints about Howell's remarks were a

"substantial factor" motivating NSI's decision.30 Thus, retaliation need not be the

main reason behind the discharge decision but instead need only be the reason

which "tips the scales" toward termination.31




     29 Estevez, 129 Wn. App. at 798; Kahn, 90 Wn. App. at 130; Graves, 76
Wn. App. at 712 (citing Gifford, 685 F.2d at 1157).
       30 Allison, 118 Wn.2d at 96; Estevez, 129 Wn. App. at 800.
       31 Wilmot, 118Wn.2dat72.


                                        -11-
NO. 70128-2-1/12




       "'Because employers rarely will reveal they are motivated by retaliation,

plaintiffs ordinarily must resort to circumstantial evidence to demonstrate

retaliatory purpose.'"32 Proximity in time between the protected activity and the

discharge, as well as satisfactory work performance and evaluations before the

discharge, are both factors suggesting retaliation.33         And if an employee

establishes that he or she participated in statutorily protected opposition activity,

the employer knew about the opposition activity, and the employee was then

discharged, a rebuttable presumption of retaliation arises that precludes

summary dismissal of the case.34

       NSI maintains that it terminated Currier's contract because of poor

performance and disruptive behavior.           According to Sleeth and Franssen,

Currier's performance declined in 2008.         At trial, they testified that Currier

performed more slowly than other drivers, avoided work, and instigated conflicts

with other drivers.   They claimed that customers complained about Currier.

According to Sleeth, he and Franssen met with Currier soon after his quarrel with

Howell to "put him on notice, just tell him that we have some major issues with

his overall demeanor, the way he treats the other drivers, the way he performs

his job, his efficiency issues, his unpredictability. He seemed to anger very easily

over very small things." Currier denied that this meeting took place and denied

       32 Estevez, 129 Wn. App. at 799 (quoting Vasguez v. State, 94 Wn. App.
976, 985, 974 P.2d 348 (1999)).
      33 Wilmot, 118 Wn.2d at 69; Estevez, 129 Wn. App. at 799; Vasguez, 94
Wn. App. at 985, Kahn, 90 Wn. App. at 130-31.
      34 Estevez, 129 Wn. App. at 799; Vasguez, 94 Wn. App. at 985; Kahn, 90
Wn. App. at 131; Graves, 76 Wn. App. at 712.


                                        -12-
NO. 70128-2-1/13




that Sleeth and Franssen ever spoke to him about agitating other drivers, his

temper, customer complaints, or slow performance.

       NSI   produced     no   documentation     of   complaints   about    Currier's

performance. No driver or customer who reportedly complained to Sleeth or

Franssen testified at trial. NSI called one other driver to testify at trial. When

questioned about Currier's work ethic, the driver testified that he believed Currier

was doing "as good a job as me." The trial court noted that even Currier's status

as an independent contractor does not explain the "total absence of any writings

about the numerous problems to which the dispatchers testified."

       The trial court found inconsistencies in the nonretaliatory bases Sleeth

and Franssen provided for their termination of Currier's contract, as well as the

timing of the termination decision. At trial, Sleeth and Franssen testified that they

had made the decision to fire Currier at least a week before Currier's complaint

and waited for their meeting with Larry Graham only to confirm their decision. In

earlier answers to interrogatories, however, they made no mention of having

already made this decision.      Larry Graham testified at trial that Sleeth and

Franssen cited Currier's slow performance and safety and compliance issues

with his truck.   Graham did not recall anything about Currier agitating other

drivers or that there had been customer complaints. While Sleeth and Franssen

testified that customer complaints were a reason for Currier's termination, they

did not cite this reason in earlier interrogatory answers.




                                         -13-
NO. 70128-2-1/14




      There were also inconsistencies among the accounts of McQuade, Sleeth,

and Franssen about the meetings that occurred after Currier complained about

Howell's racist remarks. McQuade testified that she reported Currier's complaint

to Sleeth that day and to Franssen that day or the next. She testified that she,

Sleeth, and possibly Franssen met with Howell and Martinez the day after

Currier's complaint. Sleeth and Franssen, however, testified they did not meet

with the drivers.     Sleeth testified he did not speak to McQuade about the

complaint and did not know about it before terminating Currier.

      "Proof that the defendant's explanation is unworthy of credence is simply

one form of circumstantial evidence that is probative of intentional discrimination,

and it may be quite persuasive."35        Here, the trial court found a lack of

documentation for NSI's purported nondiscriminatory reasons for terminating

Currier's contract.     The court also found inconsistencies in Sleeth's and

Franssen's explanations of those reasons and in their accounts of the events

surrounding Currier's complaint.     The court found a close proximity in time

between the complaint and the termination. The court did "not find credible the

claim that Plaintiff's [cjomplaint had no effect on the decision to terminate

Plaintiff's contract." Substantial evidence supports the court's conclusion that

Currier's complaint "tipped the scales toward termination."




       35 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.
Ct. 2097, 147 L. Ed. 2d 105 (2000).


                                        -14-
NO. 70128-2-1/15



         NSI argues that the trial court's decision "would effectively hold an

employer liable for all discriminatory statements of all of its independent

contractors or sales and supply vendors that happen to be on the employer's

property."36 But this argument begins with a faulty premise—that NSI is being

held liable for Billy Howell's racially discriminatory speech.      This completely

misrepresents the basis for liability. The trial court held NSI liable for its own

retaliatory conduct against an independent contractor after he complained to NSI.

The trial court's decision does not make the law "a general civility code" beyond

the original intent of the legislature;37 it holds NSI accountable for the exact type

of retaliatory conduct the legislature sought to prevent with RCW 49.60.210(1).

We affirm the trial court's finding of liability for retaliation.

Damages and NSI's After-Acguired Evidence Defense

         RCW 49.60.030(2) provides remedies for a prevailing party, including

recovery of actual damages, costs, and reasonable attorney fees.             "Actual

damages are 'a remedy for full compensatory damages, excluding only nominal,

exemplary, or punitive damages,' that are 'proximately caused by the wrongful


         36 The Association of Washington Business filed an amicus curiae brief in
support of this argument.
      37 See Alonso v. Qwest Communications Co., 178 Wn. App. 734, 747, 315
P.3d 610 (2013), and Adams v. Able Building Supply, Inc., 114 Wn. App. 291,
297, 57 P.3d 280 (2002), for the proposition that "[t]he WLAD is not intended as a
general civility code." These cases are distinguishable as involving disparate
treatment or a hostile work environment, where the degree of abusive conduct by
co-workers is the disputed fact. The issue in this case is not Howell's
(undisputed) offensive behavior, which by itself would likely not support such a
claim.     Rather, the issue here is the alleged retaliatory conduct of NSI in
response to Currier's complaint about it.

                                             -15-
NO. 70128-2-1/16




action, resulting directly from the violation of RCW 49.60.'"38 A court may limit

economic damages if the employer shows evidence of the employee's

wrongdoing that it discovered only after the discharge.39         Under this after-

acquired evidence rule, an award for back pay is calculated from the date of the

unlawful discharge to the date the employer discovered a lawful basis for

discharge.40 To establish an after-acquired evidence defense, an employer must

prove that the wrongdoing was of such severity that had the employer discovered

the misconduct earlier, it would have terminated the employee on those grounds

alone.41

       NSI assigns error to the trial court's conclusion that NSI failed to prove an

after-acquired evidence defense. Sleeth and Franssen both testified at trial that

had they not already terminated Currier's contract, they would have done so

immediately upon discovering the condition of his truck. However, the trial court

found that "NSI would not have learned of the condition of Plaintiff's truck had

NSI not terminated his contract, because it was undisputed that NSI did not

perform regular truck inspections."      NSI's subcontractor agreement required

contractor drivers to comply with all local, state, and federal laws and regulations,

and thus Currier arguably breached his contract. But NSI did not show that its

       38 Blanev v. Int'l Ass'n of Machinists & Aerospace Workers. Dist. No. 160,
151 Wn.2d 203, 216, 87 P.3d 757 (2004) (citation omitted) (quoting Martini v.
Boeing Co., 137 Wn.2d 357, 368, 371, 971 P.2d 45 (1999)).
      39 McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362-63, 115 S.
Ct. 879, 130 L. Ed. 2d 852 (1995); Janson v. N. Valley Hosp., 93 Wn. App. 892,
900-01,971 P.2d67(1999).
       40 Janson, 93 Wn. App. at 900.
       41 Janson, 93 Wn. App. at 901 (citing McKennon, 513 U.S. at 362-63).

                                        -16-
NO. 70128-2-1/17




response would have been termination, especially given the lack of evidence that

NSI had any policy to ensure its contractors' compliance.

       NSI's tire expert, Dave Temple, testified that Sleeth's photographs showed

"there was [a] violation of the Code of Federal Regulations."         Temple also

testified, however, that he could not determine from the photographs whether the

tread on Currier's tires would require that the truck be placed out of service.

Currier's operation of his truck with expired license tabs was a civil infraction

subject to a citation.   NSI presented no evidence that it ever terminated any

driver's contract because of equipment or licensing issues or traffic infractions.

The trial court did not find the testimony of Sleeth and Franssen credible.

       This court will not disturb a damages award unless the award falls outside

the range of substantial evidence in the record, shocks the conscience of the

court, or appears to be the result of passion or prejudice.42 And this court

strongly presumes the trial court's verdict is correct.43     Because substantial

evidence supports the trial court's findings, we affirm the court's award of

damages, attorney fees, and costs.

Appellate Costs and Attorney Fees

       Currier requests attorney fees and costs on appeal. Under RAP 18.1 and

RCW 49.60.030(2), the prevailing party is entitled to appellate fees and costs.44



       42 Bunch v. King County Dep't of Youth Servs., 155 Wn.2d 165, 179, 116
P.3d 381 (2005); Burchfiel, 149 Wn. App. at 484.
      43 Bunch, 155 Wn.2d at 179; Burchfiel, 149 Wn. App. at 484.
       44 Allison, 118Wn.2dat98.


                                        -17-
NO. 70128-2-1/18




We award Currier appellate costs and reasonable attorney fees, subject to his

compliance with RAP 18.1(d).

                               CONCLUSION


      Because substantial evidence supports the trial court's findings of fact

regarding liability and damages and those findings support the court's

conclusions of law, we affirm and award Currier his costs and reasonable

attorney fees on appeal.



                                                   rl4~0Uc^vtt
WE CONCUR:




   Cfj^t&&JF_^




                                     -18-
