Opinion
ORDER CHANGING OPINION
It is hereby ordered that the opinion in the above cause, as the same appears at 131 Wash.2d 706, [934 P.2d 1179,] be changed as follows:
1. The following paragraphs are added after the paragraph ending with the words "attorney fees." in the fourth line from the top of page 719 [2nd column, ninth line from the bottom of page 1185 of 934 P.2d]:
In reaching this conclusion, we are not unmindful of our recent decision in Louisiana-Pacific Corp. v. Asarco Inc., 131 Wash.2d 587, 934 P.2d 685 (1997). There, we considered a statute with language similar to that contained in RCW 64.40.020 8 and held that trial courts are not limited in awarding costs under that statute to the items enumerated in RCW 4.84.010, but could "additionally award other reasonably necessary expenses of litigation based upon such equitable factors as the court determines are appropriate." Louisiana-Pacific, 131 Wash.2d at 604, 934 P.2d 685. Aside from the unique policy considerations that impelled our decision in Louisiana-Pacific, that case is distinguishable in that the definition section of RCW 64.40 provides, "Damages ... are not based upon ... litigation expenses." RCW 64.40.010(4). Similar language is not present in the statute we reviewed in Louisiana-Pacific. Because we believe that the phrase "litigation expenses" encompasses expert witness fees, we are left to conclude that the plain language of RCW 64.40 bars the awarding of such fees in cases maintained under RCW 64.40.
Even if the phrase "litigation expenses" could be said to be ambiguous, the legislative history of RCW 64.40 supports our view that expert witness fees may not be awarded as costs. A draft of House Bill 1006, the measure that was eventually enacted into law as RCW 64.40, contained language providing that successful plaintiffs may be awarded "litigation expenses," which it defined as "all actual expenses incurred in pursuing remedies under this chapter, including ... the costs of the appearance of witnesses." H. Bill 1006, 47th Leg.Reg.Sess. § 4(5), § 2(5) (1982) (emphasis added). The fact that RCW 64.40 does not contain the aforementioned provision indicates that the Legislature did not intend for successful plaintiffs to be awarded expert witness fees as costs. Cf. Elovich v. Nationwide Ins. Co., 104 Wash.2d 543, 549, 707 P.2d 1319 (1985) (considering prior version of enacted bill as evidence of legislative intent). 2. New footnote 8 is inserted at the bottom of page 719 [Bottom of page 1185 of 934 P.2d] as follows:
8. The statute at issue in Louisiana-Pacific, RCW 70.105D.080, provides that a "prevailing party ... shall recover its reasonable attorneys' fees and costs," while RCW 64.40.020(2) provides that "[t]he prevailing party ... may be entitled to reasonable costs and attorney's fees." (Emphasis added).
3. Existing footnotes 8 through 15 are renumbered 9 through 16, [Does not effect remaining footnote in 934 P.2d], respectively.
4. In the fifth line from the top of page 719, [First column, third line from bottom of text of page 1185 of 934 P.2d] the words "asserts, alternatively," are deleted and the words "also asserts" are inserted in their place.
Dated this 31st day of July, 1997.
/s/ Durham
/s/ Chief Justice
APPROVED:
/s/ Dolliver, J.
/s/ Smith, J.
/s/ Guy, J.
/s/ Madsen, J.
/s/ Alexander, J.
/s/ Talmadge, J.
/s/ Johnson, J.