Eleven pipe fitters sued their employer, Hanford contractor Fluor Federal Services, for wrongful discharge in violation of public policy alleging that they were fired for raising safety concerns or supporting employees who raised such concerns. The pipe fitters refused to install valves that were not rated for the pipes they were using, out of a concern that doing so would result in nuclear contamination and worker injury. ?Fluor then laid off the pipe fitters, prompting them to file a complaint with OSHA for retaliatory discharge. After OSHA found the layoff retaliatory, Fluor settled the complaint and reinstated the employees. However, Fluor then laid off other pipe fitters who allege they were laid off in retaliation for their support of the complainants. ?Fluor then terminated the complainants again.?? After a trial in superior court, the jury awarded a total of $4,802,600 in back pay, front pay, and emotional distress to all 11 pipe fitters. ?Four months after the verdict, the Washington Supreme Court ruled in Korslund v. DynCorp. Tri-Cities Services, Inc., 156 Wn.2d 168 (2005), as a matter of law that the Energy Reorganization Act (ERA) provided adequate remedies to protect the public policy in that case, which had similar facts.?? Korslund thus held that the workers there could not satisfy the ?jeopardy? element of the wrongful discharge tort. ?Fluor filed a CR 60 motion asserting that Korslund mandated dismissal of the pipe fitters? case. ?In response, the pipe fitters argued that Fluor had explicitly waived all arguments about the (clarity and) jeopardy elements in the parties? trial management report. Similarly, at trial, Fluor did not raise the clarity and jeopardy elements so the only issue for the jury? was? causation–whether? the? pipe? fitters? safety ?complaints ?were ?a ?substantial ?factor? in their ?discharge.???? The ?trial ?court ?agreed, ?and denied Fluor?s motion.
Certified for direct review, the Washington Supreme?? Court?? affirmed?? the?? jury?s?? verdict holding that Korslund was not a change in the law relieving Fluor of its waiver ?because the conclusion ?we ?reached? in ?Korslund ?II ?was ?an open question at the time of the waiver.??? The Court held that the Court of Appeals? decision in Korslund in effect at the time of the pipe fitters? trial ?did not evaluate whether the ERA remedy procedures themselves were adequate to protect the public policy? so Fluor?s failure to argue that the ERA was adequate ?does not qualify for an exception to that waiver.??? The Supreme Court also noted that the waiver prejudiced the pipe fitters because they ?reasonably chose not to develop arguments? such as defining the public policy based on the ERA and other statutes so ?it is possible that the ERA remedies, though adequate as a matter of law in Korslund [], would not adequately protect the proffered public policy in this case.? ?Further, the Court commented that the pipe fitters ?could have presented factual evidence that, for example, they took specific actions to protect public policy that were not covered? by? the? ERA? remedies?? so? ?Fluor?s waiver? was? not? inconsequential? to? the? pipe fitters? case.??? The Court also rejected Fluor?s claims that testimony of the Company?s ?prior bad acts? retaliating against other employees required reversal, and it noted that the trial court properly admitted evidence that Company managers tried to identify a caller to a safety hotline.?? In addition to finding the trial court?s erroneous admission of other evidence harmless, the Supreme Court held that ?The evidence supporting the front pay awards is not negated by the? ?pipe? ?fitters?? ?subsequent? ?procurement? ?of ?comparable employment.??? ?The Court granted fees on appeal to the plaintiff but affirmed the trial court?s denial of costs beyond those defined in RCW 4.84.010.? ?Justice Sanders wrote a brief dissent solely on the issue of costs explaining: ??To make successful plaintiffs whole ?reasonable attorney fees? must, by necessity, contemplate expenses other than merely the hours billed by an attorney?.? ?In sum, the pipe fitters should be awarded? ?litigation? ?expenses? ?as? ?part? ?of? ?those ?reasonable ?attorney’s ?fees? ?mandated ?by ?RCW 49.48.030.? ?Brundridge v. Fluor Fed. Servs., Inc., 191 P.3d 879 (2008) (Owens, J.).