The Subrogation Strategist

In Tadych v. Noble Ridge Constr., Inc., No. 100049-9, 2022 Wash. LEXIS 545, the Supreme Court of Washington (Supreme Court) considered whether the lower court erred in enforcing a one-year accelerated limitations period clause in a construction contract. The Supreme Court considered the extent to which the provision hindered the plaintiffs’ statutory rights - as set forth in Wash. Rev. Code § 4.16.310 - which provides homeowners with a six-year repose period for construction defect claims.  The court found that the contractual provision’s shortening of the time period from six years to one year was a gross deprivation of the plaintiffs’ statutory rights and was unfairly one-sided in favor of the defendant.  As such, the court held that the provision was substantively unconscionable and, thus, unenforceable.Continue Reading

Statutes of repose are generally meant to be absolutes, providing clarity to potential defendants such as contractors. However, in limited scenarios, some states have allowed for exceptions to the defense. For instance, fraud is one potential exception that has been recognized in several jurisdictions and is often raised by parties on the basis of public policy. In Puget Sound Energy, Inc. v. Pilchuck Contractors, Inc., No. 80162-7-1, 2020 Wash. App. LEXIS 2862 (unpublished), the Court of Appeals of Washington determined whether it would allow a fraud exception to its statute of repose for construction activity. The court upheld the trial court’s holding that the statute of repose barred the appellant’s claims, declining to entertain a fraud exception.Continue Reading

In Edifice Constr. Co., Inc. v. Arrow Insulation, Inc., No. 79407-8-1, 2020 Wash App. LEXIS 359, the Court of Appeals of Washington considered whether subcontractors could be bound by the arbitration clause in a contract between an owner and a general contractor. In determining that the subcontractors were not bound by the arbitration clause in the prime contract, the court found that the general contractor failed to meet its burden of showing that the subcontractors were on notice of the specific terms of the prime contract.Continue Reading

Often times, properly analyzing when a statute of limitations begins to run – not just how long it runs – is crucial to timely pleading. In Dep’t of Transp. v. Seattle Tunnel Partners, 2019 Wash.App. LEXIS 281 (Was. Ct. App. Feb. 5, 2019), Division Two of the Court of Appeals of Washington addressed when the discovery rule starts the statute of limitations clock on a negligence cause of action. The court held that the statute of limitations begins to run when the plaintiff knows that the factual elements of the claim against the defendant exist. The clock starts to run even if the plaintiff wants to investigate the possibility of other contributing factors or the defendant identifies opposing viewpoints on the theory of the claim.Continue Reading

By: Edward A. Jaeger, Jr. and William L. Doerler

In Donatelli v. D.R. Strong Consulting Engineers, Inc., 312 P.3d 620 (Wash. 2013), the Supreme Court of Washington, in a 5-4 decision, addressed the application of the economic loss rule – more properly considered the independent duty doctrine – in a case where the plaintiffs alleged that the defendant committed professional malpractice. Although the court concluded that the plaintiffs’ negligence and negligent misrepresentation claims were not barred by the economic loss rule, the analysis adopted by the Supreme Court ... Continue Reading