LEACH, J.
¶ 1 This is the second appeal in this case.
¶ 2 Because Serock presented no evidence supporting its offset claim, the trial court properly denied Serock's claim a second time. Substantial evidence supports the trial court's calculation of Ledcor's damages. Finally, because the parties' contract authorizes reasonable fees and costs to the prevailing party and Ledcor, the prevailing party, supported its fee request with unrebutted evidence, the trial court did not err in awarding fees on remand. We therefore affirm.
¶ 3 This is a construction defects case involving a 25-building condominium complex in Bellevue.
¶ 4 All subcontractor-defendants except Serock settled with Ledcor before trial.
¶ 5 The court also awarded a pro rata share of Ledcor's defense costs incurred before its tender of defense to Serock (the "pre-tender" period).
¶ 6 Serock appealed to this court. In a published opinion, Harmony at Madrona
¶ 7 Serock filed a motion for reconsideration of the denial of its offset claim. In the same motion, Serock requested instructions to the trial court to reopen discovery on that issue. We denied the motion in its entirety.
¶ 8 On remand, Ledcor moved for an expedited trial date with a limited case schedule without additional discovery. Serock did not oppose an expedited trial but requested limited discovery on the issue of Ledcor's prior settlements with other subcontractors. Ledcor opposed Serock's request to reopen discovery on the grounds that Harmony fully resolved Serock's offset claim. The trial court granted Ledcor's motion. Serock has not appealed this decision.
¶ 9 Ledcor then moved for summary judgment, arguing the contract damages reversed on appeal should be awarded as indemnity damages. Ledcor also reasserted its claim for pre-tender attorney fees and costs and requested an additur for expenses accrued in bringing its summary judgment motion and in responding to any motion that Serock might file. Serock did not oppose indemnity liability for the remaining seven buildings. Instead, Serock reasserted its entitlement to an offset and alleged that Ledcor failed to establish a reasonable basis for determining Serock's share of the pre-tender defense expenses. However, Serock presented no evidence to support its offset claim.
¶ 10 The trial court granted Ledcor's motion in part, awarding Ledcor $127,500.00 in indemnity damages for the seven buildings and denying Serock's offset claim. It also granted Ledcor's request for fees and costs incurred on remand. But because Ledcor failed to establish a viable method for segregating Serock's share of pre-tender attorney fees and costs, the court denied Ledcor's pre-tender fee request. Final judgment totaled $430,153.96.
¶ 11 Serock appeals.
¶ 12 This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court.
¶ 13 Serock contends the trial court erred by denying it an offset against the indemnity damages awarded Ledcor on remand. Specifically, Serock claims that Ledcor had the burden of proving that its settlement with another subcontractor included recovery for repairs other than those required to correct Serock's defective work. Serock further claims that our opinion in Ledcor Industries (USA), Inc. v. Mutual of
¶ 14 Generally the party claiming an offset has the burden of proving this claim.
¶ 15 Serock attempts to distinguish the cases cited in the previous paragraph on the basis that they all involve insurance coverage but offers no persuasive basis for this asserted distinction. Serock also contends that Eagle Point Condominium Owners Ass'n v. Coy
¶ 16 In Eagle Point, the homeowners' association asserted the same claims against the developer, Coy, and the contractor, Brixx.
¶ 17 Serock also contends that our opinion in Ledcor Industries (USA), Inc. v. Mutual of Enumclaw Insurance Co. provides sufficient evidence to meet its burden of proof. It cites no authority for the proposition that our opinion in a different case constitutes evidence in this case. However, we do not need to decide this question because our opinion, if evidence, would not satisfy Serock's burden of proof. Our opinion contains no information about the terms of the settlement agreement, the scope of subcontractor's work, or what parts of that work were claimed to be defective. Without
¶ 18 Next, Serock asserts the trial court erred as a matter of law by not discounting the indemnity award by 25 percent to account for costs of repairing metal flashing not within its scope of work, in light of this court's decision in Harmony approving a damage calculation that included the 25 percent discount. Again, we disagree.
¶ 19 Evidence sufficiently proves damages when it "`affords a reasonable basis for estimating the loss and does not subject the trier of fact to mere speculation or conjecture.'"
¶ 20 The trial court, acting as the fact finder, had discretion on remand to use, modify, or completely disregard the calculation approved in Harmony when calculating indemnity damages for the seven remaining buildings, so long as competent evidence in the record supported its decision. Ample evidence provided a reasonable basis for estimating Ledcor's loss at $127,500. The trial court found the total cost to repair and replace defects connected to Serock's work totaled $255,000. Finding of fact 14, which Serock does not dispute, states,
Using $255,000 as the base, the court divided this number in half, totaling $127,500. The record demonstrates that the court did this to account for the four buildings for which Ledcor already recovered indemnity damages and the two buildings on which Serock performed no work. Because this includes "all of the defective work performed by Serock and damages caused by Serock," competent evidence in the record supports the indemnity award.
¶ 21 Serock suggests it should not be held liable for the 25 percent of repair costs representing the cost of repairing defective metal flashing outside its scope of work and defective without regard to Serock's work. But indemnity is a distinct and separate equitable cause of action, requiring "`full reimbursement and transfers liability from the one who has been compelled to pay damages to another who should bear the entire loss.'"
¶ 23 We review a party's entitlement to attorney fees as an issue of law de novo.
¶ 24 Ledcor substantially prevailed on its summary judgment motion when the court awarded $127,500.00 in indemnity damages for the seven buildings for which breach of contract damages was reversed. The court also denied Serock an offset. And although the trial court denied Ledcor's request for pre-tender fees, Ledcor obtained a judgment of $430,153.96 overall, which included indemnity damages for all 11 buildings, fees and costs awarded by the trial court and affirmed on appeal, and postjudgment interest accruing at a rate of 12 percent per annum. On remand, Ledcor improved its position by $127,500.00. Ledcor met the definition of a prevailing or substantially prevailing party.
¶ 25 We next address Serock's assertion that Ledcor expended an excessive amount of attorney time on its summary judgment motion on remand. We review the reasonableness of the amount of fees awarded under an abuse of discretion standard.
¶ 26 Ledcor asks for fees and costs on appeal. The contract authorizes reasonable fees and costs to prevailing parties, and Ledcor is a prevailing party in this appeal. Because Ledcor's fee request complies with the requirements of RAP 18.1, we grant Ledcor's request subject to Ledcor's compliance with RAP 14.4.
¶ 27 Uncontroverted evidence in the record supports the trial court's award of indemnity damages. Serock failed to present any evidence supporting its claimed offset. And finally, the trial court did not abuse is discretion in awarding Ledcor an additur for fees and costs incurred on remand. We affirm.
WE CONCUR: DWYER, C.J. and COX, J.