On April 9, 2015, I mediated a subrogation action on behalf of my insurer client, Mapfre USA Corporation, for recovery of property damages arising from a natural gas explosion in the Pinehurst neighborhood of Seattle, Washington in 2011. The mediation session, which lasted twelve hours involving multiple actions, parties, and over a millions dollars in claimed damages, was unsuccessful but provided a springboard for settling the majority of the plaintiffs’ consolidated cases a few weeks later. At the start of my client’s case, we had to file a government claim against the City of Seattle after the applicable two-year statute of limitations (for action(s) concerning negligent damage to real property) had already run. Nonetheless, I was able to plead in Mapfre’s third-party action against defendants Puget Sound Power, Inc. (“PSE”) and City of Seattle/Seattle City Light that the defense should not bar the action because the causal nature of the explosion (involving both a downed power line and underground natural case pipelines) was so complex that the completion and publishing of an investigation report by the Washington Utilities and Transportation Commission ("WUTC") was a perquisite to any requirement to bring the action. The argument succeeded as we were able to defeat a motion for summary judgment and later build a solid case of negligence against both the City and PSE allowing us to prevail and recover all claimed damages in the case:
The statute of limitations is an affirmative defense. The party asserting the defense bears the burden of proving facts that establish it. Washington courts have long applied a discovery rule to toll the date of accrual for a cause of action when a delay occurs between the time of an injury and the plaintiff's discovery of that injury (damages). The discovery rule is also extended to plaintiff(s) when there is a delay in the discovery of factual evidence (due to no fault of their own) necessary to support other elements of a cause of action such as causation of injuries or damages. Notably, a discovery rule has been applied in negligence actions when the injury is due to or caused by professional malpractice, occupational diseases or conditions that are latent in nature, a failure of self-reporting requirement(s) and/or a concealment of information by defendant(s). The discovery rule has been applied to a variety of other causes of action especially those involving latent problems or when a connection between a harm and a cause are technical or complex such as actions alleging products liability; construction defect; actions seeking penalties for the illegal discharge of pollutants; nuisance, strict liability (abnormally dangerous activity); negligent injury to real property; breach of implied warranty of habitability; as well as professional malfeasance and/or related breaches of fiduciary duty arising in various settings. The discovery rule tolls the date of accrual "until the plaintiff knows or, through the exercise of due diligence, should have known all the facts necessary to establish the element(s) of his or her legal claim (i.e., duty, breach, causation and damages)." The point at which the plaintiff should have acquired such knowledge is a question for the trier of fact.
The discovery rule applied to toll the running of the two-year statute of limitations (Revised Code of Washington 4.16.130) applicable to Mapfre’s negligence claim for largely three reasons. First, Mapfre had no access to the physical evidence supporting causation of the explosion (e.g., the physical phenomena and result of electrical arcing/energy contacting underground metal piping) because it was latent (underground) and was subject of utility provider record(s)/recordings to which Mapfre had no access or understanding. (WUTC Report). Second, Mapfre had no knowledge or information concerning the manner PSE mapped and inspected its utility system without access to the same utility provider records and, in any event, it had no means to interpret the data. Third, the subject matter of this case has been actively and almost continuously litigated since the September 2011 incident hence the parties’ claims are anything but stale. In determining whether to apply the discovery rule, the possibility of stale claims must be balanced against the unfairness of precluding justified causes of action. U.S. Oil & Refining Co. v. Dept. of Ecology, 96 Wn.2d 85, 93 (1981). That balancing test has dictated the application of the rule where the plaintiff lacks the means or ability to ascertain that a wrong has been committed (Id. at 93 – 94) and it overwhelming support application of the rule in the instant case.
Counsel for the City argued that various news report(s) somehow offered Mapfre all the “essential facts” supporting its cause of action but counsel’s argument defies explanation or support in law or by the material facts and evidence in the case. Fundamentally, the news reports cited by the City on their face, however, offered no reliable factual evidence of causation but only speculation and conflicting theories warning Mapfre to wait for a governmental process designed to determine cause and responsibility for the damage to conclude. Further, the cited news reports while noting possible connection(s) between the provision of electricity, natural gas and the explosion provided nothing to show or resolve issues of fact concerning whether Mapfre could have reasonably acted upon them to inquire and discover let alone support a cause of action. The overwhelming evidence supported the conclusion that Mapfre could not and that the media reports provided little assistance. As explained by the WUTC Report, the evidence/facts supporting causation of damage or injury (e.g., the arc of electricity energizing PSE’s largely underground gas distribution system; the electricity’s creation of holes in gas piping at each of these location(s) where the electricity grounded; other metal piping that served to convey and ground the electricity; gas leak reports and special surveys of the underground system mapped by PSE; PSE’s failure to map and survey critical underground service pipes in the Ingham’s private drive that served three homes as well as the gas main under the Ingham’s private drive, as well as other critical evidence) all involved latent problems and defects, as well as complex operational data possessed by the utility providers to which Mapfre had no efficient or independent access.
Mapfre argued that a related and supporting reason why a discovery rule should apply to Mapfre’s case was the nature of the relationship between the public utility provider-defendant(s) and their customers (including plaintiffs’ subrogees). According to Seattle City Light Department’s 2012 Annual Report, as a municipally owned public power system, Seattle City Light is governed by elected Seattle officials and primarily supported by customer revenues and surplus power sales. According to its Mission Statement’: “Seattle City Light is dedicated to exceeding its customers’ expectations in producing and delivering environmentally responsible, safe, low cost and reliable power.” Similarly, PSE’s company website promises its customers that “PSE engineers and construction crews adhere to strict federal and state safety requirements governing pipeline design, materials and construction” and that “safety is [PSE’s] top priority when it comes to designing, constructing, operating and maintaining our natural gas system. [PSE] monitor(s) the system every day of the year, 24 hours a day.” The utility-provider defendants’ promises to provide their products applying professional expertise and a vigilance for customer safety created a fiduciary relationship and corresponding duties of the utility providers to self-report and advise customers about malfeasance causing damage to customer property and/or or upon which claim(s) for reimbursement might be based. The WUTC investigation and related laws serve to enforce such duties. For example, the City and PSE had statutory obligation(s) as an “electrical” and/or “public service company” (RCW 80.04.010; RCW 80.20.010) to cooperate with WUTC investigation(s) and disclose information as needed to determine acts and omissions causing damage. See also, RCW 80.04.015 (Conduct of business subject to regulation – Determination by commission); RCW 80.04.440 (Companies liable for damages); RCW 80.28.010 (Gas pipelines – Safety – Commission’s duties); RCW 81.88.080 (Pipeline mapping system – Commission specifications and evaluations) and all other statutory/code provisions cited in the WUTC Report and related documents. Nonetheless and despite these duties, it should be no surprise that defendant(s) did not promptly self-report acts and omissions proving causation directly to plaintiff(s) but rather their disclosures came only after a protracted governmental investigation lasting more than one year and in the context of a WUTC report, complaint and settlement agreement.
As explained in U.S. Oil & Refining Co. v. Dept. of Ecology, 96 Wn.2d 85 (1981) where the Washington Supreme Court applied a discovery rule to an action involving penalties for the illegal discharge of pollutants: “[w]here self-reporting is involved, the probability increases that the plaintiff will be unaware of any cause of action, for the defendant has an incentive not to report it. Like the other cases which have employed the rule, this is a case where if the rule were not applied the plaintiff would be denied a meaningful opportunity to bring a suit. Like those plaintiffs, this plaintiff lacks the means and resources to detect wrongs within the applicable limitation period. Not applying the rule in this case would penalize the plaintiff and reward the clever defendant. Neither the purpose for statutes of limitation nor justice is served when the statute runs while the information concerning the injury is in the defendant's hands.” Id. at 93.
Similarly, before the WUTC report and findings were issued, Mapfre plainly had no reasonable means or resources to discover that the City’s provision of electricity caused holes and gas leaks in underground gas line(s) or in appliances within the Ingham residence thereby causing damaging explosion(s). Further, Mapfre had no means of discovering (prior to the issuance of the WUTC Report) that PSE failed to inspect and insure the integrity of its gas line system (by proper mapping or otherwise). Based upon Mapfre's arguments, the Court denied the City's motion for summary judgment (which was joined by PSE) and delayed accrual of Mapfre’s cause(s) of action allowing Mapfre to prevail in the case.
 On or about September 26, 2011, a natural gas explosion and fire ignited destroying a house located at 12312 5th Avenue NE owned by David and Hong Phung Ingham and located in the Pinehurst neighborhood of Seattle, Washington. The explosion(s), in turn, damaged several neighboring homes including a home located at 527 N.E. 124th Street, Seattle, Washington owned by Abdull Khamis and insured by third-party plaintiff Mapfre. (Mapfre Third-party Complaint).
The fuel source of the explosion and fire was natural gas. (Mapfre Third-party Complaint and Ex. “1” thereto entitled WUTC Commission Staff Investigation Report, Docket 111723, December 26, 2012 hereafter referred to “WUTC Report”.) Gas leaked because the day before the explosion, September 25, 2011, a nearby high voltage power line owned by defendant Seattle City Light fell to the ground and energized PSE’s gas system in the area. The electricity arced from PSE’s gas service line at the Ingham’s’ house to the Ingham’s’ sewer pipe (the sewer pipe acted as a ground), thereby creating a hole in the PSE gas service pipe, from which gas leaked. The gas migrated to the crawl space under the Ingham’s’ house, entered the living space, and was ignited, causing the explosion and fire. (WUTC Report). Alternatively or in combination, the electrical current running through the gas pipe continued to trespass into the Ingham’s’ house causing another gas leak in the Ingham’s’ fuel line, furnace, or other facilities. (WUTC Report).
On September 25, 2011, the day before the explosion, PSE received separate calls indicating there were three separate leaks in PSE’s gas system in the Pinehurst neighborhood. (WUTC Report). Defendant Hong Ingham reportedly smelled gas that day at or near her home but after David Ingham investigated her report and did not smell gas himself the Ingham’s did not report it to PSE. (WUTC Report). PSE responded to the calls it did receive and addressed the three gas leaks. (WUTC Report). PSE recognized that the leaks were caused by electrical arcing, which is unusual. (WUTC Report). In view of the unusual circumstances, PSE initiated two special gas leak surveys in the Pinehurst area that same day. (WUTC Report).
The first PSE special leak survey (‘first special leak survey’) began at approximately 5:30 p.m. on September 25, 2011. (WUTC Report). This first special leak survey was for PSE’s wrapped steel gas piping, and it included a walking leak survey. (WUTC Report). The area of the first special leak survey was 5th Avenue N.E. to 12th Avenue N.E. and N.E. 115th Street to N.E. 130th Street. (WUTC Report). Included within this area were the Ingham’s’ house, the two houses neighboring the Ingham’s’ house and the paved private drive to these three houses. (WUTC Report).
In the first special leak survey, PSE did not leak survey the PSE wrapped steel main under the private drive to these three houses or the PSE wrapped steel services serving these three houses. (WUTC Report).
The second PSE special leak survey (‘second special leak survey’) started at approximately 9:30 p.m. on September 25, 2011. (WUTC Report). This was a mobile leak survey using gas detection equipment mounted to motor vehicles. (WUTC Report). PSE identified the scope of the facilities to be surveyed as PSE gas piping located in the public rights-of-way accessible to a vehicle. (WUTC Report). The area of the second special leak survey was 5th Avenue N.E. to 15th Avenue N.E. and N.E. 105th Street to N.E. 130th Street. (WUTC Report). Included within this area were the Ingham’s’ house, the two houses neighboring the Ingham’s’ house and the paved private drive to these three houses. (WUTC Report). The paved private drive is accessible to a vehicle. (WUTC Report).
In the second special leak survey, PSE did not leak survey the PSE wrapped steel gas main under the private drive to the three houses. (WUTC Report).
In the second special leak survey, PSE did not leak survey all gas service lines located outside the public right of way (or inaccessible to vehicles within the public right of way). (WUTC Report). PSE only leak surveyed a service line of the gas detection equipment on the vehicle detected gas. (WUTC Report). In that circumstance, PSE would conduct a leak survey only of service lines around that specific location to the extent necessary to resolve that specific of gas detection. (WUTC Report).
In or about October 2011, the Washington State Utilities and Transportation Commission (“UTC”) with exclusive statutory powers, duties, and jurisdiction under Revised Code of Washington Chapter 81.88 to investigate the subject explosion began its inquires and study of what caused the explosion and resulting damage, as well as to identify any violation(s) of safety standards and/or law pertaining to the provision of gas pipeline facilities at issue. (WUTC Report).
On or about December 26, 2012, after more than a year of investigation by safety engineer(s) and other specialized/professional staff members, the UTC issued its report and findings. (WUTC Report and “WUTC Complaint”, Ex. “2” to Mapfre Third-party Complaint).
 Brown v. ProWest Transp. Ltd., 76 Wn.App. 412, 419 (1994) citing Haslund v. City of Seattle, 86 Wn.2d 607, 620 (1976).
 In re Estates of Hibbard, 118 Wn.2d 737, 744-50 (1992).
 See e.g., North Coast Air Servs., Ltd. v. Grumman Corp., 111 Wn.2d 315, 319 (1988).
 See e.g., 1000 Virginia Ltd. P'ship v. Vertecs Corp., 158 Wn.2d 566 (2004).
 See e.g., U.S. Oil & Refining Co. v. Department of Ecology, 96 Wn.2d 85 (1981).
 See e.g., Mayer v. City of Seattle, 102 Wn.App. 66, 76-77 (2000).
 See e.g., Stuart v. Coldwell Banker Commercial Group, Inc., 109 Wn.2d 406 (1987).
 See e.g., Gillespie v. Seattle-First Nat. Bank, 70 Wn.App. 150 (1993).
 In re Estates of Hibbard, 118 Wn.2d 737, 744-50 (1992); Mayer v. City of Seattle, 102 Wn.App. 66, 76-77 (2000) and cases cited therein.
 This evidence proves, among other things, that PSE thwarted its own identification of a fix that might have avoided or mitigated damage caused by the explosion but Mapfre had no way of gathering these facts without access to and knowledge of PSE’s systems, records, as well as of the standards that apply to inspections and self-assessment and reporting. Instead, all of this latent and complex evidence was exclusively controlled by the utility providers themselves or given their cooperation gathered and analyzed by government investigators. (See Mapfre Complaint and Exhibits “1” and “2” thereto; Declaration of Madelyn C. Burden; Declaration of Eric Johnson and Exhibits “1” and “2” thereto).
 A fiduciary relationship arises in fact when there is “something in the particular circumstances which approximates a business agency, a professional relationship, or *** something which itself impels or induces the trusting party to relax the care and vigilance which he otherwise should, and ordinarily would, exercise.” Hood v. Cline, 35 Wn.2d 192, 200, 212 P.2d 110 (1949) (quoting Collins v. Nelson, 193 Wash. 334, 345, 75 P.2d 570 (1938). "Superior knowledge and assumption of the role of adviser may contribute to the establishment of a fiduciary relationship." Liebergesell v. Evans, 93 Wn.2d 881, 891 (1980). See also, Restatement Contracts § 472 Comment C (any person whose relation with another is such that the latter justifiably expects his welfare to be cared for by the former can create a fiduciary relationship).