Atherton Condominium Apartment-Owners Ass'n Bd. of Directors v. Blume Development Co., APARTMENT-OWNERS
| Court | United States State Supreme Court of Washington |
| Writing for the Court | DURHAM; CALLOW |
| Citation | 799 P.2d 250,115 Wn.2d 506 |
| Parties | ATHERTON CONDOMINIUMASSOCIATION BOARD OF DIRECTORS, Petitioners, v. BLUME DEVELOPMENT COMPANY, a partnership; Bill Blume Limited, a corporation; Thomas F. Carey, M.D., Inc. P.S., a Washington corporation; P.R.A. Investments, Inc., a Washington corporation; C.M. Arnim Investments, Inc., a corporation; Bill Blume and Jane Doe Blume, husband and wife and their marital community; P. Arnim and Jane Doe Arnim, husband and wife and their marital community; Donald R. Westlin and Jane Doe Westlin, husband and wife and their marital community; City of Lynnwood, a municipal corporation; John Farrens and Jane Doe Farrens, husband and wife and their marital community; Barbara Collier and John Doe Collier, husband and wife and their marital community, Respondents. En Banc |
| Decision Date | 01 November 1990 |
| Docket Number | APARTMENT-OWNERS,No. 56677-1 |
Page 506
DIRECTORS, Petitioners,
v.
BLUME DEVELOPMENT COMPANY, a partnership; Bill Blume
Limited, a corporation; Thomas F. Carey, M.D., Inc. P.S., a
Washington corporation; P.R.A. Investments, Inc., a
Washington corporation; C.M. Arnim Investments, Inc., a
corporation; Bill Blume and Jane Doe Blume, husband and
wife and their marital community; P. Arnim and Jane Doe
Arnim, husband and wife and their marital community; Donald
R. Westlin and Jane Doe Westlin, husband and wife and their
marital community; City of Lynnwood, a municipal
corporation; John Farrens and Jane Doe Farrens, husband and
wife and their marital community; Barbara Collier and John
Doe Collier, husband and wife and their marital community,
Respondents.
[799 P.2d 253]
Page 509
Talmadge, Friedman & Cutler, Philip A. Talmadge, Seattle, Bo Barker, P.S., Bo Barker, Bellevue, for petitioners.Page 510
Anderson, Hunter Law Firm, H. Scott Holte, Jeffrey H. Capeloto, Everett, Powell & Morris, P.S. Todd R. Startzel, Spokane, for respondent Blume Development Co.
John T. Arrabito, P.C., John T. Arrabito, Lynnwood, for respondents Westlin.
Martin, Bischoff, Templeton, Ericsson & Langslet, David P. Templeton, Stephanie L. Striffler, Michael G. Harting, Portland, Or., for respondents City of Lynnwood, et al.
Bryan P. Harnetiaux, Winston & Cashatt, Robert H. Whaley, Spokane, amici curiae for petitioner on Behalf of Washington State Trial Lawyers Ass'n.
Bean, Gentry & Rathbone, Fred D. Gentry, Olympia, amici curiae for petitioner on Behalf of Washington Ass'n of Fire Chiefs.
[799 P.2d 254] MacDonald, Hoague & Bayless, Katrin Frank, Seattle, amici curiae for petitioner on Behalf of the Seattle Fire Fighters Union.
Ron Meyers, Gig Harbor, amici curiae for petitioner on Behalf of the Tacoma Professional Fire Fighters Union.
James L. Strichartz, Seattle, amici curiae for petitioner on Behalf of the Community Associations Institute.
Perey, Langley, Ron Perey, Seattle, amici curiae for petitioner on Behalf of Gordon F. Vickery.
Law Office of Robert Gould, Robert B. Gould, Seattle, amici curiae for petitioner on Behalf of Abraham B. Bergman.
Law Office of J. Richard Aramburu, J. Richard Aramburu, Jeffrey M. Eustis, Seattle, amici curiae for petitioner on Behalf of "Rebound".
George, Hull & Porter, P.S., Jeffrey B. Mahan, Seattle, amicus curiae for respondents on Behalf of Washington Defense Trial Lawyers.
DURHAM, Justice.
Atherton Condominium Apartment-Owners Association Board of Directors (Owners) appeal from orders of summary judgment dismissing virtually all of their construction defect claims. Blume Development Company and its partners (Blume) 1 cross-appeal, seeking dismissal of Owners' remaining claims. We affirm in part and reverse in part.
Page 511
Owners represent condominium owners in the Atherton complex (Atherton), which is located in the City of Lynnwood. It consists of two 3-story buildings, each of which contains 10 condominium units. In each building, there are four units on the first floor, and six townhouse units which occupy the second and third floors. Blume was the original owner, developer, construction contractor, and vendor of the Atherton condominiums. Donald R. Westlin was hired by Blume to be the project design architect for Atherton.
In November 1978, pursuant to Uniform Building Code (UBC) § 301(c), Westlin submitted two identical sets of architectural plans for the Atherton project to the City of Lynnwood (Lynnwood) for plan review and issuance of building permits. The plans were reviewed by John Farrens, a registered licensed architect and head of the Lynnwood Building Department. At that time, the applicable Lynnwood building code was the 1973 edition of the UBC.
On January 12, 1979, after reviewing the Atherton plans and finding some UBC violations, Farrens responded with a plan correction sheet. The sheet enumerated 17 specific items which Lynnwood either wanted more fully addressed or changed before it would issue any permits. Most of the changes related to UBC fire resistivity standards.
On January 17, 1979, in response to the plan review, Westlin submitted revised architectural plans. Subject to further changes which he noted on the revised plans, Farrens approved the revised plans on February 21, 1979. Upon receipt of the appropriate permit fees, Lynnwood issued the applicable UBC building permits. During the construction process, the Atherton project was regularly inspected by Lynnwood building officials, usually Barbara Collier.
The construction of building one was substantially completed in November 1979. The building was ultimately approved as constructed and Farrens issued a certificate of occupancy. Construction of building two was substantially
Page 512
completed in mid-1980. The building was approved as constructed and Farrens issued a certificate of occupancy. The certificates of occupancy certified that Atherton complied with all applicable provisions of the UBC. On June 16, 1981, Blume turned the management of Atherton over to the Homeowners Association.In 1982, portions of the exterior walls of the Atherton buildings, originally believed [799 P.2d 255] to be stucco, began to crack and fall off. Owners contacted Blume and he completed repairs without charge. Further problems were encountered with the exterior in 1984 and 1985, and Blume was again asked to perform repairs. This time, however, Blume refused. Owners had the exterior repaired at their own expense.
Owners learned that the product which Blume had originally applied to the exterior walls was not stucco, as Owners believed. Rather, Blume had used Kolor Krete, an allegedly inferior stucco substitute, which could be expected to deteriorate further. 2 The use of Kolor Krete was not authorized in the Atherton plans and does not satisfy the UBC 1-hour fire resistivity standard. Owners also learned that Atherton contained several other construction defects.
Specifically, Owners alleged that the following defects also violate the 1973 UBC fire resistivity standards 3 and profoundly compromise the safety of Atherton: omission of 1/2 inch plywood underlayment on the third floor, the absence of any gypsum on the inner surface of the mansard walls, a single layer roof/ceiling assembly, carport ceilings which do not satisfy the UBC 1-hour fire resistive construction standard, inadequate exits on the third floor, and unsafe prefabricated fireplaces which are not those depicted on the plans.
Page 513
On January 3, 1986, pursuant to RCW 64.32.240, Owners filed suit against Blume, Westlin, and the City of Lynnwood and employees of its building department. Owners sought damages for the cost to repair the alleged construction defects. With respect to Blume, Owners alleged that Blume failed to construct Atherton in accordance with the approved plans and the UBC fire resistivity standards. Accordingly, they brought an action for negligence, negligence per se, nuisance, breach of the implied warranty of habitability, and fraudulent concealment of defects. With respect to Westlin, Owners alleged that he failed to design Atherton in compliance with the UBC and brought an action against him for negligent design. Finally, Owners alleged that Lynnwood and employees Farrens and Collier failed to require that Atherton be designed and constructed in compliance with the UBC.
On September 2, 1987, Lynnwood moved for summary judgment on the grounds that under the public duty doctrine, Lynnwood and its employees owed no duty to Owners. In addition, Lynnwood argued that Owners' claim was time barred by the statute of limitation. On November 30, 1987, Judge Bibb entered an order granting summary judgment dismissing all claims against Lynnwood and its employees pursuant to the public duty doctrine. The order, however, denied Lynnwood's motion to dismiss the case pursuant to the statute of limitation and the statute of repose. 4
On February 5, 1988, Owners filed an amended motion for partial summary judgment against defendants Blume and Westlin, requesting the court to determine, as a matter of law, that the mansard wall and the floor/ceiling assembly
Page 514
did not satisfy the UBC fire resistivity standard. On February 8, 1988, Judge Knight granted partial summary judgment in favor of defendant Westlin determining that Westlin, as the design architect, had no liability as to the issue of 1-hour fire resistivity.On February 9, 1988, defendant Blume filed a motion for summary judgment of dismissal of Owners' amended complaint with respect to all of Owners' theories of recovery, or in the alternative, partial summary judgment declaring that Owners have not sustained any damages for alleged noncompliance with the UBC and that Owners' claims are time barred by the applicable statute of limitation. Defendant[799 P.2d 256] Westlin later joined in Blume's motion for summary judgment.
On February 19 and 22, 1988, Judge Knight heard oral argument on Blume's motion for summary judgment. Judge Knight concluded that even if Atherton was not constructed in compliance with UBC fire resistivity standards, Owners did not have an actionable claim against Blume or Westlin. Accordingly, Judge Knight orally granted the motion for summary judgment in favor of Blume and Westlin dismissing all of Owners' claims except for the three express warranty claims of Pamela Foster-Macri, Fern Martinson, and Glenn Ortloff. In addition, Judge Knight denied a motion on behalf of the Owners to strike expert testimony concerning interpretation of the UBC and a motion for summary judgment against defendants Blume and Westlin concerning fire resistivity of the mansard wall and the third floor.
On March 16, 1988, following the trial court's decision granting the other defendants' motions for summary judgment, Lynnwood, pursuant to CR...
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