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BIAW celebrates state Supreme Court victory for contractor in local project

September 7, 2021

Chalk one up for the good guys! On Thursday, Sept. 2, the Washington State Supreme Court ruled in favor of a contractor sued for defects despite acting in accordance with plans and specifications set forth in their contract in a King County development dispute.

The case stemmed from a dispute where Lake Hills Investments LLC sued AP Rushforth (AP) for breach of contract. Lake Hills said, among other things, that AP’s work on the Lake Hills Village project was defective.

A dispute over defects

Lake Hills hired AP to build pieces of Lake Hills Village, a mixed-use property consisting of several buildings: a King County library branch, two retail-office/residential buildings, three commercial buildings, townhouses, an elevator tower and a pedestrian bridge.

Facing delays and some defects, Lake Hills sued AP. AP countered, arguing in part that the defects were in accordance with the specifications and plans provided in the contract. The lower court ultimately ruled in Lake Hills’ favor in a dispute over jury instructions regarding liability.

BIAW joins others in support of contractor

BIAW joined several other groups including the State of Washington, the Washington State Association of Municipal Attorneys, the American Council of Engineering Companies of Washington & AIA Washington Council, Associated General Contractors of Washington et al., and Surety and Fidelity Association of America et al. in filing briefs supporting the contractor.

“Fairness based on control”

BIAW’s brief argued the court should apply the Spearin defective design defense and overturn the lower court’s decision. To paraphrase Washington Supreme Court Justice Barbara Madsen’s unanimous decision in this case, the defective design defense is “fairness based on control.”  If the owner provides a defective design, then the contractor should not be responsible for the damage caused by following the design because he was not the source of the defects.

BIAW thanks General Counsel Jackson Maynard and our legal team of Brooke Frickleton and Nikky Castillo for helping to ensure contractors (including homebuilders) will be able to continue to use this valuable defense in our state.

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