Wash. Court of Appeals published opinion — 857088.pdf

Citation: Wash. Court of Appeals published opinion — 857088.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/857088.pdf ↗

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judgment, we also vacate the trial court’s cost award as premature, as the

substantially prevailing party has not yet been determined. Nonetheless, we

exercise our discretion to address Bittner’s five arguments relating to certain costs

awarded to Symetra under RCW 4.84.010 because these issues are likely to recur

on remand regardless of which party prevails. 15

14 For these same reasons, even if we considered Bittner’s disparate treatment claim on the merits

instead of finding waiver, we would conclude with regard to this claim that Bittner fails to overcome
the third McDonnell Douglas step because he has not shown that Symetra’s reasons for its
employment decisions were pretextual. See Marin v. King County, 194 Wn. App. 795, 808-09, 378
P.3d 203 (2016) (quoting Kirby v. City of Tacoma, 124 Wn. App. 454, 467, 98 P.3d 827 (2004))
(pretext may be shown under the third McDonnell Douglas step if the employer’s reasons “(1) have
no basis in fact, (2) were not really motivating factors for the decision, or (3) were not motivating
factors in employment decisions for other employees in the same circumstances”).
15 Although we generally review cost awards for an abuse of discretion, we may choose to resolve

legal errors that may recur on remand. See In re Marriage of Rockwell, 157 Wn. App. 449, 454,

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 85708-8-I

First, Bittner argues the trial court erroneously awarded expert witness fees

to Symetra. We agree. “Costs have historically been very narrowly defined, and

RCW 4.84.010 limits cost recovery to a narrow range of expenses . . . .” Hume v.

Am. Disposal Co., 124 Wn.2d 656, 674, 880 P.2d 988 (1994). In Estep v. Hamilton,