THOMPSON v. KING FEED NUTRITION SERVICE INC (2003)

PUBLISHED IN PART

King Feed & Nutrition Service, Inc. appeals an adverse judgment on a jury verdict for $300,000 for its negligent destruction by fire of Glenn and Janice Thompson's barn.   A proper measure of damages for destruction of improvements on real property where the land itself is not damaged is the reasonable cost of restoration of those improvements, provided the injured party is made whole without receiving a windfall.¹  The trial court properly granted the Thompsons' motion for judgment as a matter of law as to the proximate cause of the fire.   And the trial court did not abuse its discretion in granting CR 37(c) sanctions against King Feed for its failure to admit certain requests to admit during discovery.   There being no other prejudicial error, we affirm.

 In July of 1998, the Thompsons agreed to rent their barn to William Meiser of King Feed for the purpose of storing baled hay collected from the Thompson farm and surrounding properties.   Meiser hired hay cutters and balers, and oversaw the operation.   The Thompsons were not involved in any aspect of the operation other than renting their barn as the storage site for the hay.   The dry hay was stored on the second story of the barn.   Wet hay was stored outside on the north wall of the barn under a lean-to roof.   In August 1998, the hay on the north wall caught fire, and the barn and its contents were destroyed.

The Thompsons sued King Feed, claiming that the company was negligent in failing to properly and safely store hay next to and in their barn.   King Feed generally denied the allegations, and raised the affirmative defense that the Thompsons may have been comparatively negligent for the loss by fire.

During discovery, the Thompsons sent requests to admit to King Feed. The company denied the requests, stating in some of its responses that “discovery and investigation are continuing.”

Pre-trial, the trial judge denied King Feed's motion in limine to restrict any evidence of restoration costs of the barn and to adopt diminution in value as the sole measure of damages.   During trial, the court admitted evidence of the differential in market value of the property before and after the fire as well as restoration cost of the barn.   After the close of King Feed's case, the Thompsons moved for a directed verdict on negligence.   The trial judge partially granted the motion, directing a verdict solely on the issue of proximate cause of the fire.   The court submitted the remaining issues to the jury.

The jury returned a verdict for the Thompsons for $300,000, and the court entered judgment on that verdict.   Post-trial, the court awarded the Thompsons CR 37(c) expenses for King Feed's failure to admit certain requests to admit.

 King Feed appeals the judgment on the jury verdict and the order on expenses.

MEASURE OF DAMAGES

King Feed's basic argument is that the court improperly rejected the company's proposed measure of damages instruction based on WPI 30.11.   That pattern instruction mandates the use of the “lesser than” rule as the measure of damages under certain circumstances.   This argument is unpersuasive, and we reject it.

Turning first to King Feed's argument that WPI 30.11 accurately states the law on damages for the barn in this case, we hold that the pattern instruction is not applicable to the destruction of the improvements to real property that is at issue in this case.   A plain reading of that pattern instruction shows that it is inapplicable here:

Measure of Damages-Damage to Personal Property-Repairs or Difference in Value Before and After Damage

The lesser of the following:

1.  The reasonable value of necessary repairs to any property that was damaged;  or

2.  The difference between the fair cash market value of the property immediately before the occurrence and the fair cash market value of the unrepaired property immediately after the occurrence.

Specifically, the heading to the instruction plainly states it is the measure of damages for personal property.   Moreover, the “Note On Use” for this pattern instruction expressly states its inapplicability to “real estate or improvements thereon.” ²  Because the barn is an improvement to real estate, not personal property, the use of this proposed pattern instruction was not warranted in this case.   The  court properly rejected King Feed's proposed instruction based on WPI 30.11.

Rather, Burr articulates the applicable rule for this case.   There, the supreme court was faced with the question of what measure of damages applied to compensate an owner for damages to a residential boiler.   It was damaged due to the negligence of the defendant's employee while making repairs.   The trial court awarded damages equal to the cost of replacing the boiler with a new one.   The supreme court set forth the measure of damages applicable to tort actions as follows:

The measure of damages in tort actions is that indemnity which will afford an adequate compensation to a person for the loss suffered or the injury sustained by him as the direct, natural, and proximate consequence of the wrongful act or omission. (citations omitted).   The rule for the measurement of damages for injury to property, generally, is the same as that applicable to torts generally. (citations omitted).   In the case of real property, where the injury is only temporary, and the property can be restored to its original condition at a reasonable expense and at a cost less than the diminution in the value of the property, the general rule for the measure of damages is the cost of restoration. (citations omitted).

The general rule is well stated in Koyen v. Citizens' National Bank, 107 Neb. 274, 185 N.W. 413, 414, as follows:

‘Property such as ․ parts of buildings ․ is capable of being replaced, and the proper measure of damages for the destruction thereof is the cost of restoring or replacing such property. (citation omitted).   If the property destroyed has no value separate and apart from the realty, the measure of damages for property destroyed is the difference between the value of the real estate before the injury and after the injury.   But as to the destruction of property which is a part of the real estate, whose destruction does the realty itself no damage and is capable of being repaired  or replaced, the measure is the cost of repairing or restoring the same.’ [3]

It is noteworthy that in Burr our state supreme court cited two of its prior decisions, Koch v. Sackman-Phillips Inv. Co.,⁴ and Clark Lloyd Lumber Co. v. Puget Sound & Cascade Ry. Co.,⁵ as being consistent with its quotation of the rule stated in Koyen, the Nebraska case.   Both of those prior Washington decisions specifically provided for the use of restoration costs as the measure of damages for destruction of improvements to real property.   Thus, subject to limitations of adequately compensating the victim for destruction of improvements to real property and consideration of the diminution in value of property due to destruction, the cost to restore the improvements is the general rule for the measure of damages.

King Feed's reliance on Hogland v. Klein⁶ to support its argument that a “lesser than” rule controls here is misplaced.   There, Hogland Transfer Company sued the owner of a building with whom it had contracted for payments due for moving the building.⁷  The owner counterclaimed for damages to the building during the move.⁸  The move required the building to be divided into two parts.   The first part was transferred without incident.   But the second part of the building was demolished when one of the supporting timbers supplied by Hogland broke.⁹  When the supreme court addressed the question of damages on the owner's counterclaim, it stated that the trial court had found that the value of the damaged portion of the building before the accident was $1000;  that immediately after the accident it was $100;  and that the cost of repairing the building “far  exceeded its actual value prior to the accident.” ¹⁰  The trial court had adopted a measure of damages that permitted the award of the differential in value of the building rather than its cost of repair.   The supreme court approved that measure of damages for the case.

Whatever value that case may have for stating the measure of damages for a damaged portion of a building falling from timbers during a move, it does not mandate that damages for the improvements to realty here be the lesser of restoration costs versus the differential in market value of the property before and after the fire loss.   The supreme court indicated in Hogland that the cost of repair “far exceeded” the market value of the building prior to the loss.   Here, the appraisal evidence established that the fair market value of the barn was $300,000.   The cost analysis segment of the appraisal indicated the cost of restoration at $500,000, some $200,000 more.   Other evidence indicated the diminution in value of the property due to the loss of the barn was in the $100,000-$110,000 range.   On this record, we do not view the $200,000 differential between the $300,000 market value of the barn and the $500,000 cost of restoration to be so great as to require the imposition of a ceiling of $110,000 on damages, as the Hogland court did in its analysis.   This is particularly true in view of the fact that the jury heard all the evidence, and rendered its verdict of $300,000 in damages-less than the full cost of restoration.   There is nothing to suggest that the verdict represents a windfall to the Thompsons-the $300,000 verdict is precisely the amount to which an expert testified as the fair market value of the barn before destruction.

One other supreme court case is instructive, Falcone v. Perry.¹¹  There, a runaway truck rolled backwards down the street into a house, causing extensive damage.¹²  The company who owned the truck conceded liability and the  question was the proper amount of damages.   The total repair cost estimate was $4,576.¹³ But the diminution in value of the property was merely $400.¹⁴  The trial court instructed the jury that the measure of damages was the cost of restoration “unless the cost exceeds the diminution in value as a result of the accident, in which event the measure of damages would be the difference between the fair cash market value of the plaintiffs' property immediately before and immediately after the accident.” ¹⁵  Nevertheless, the jury rendered a verdict of $4,095, which was over ten times the diminution in value that occurred as a result of the damage.   On appeal, the supreme court sustained the jury verdict, after citing both Hogland and Burr as the cases supplying the appropriate rules for the case.¹⁶

Considering this line of supreme court cases, we conclude that none requires the imposition of a “lesser than rule” in this case.   Rather, compensation that is adequate to compensate the plaintiff without providing a windfall is what is required.   Here, as in Falcone, the estimate to restore the property after the fire damage exceeded the diminution in value of the property as a result of the fire.   Likewise, the jury in each case rendered a verdict less than the full cost of restoration.   In neither case was the cost of restoration disproportionate to the value of the property before the loss.   Finally, there is nothing to suggest a windfall in either case.

Although King Feed argues otherwise, DeYoung v. Swenson¹⁷ does not support a different result.   It is consistent with the above line of supreme court cases.

In DeYoung, the negligent burning of debris by the defendant on his own land led to the destruction of plaintiff's barn, which was located on an adjacent lot.   As to the proper measure of damages, the court stated:

Where the wrong consists in the removal or destruction of some addition, fixture or part of real property, the loss may be estimated upon the diminution in the value of the premises, if any results;  or upon the value of the parts severed or destroyed, and that valuation should be adopted which will prove most beneficial to the injured party, as he is entitled to the benefit of his property intact. (citations omitted).[18]

Applying that rule to the facts of the case, the court awarded the restoration costs of the destroyed barn to the plaintiff.   The court did not impose any restriction based on diminution in value of the property as the result of the fire, saying, “the award was reasonable and logically related to the market value” of the property.¹⁹

King Feed also contends that Pepper supports its position.   We disagree.

King Feed quotes a portion of that decision:

Washington courts have consistently applied the “lesser-than” rule in fixture cases where the damaged real property is affixed to land.   In those cases “where the injury is only temporary, and the property can be restored to its original condition at a reasonable expense and at a cost less than the diminution in the value of the property, the general rule for the measure of damages is the cost of restoration.” 20

King Feed also quotes a footnote to the opinion:  “For purposes of clarity, we note that the ‘lesser than’ rule is alive and well as applied to fixture cases, such as fences,  buildings, etc., but not in cases where the injuries are to the land itself.” ²¹

Notwithstanding the above quotations, the Pepper court, when considering the reasonableness of the cost to restore damaged property, also stated:  “[t]he fact that the cost of restoring property to its prior condition exceeds the amount by which the land's value has been diminished does not necessarily make those repair costs unreasonable.” ²²  Among the authorities that the Pepper court cites in support of this principle is Falcone, the case we discussed previously in this opinion.   Thus, the supreme court has approved the award of restoration costs even when such costs exceeded the diminution in value of the damaged property in order to provide adequate compensation to the victim without also providing a windfall.   Thus, Pepper is of no help to King Feed.

Based on the supreme court authority of Falcone and Burr, we conclude that there was no requirement in this case to impose a limit on damages equivalent to the alleged $100,000 diminution in value of the barn.   There was no evidence of windfall here.   Thus, application of the “lesser than” rule as a ceiling to damages for King Feed's destruction of the Thompsons' barn by fire was not required.

We affirm the judgment and order.

The balance of this opinion has no precedential value.   Accordingly, pursuant to RCW 2.06.040, it shall not be published.

JURY INSTRUCTION

King Feed also argues on appeal that the court's instruction No. 8 was an incorrect statement of the law, a misleading charge to the jury, and prejudicial.   We need not decide whether the instruction was either an incorrect statement of the law or misleading because King Feed has failed to show prejudice.

Jury instructions are sufficient when they allow the parties to argue their theory of the case, are not misleading, and when read as a whole properly inform the jury of the applicable law.23  Even if an instruction is misleading, it will not be reversed unless prejudice is shown.24  Jury instructions are reviewed de novo, and an instruction that contains an erroneous statement of the applicable law is reversible error where it prejudices a party.25

The court's instruction No. 8 states:

It is the duty of the court to instruct you as to the measure of damages.   By instructing you on damages the court does not mean to suggest for which party your verdict should be rendered.

If your verdict is for the plaintiff, then you must determine the amount of money which will reasonably and fairly compensate the plaintiff for such damages as you find were proximately caused by the negligence of the defendant.

If you find for the plaintiff, you should consider the following factors:

1.  The value the barn added to the plaintiffs' property immediately before the fire;

2.  The fair market value of the barn;

3.  The fair rental value of the barn;

4.  The reasonable cost to replace the barn if you find:

a. that there is reason personal to the owner for replacing the barn or

b. where there is reason to believe that the plaintiff will replace the barn to its original condition, and you find that the cost of replacing the barn, although it may be greater than the value added to the property by the barn, is not unreasonably disproportionate to the diminution in market value of the property because of the loss of the barn.

The burden of proving damages rests upon the plaintiff and it is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence.

It appears the trial court drafted the above instruction by referring to Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Service Company. 26

The question is whether the use of this instruction was prejudicial.   We conclude that it was not.

King Feed's argument that it suffered prejudice because a double or multiple recovery could have occurred is nothing more than speculation as to what the jury might have done in reaching its verdict.   But the jury awarded an amount well within the range of evidence.   Here, the range of testimony as to damages ranged from a high of $500,000 for restoration costs for the destroyed barn to a low of $100,000 as the lower value for diminution in value as the result of the fire.   The jury rejected both extremes, awarding damages of $300,000 for which substantial evidence in the record existed.   There was no prejudice.

JUDGMENT AS A MATTER OF LAW

King Feed also argues that the trial court erred in directing a verdict in favor of the Thompsons on the issue of proximate cause.   Again, we disagree.

A court may grant a motion for judgment as a matter of law when there is no competent evidence or reasonable inference that would sustain a verdict for the nonmoving party.27  The court must accept the truth of the nonmoving party's evidence and draw all reasonable inferences in the light most favorable to the party against whom the motion is made.28

King Feed argues that there was evidence and reasonable inferences from that evidence to support its theory on proximate cause.   The record shows just the opposite.

The company argues that a reasonable inference to support its theory at trial can be drawn from the fact that spontaneous combustion of hay in Western Washington is extremely rare.   But two fire investigation experts testified that spontaneous combustion was, in fact, the most likely cause of the fire that destroyed the barn in this case.   David Kreg, a fire investigator hired by the Thompsons' insurer, as well as Meiser testified that spontaneous combustion is rare in Western Washington.   But Meiser also testified that he was aware of one other spontaneous combustion fire in Western Washington.   Furthermore, Glenn Thompson as well as Kreg testified that the hay in this case continued to smolder and burst into flame days after the fire, requiring vigilant watering down of the remaining hay and debris piles.   Thus, even if spontaneous combustion of hay may generally be rare in Western Washington, this record demonstrates that it was the proximate cause of this fire.   There is no reasonable inference to the contrary.

King Feed further argues that a reasonable inference could be drawn from testimony concerning the electrical system in the barn that faulty wiring was the most likely cause of the fire.   Again, we disagree.

The fire investigation experts confidently ruled out the electrical system as a source of the fire.   King Feed points to the testimony of Glenn Thompson regarding the electrical system being “added and fooled with by people who didn't know what they were doing.”   A careful reading of the record, however, reveals that Thompson was speaking not about the destroyed barn, but about his farmhouse, on which the Thompsons were conducting major renovations when the barn fire broke out.

King Feed also argues that testimony about the electrical repairs done on the barn five to six months before the fire could lead one to conclude the system was somehow faulty.   Again, the record does not substantiate the argument.

The record shows the proper chronology of events.   Thompson testified that he had heard some “snapping” in the switch box and hired someone to perform the repair.   This person, however, was not an electrician but a “cable guy.”   When Thompson discovered this, he hired an electrician to go over the electrical system to make sure everything was working.   This was because the Thompsons had been away in Alaska and renters had been using the barn.   From that point on, the electrical system in the barn worked fine, except that some motion sensing lights outside would not turn off.   The Thompsons used the main panel switch to control these lights because they were on the top of the barn and difficult to repair.   Contrary to the assertions of King Feed, the only logical conclusion from this evidence is that following the repairs the electrical system was working well.   This does not give rise to any inference that something other than spontaneous combustion was the proximate cause of the fire.

King Feed also challenges the assertion that Meiser admitted that spontaneous combustion was the likely cause.   In support of the directed verdict in favor of the Thompsons, the judge relied in part on Meiser's testimony that, “it seems probable that [spontaneous combustion is] a likely cause, but there was no other evidence either way.”   King Feed argues that this is not the same as stating something is a “likely cause.”   This argument is contrary to the common meaning of these words.  “Probable” means likely to happen.29  Its synonyms are possible and likely.30  “Likely” means possessing or displaying the qualities or characteristics that make something probable. 31

Alternatively, King Feed argues that Meiser's statement that “there was no other evidence either way” renders this testimony equivocal at best.   King Feed argues that a reasonable inference from this statement would be that Meiser did not actually make an admission.   We disagree.   We view the candid statement that there was no other evidence either way as an admission of just that:  there was nothing to support the view that spontaneous combustion was not the cause of the fire.32

We conclude that the directed verdict on the limited issue that the proximate cause of the fire was spontaneous combustion was proper.

COMMENT ON THE EVIDENCE

For the first time on appeal, King Feed argues that Instruction 3A directing the verdict on proximate cause constituted an improper comment on the evidence by the trial judge in violation of Article 4, Section 16 of the Washington Constitution.33  Because King Feed failed to make this argument below, and it does not constitute a “manifest error affecting a constitutional right” under RAP 2.5, we decline to review this claim.34

EXPENSES ON FAILURE TO ADMIT

King Feed contends that the trial court abused its discretion when it awarded sanctions under CR 37(c) for King Feed's failure to admit certain matters in the requests for admission propounded by Thompson.   We hold that the trial court properly exercised its discretion in awarding expenses to the Thompsons.

We review the imposition of sanctions for an abuse of discretion.35  A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.36  The trial court has broad discretion under CR 37 to make whatever disposition is just in light of the facts because “the purpose of the rule is to make available to the court the means of preventing injustice when one party has by his conduct placed the other party at an unfair disadvantage.” 37  “[W]hen advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of discovery or unnecessary use of defensive weapons or evasive responses” the result is excessive costs for both parties and the judicial system.38

If a party fails to admit the truth of any matter as requested in a CR 36 request for admission, CR 37(c) allows the trial court to award reasonable expenses and attorney fees 39 incurred in making that proof unless:

(1) the request was held objectionable pursuant to rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe the fact was not true ․, or (4) there was other good reason for the failure to admit.[40]

Because the purpose of the rule is to eliminate from controversy undisputed matters, a party is not required to concede legal conclusions.41  However, “[a] party who considers that a matter of which an admission has been requested presents a genuine issue for trial or a central fact in dispute may not, on that ground alone, object to the request.” 42  King Feed limits its challenge to exception 3 to the award of expenses.43

The requests for admission at issue are:

Request for Admission 1:  The defendant negligently stored its hay in the plaintiffs' barn.

RESPONSE:  Denied

Request for Admission 2:  The defendant's negligent storage of [wet] hay was a proximate cause of the fire that burned the plaintiffs' barn.

RESPONSE:  Defendant denies this request for admission because it does not yet have sufficient information upon which to base an informed decision despite reasonable inquiry.   Discovery and investigation are continuing.

Request for Admission 3:  There was no contributory negligence by the plaintiffs which proximately caused or contributed to the start of the fire in their barn.

RESPONSE:  Defendant denies this Request for Admission because it does not yet have sufficient information upon which to base an informed decision despite reasonable inquiry.   Discovery and investigation are continuing.

Request for Admission 4:  The defendant's negligence was the sole proximate cause of the fire that burned the plaintiffs' barn.

RESPONSE:  Denied.

Request for Admission 5:  There was no contributory negligence or comparative fault by the plaintiffs which proximately caused or contributed to any of their damages as alleged in their Complaint.

RESPONSE:  Defendant denies this Request for Admission because it does not yet have sufficient information upon which to base an informed decision despite reasonable inquiry.   Discovery and investigation are continuing.

King Feed relies on Marchand v. Mercy Medical Center,44 a federal case, and does not argue that the state cases of Brust or Santos v. Dean 45 control.   Accordingly, we will only address King Feed's reasonableness argument under Marchand.

Although Marchand is a case under the Federal Rules of Civil Procedure, the rule is substantially similar to CR 37(c).  Marchand was injured on the job and taken to a hospital where he became paralyzed subsequent to having his neck and spine restraints removed for x-rays.   Marchand sued, claiming the doctors were negligent.   Marchand served requests for admissions on a doctor who either objected to or denied the requests.   The test for sanctions under federal rule 37(c) is whether the party acted reasonably in believing that he might prevail, not whether the party actually prevailed at trial.46  The court rejected the argument that because the doctor could produce one expert to say he was not negligent meant he was “reasonable” in believing he would prevail, especially in light of the doctor's admission that he removed the immobilization devices.47

In this case, King Feed failed to call a single expert to counter the overwhelming negligence evidence put forth by the Thompsons.   And its attempts to deal with the evidence in the record to support its theory were wholly unpersuasive.   Furthermore, Meiser admitted that the likely cause of the fire was in fact spontaneous combustion. This record shows that there was no reasonable basis to contest liability in this case.   The only real questions at trial were the measure and amount of damages to be awarded.

King Feed further maintains it had reasonable grounds to believe the facts asserted were not true.   It points to the fact that the judge refused to grant plaintiff's motion for a directed verdict on the issue of negligence.   King Feed argues that if there is sufficient evidence to submit an issue to a jury, it is reasonable for a party to believe he might prevail on that issue.

But the trial judge in her ruling stated that although King Feed's argument might seem appealing, she took a conservative approach in denying the motions to spare the expense of retrial in the event she was overturned.   She balanced the fact that “the cost associated with having to go forward with the proof can be covered by an award of CR 37(c) expenses, without the expense of retrial.”   Furthermore, the trial judge determined that

given the Fire Marshall's opinion and that of experts hired by both sides regarding the likely cause of this barn fire as well as the investigators' ruling out of an electrical cause, it doesn't appear that there was a reasonable ground to believe that the cause of the fire was anything other than storage of wet hay and that the plaintiff was not contributorily negligent.

Moreover, King Feed did not object to any of the requests, but rather indicated that discovery was ongoing.   Even when confronted at deposition over the cause of the fire it still refused to concede or supplement its responses to the requests.

Finally, the trial judge limited any CR 37(c) recovery to that point after which a reasonable person in King Feed's position should have conceded the issues.   King Feed has failed to demonstrate an abuse of discretion.

We conclude that the imposition of sanctions under CR 37(c) was proper.

ATTORNEY FEES AND COSTS ON APPEAL

The Thompsons request an award of reasonable attorney fees on appeal under CR 37(c) and RAP 14.1, 14.2, 14.3 and 14.4.   Because none of these provisions support such a request, we deny it.

We affirm the judgment and order.

FOOTNOTES

1.   Burr v. Clark, 30 Wash.2d 149, 158, 190 P.2d 769 (1948);  see Pugel v. Monheimer, 83 Wash.App. 688, 692, 922 P.2d 1377 (1996), review denied, 131 Wash.2d 1024, 937 P.2d 1101 (1997) (citing Pepper v. J.J. Welcome Constr. Co., 73 Wash.App. 523, 543-44, 871 P.2d 601, review denied, 124 Wash.2d 1029, 883 P.2d 326 (1994), overruled on other grounds by Phillips v. King Co., 87 Wash.App. 468, 943 P.2d 306 (1997)).

2.   “This instruction may not be appropriate for damages to real estate or improvements thereon.”   6 WASHINGTON PRACTICE, WASHINGTON PATTERN JURY INSTRUCTIONS:  CIVIL, WPI 30.11 at 301 (4th ed.2002).

3.   Burr, 30 Wash.2d at 158, 190 P.2d 769 (italics ours).

4.   9 Wash. 405, 37 P. 703 (1894).

5.   92 Wash. 601, 159 P. 774 (1916), rev'd on rehearing, 96 Wash. 313, 165 P. 94 (1917).

6.   49 Wash.2d 216, 298 P.2d 1099 (1956).

7.   Hogland, 49 Wash.2d at 217, 298 P.2d 1099.

8.   Hogland, 49 Wash.2d at 217, 298 P.2d 1099.

9.   Hogland, 49 Wash.2d at 218, 298 P.2d 1099.

10.   Hogland, 49 Wash.2d at 220, 298 P.2d 1099.

11.   68 Wash.2d 909, 416 P.2d 690 (1966).

12.   Falcone, 68 Wash.2d at 910, 416 P.2d 690.

13.   Falcone, 68 Wash.2d at 910, 416 P.2d 690.

14.   Falcone, 68 Wash.2d at 911, 416 P.2d 690.

15.   Falcone, 68 Wash.2d at 912, 416 P.2d 690.

16.   Falcone, 68 Wash.2d at 912-13, 416 P.2d 690.

17.   6 Wash.App. 452, 493 P.2d 1247 (1972).

18.   DeYoung, 6 Wash.App. at 454, 493 P.2d 1247 (italics ours).

19.   DeYoung, 6 Wash.App. at 454, 493 P.2d 1247.

20.   Pepper, 73 Wash.App. at 541, 871 P.2d 601.

21.   Pepper, 73 Wash.App. at 542, n. 12, 871 P.2d 601.

22.   Pepper, 73 Wash.App. at 544, 871 P.2d 601.

23.   Keller v. City of Spokane, 146 Wash.2d 237, 249, 44 P.3d 845 (2002) (citation omitted).

24.   Walker v. State, 67 Wash.App. 611, 615, 837 P.2d 1023 (1992).

25.   Cox v. Spangler, 141 Wash.2d 431, 442, 5 P.3d 1265 (2000) (citing State v. Wanrow, 88 Wash.2d 221, 559 P.2d 548 (1977)).

26.   618 So.2d 874 (1993).

27.   Litho Color, Inc. v. Pacific Employers Ins. Co., 98 Wash.App. 286, 298, 991 P.2d 638 (1999) (citing McGreevy v. Oregon Mut. Ins. Co., 74 Wash.App. 858, 866, 876 P.2d 463 (1994), aff'd, 128 Wash.2d 26, 904 P.2d 731 (1995)).

28.   Litho Color, 98 Wash.App. at 298, 991 P.2d 638 (citing Douglas v. Freeman, 117 Wash.2d 242, 247, 814 P.2d 1160 (1991)).

29.   The American Heritage Dictionary, 1443 (3d. ed.1992).

30.   Webster's Third New International Dictionary, 1806 (1993).

31.   The American Heritage Dictionary, 1042 (3d. ed.1992);  Webster's Third New International Dictionary, 1310 (1993).

32.   In closing arguments King Feed even conceded that it was unable to “come up with proof that this was maybe an electrical fire ․” or that “there was some kids smoking in the barn back there ․” because the company “didn't have positive evidence of it.”

33.   Article 4, Section 16 states, “Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.”

34.   Despite King Feed's characterization, instruction 3A was not a comment on the evidence.   The cases construing the constitutional provision at issue involve a judge making comments about the evidence at trial with respect to the issues actually submitted to the jury for decision.   The point of a directed verdict is that particular issues are decided as a matter of law and not submitted to the jury.   Thus, there is no constitutional matter at issue here where the judge directed a verdict on the issue of proximate cause.   Accordingly, we need not inquire further.   See State v. Lynn, 67 Wash.App. 339, 835 P.2d 251 (1992) (alleged error that does not suggest a constitutional issue is not reviewed without preservation below).

35.   Moe v. Wise, 97 Wash.App. 950, 969, 989 P.2d 1148 (1999), review denied, 140 Wash.2d 1025, 10 P.3d 406 (2000) (citing Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 338, 858 P.2d 1054 (1993)).

36.   State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

37.   Reid Sand & Gravel, Inc. v. Bellevue Properties, 7 Wash.App. 701, 705, 502 P.2d 480 (1972).

38.   Fisons, 122 Wash.2d at 341, 858 P.2d 1054.

39.   See Clausing v. Kassner, 60 Wash.2d 12, 20, 371 P.2d 633 (1962) (not an abuse of discretion to allow an award of reasonable attorney fees under the rule).

40.   CR 37(c).

41.   Brust v. Newton, 70 Wash.App. 286, 295, 852 P.2d 1092 (1993), review denied, 123 Wash.2d 1010, 869 P.2d 1085 (1994) (citing Puget Sound Nat'l Bank v. St. Paul Fire & Marine Ins. Co., 32 Wash.App. 32, 49, 645 P.2d 1122, review denied, 97 Wash.2d 1036 (1982)).

42.   CR 36(a).

43.   Although King Feed states that it is arguing against the imposition of sanctions under both exceptions 3 and 4, it fails to address the “other good reasons” for its failure to admit under exception 4. Accordingly, this analysis addresses King Feed's sole argument that it had reasonable grounds in failing to admit.

44.   22 F.3d 933 (9th Cir.1994).

45.   96 Wash.App. 849, 982 P.2d 632 (1999), review denied, 139 Wash.2d 1026, 994 P.2d 845 (2000).

46.   Marchand, 22 F.3d at 937.

47.   Marchand, 22 F.3d at 937.

COX, A.C.J.

COLEMAN and GROSSE, JJ., concur.