First Church of Christ Scientist v. City of Seattle
| Decision Date | 31 August 1998 |
| Docket Number | 40790-2-I,Nos. 40592-6-,s. 40592-6- |
| Citation | 92 Wn.App. 229,964 P.2d 374 |
| Court | Washington Court of Appeals |
| Parties | FIRST CHURCH OF CHRIST SCIENTIST, Appellant, v. CITY OF SEATTLE, et al., a municipal corporation, Respondents. |
Paul S. Wittenbrock, Denny E. Anderson, Assistant City Attorney, Seattle, for appellant.
Charles C. Huber, Linda B. Clapham, Lane Powell Spears Lubersky, Richard Robinson, Kathleen F. Cochran, Aaron Dean, Lee Smart Cook Martin & Patterson, Seattle, for respondents.
Washington continues to recognize the doctrine of completion and acceptance, which operates as a defense to contractor liability to third parties when the contractor's work is completed and accepted by the owner. In this case, the alleged act of negligence on the part of the contractor was not part of the contract work, but was instead a matter collateral to the contract work. Under these circumstances, we hold that the doctrine does not apply. Instead, the contractor's liability to third parties is based on established negligence principles.
The rule of nonliability created by the doctrine therefore does not apply to relieve Baugh Construction and Deeny Construction from liability in First Church of Christ Scientist's (the Church) negligence case against them and the City of Seattle (the City). Because the alleged act of negligence against the contractors involved matters collateral to the contract work, applying the doctrine under the circumstances presented by this case would expand the scope of the doctrine. We decline to do so, and hold that the trial court erred by granting summary judgment in favor of Baugh and Deeny. 1
We also address the City's appeal of summary judgment dismissal of its indemnity claim against Baugh and Group Health, which has been consolidated with the Church's appeal. We hold that the City is not seeking indemnification for its sole negligence because, in its complaint, the Church alleged that Deeny, Baugh and the City were concurrently negligent. The City's indemnity agreement with Baugh/Group Health complies with RCW 4.24.115 and is enforceable. The trial court therefore erred by granting summary judgment and dismissing the City's claims against Baugh/ Group Health for breach of their duty to defend pursuant to the indemnity agreement.
We reverse both summary judgment orders, and remand to the trial court for trial of (1) the Church's negligence claims against the contractors, and (2) the City's indemnity claims against Baugh/Group Health for breach of their duty to defend.
Group Health hired Baugh as the general contractor for a construction project. One aspect of the project required replacement of a City sewer main. Baugh obtained a construction permit from the City to relocate the sewer main line, and then subcontracted with Deeny to do the work. The Church alleges that the side sewer to its building was connected to the preexisting main line.
Project plans called for Deeny to install the new sewer main and connect it to an existing manhole. According to its vice president, Deeny estimated the location of the Church's side sewer by looking at drawings provided to it by Baugh and by examining the City's sewer card. 2 The City's sewer cards showed that the Church's side sewer connected in close proximity to the location of the manhole. Deeny was aware that the City disclaimed the accuracy of its sewer cards. According to Deeny, it did not see the Church's side sewer during its excavations, and, if the side sewer had been located as depicted on the drawings, it would have. Deeny did not make an independent attempt to locate the side sewer. Deeny's work involved drilling a tunnel under the City street, and it is alleged that in doing so, Deeny severed the Church's side sewer line.
Deeny and Baugh finished their work on the project in July 1992. Thereafter, Group Health's engineer certified that the work was in compliance with the project plans. The Church used its building infrequently, and did not experience a problem until February 1994. It was not until February 1995 that the Church learned the alleged cause of its problems: its side sewer was not connected to the main line. Testing revealed that the Church's side sewer terminated within a few feet of the manhole.
The Church brought a negligence claim against the City, Deeny and Baugh, seeking damages in excess of $38,000. 3 The City asserted a cross-claim against Baugh and a third-party claim against Group Health, contending that both had breached their indemnity agreement. Both Baugh and Deeny moved for summary judgment, arguing that the Church's negligence claim against them was barred by the doctrine of completion and acceptance. 4 The trial court granted the motions, expressly basing its order on that doctrine. Baugh and Group Health later moved for judgment on the pleadings, including a motion to dismiss the City's claims for indemnification. The trial court treated the motion as one for summary judgment, granted the motion and dismissed the City's claims against Baugh and Group Health. The Church then obtained a voluntary dismissal of all other claims, including its claim against the City.
Washington has long recognized the doctrine of completion and acceptance, which declares that:
[W]here the work of an independent contractor is completed, turned over to, and accepted by, the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract[. 5
The doctrine therefore operates as a defense to contractor liability. 6 Initially premised on the notion of privity of contract, the doctrine was later justified by courts on the basis of preventing excessive litigation and the theory that acceptance of the work by the owner was an intervening cause relieving the contractor of liability. 7
The doctrine of completion and acceptance continues to be applied in Washington. 8 Applying the doctrine to the facts of this case, however, would effectively expand the doctrine in a manner that is unwarranted and unsupported by prior case law. Therefore, we hold that the doctrine does not apply in this case, and that the trial court erred by relying on the rule of nonliability for contractors created by the doctrine. We view the facts in the light most favorable to the Church in our review of the trial court's decision to grant the contractor's motion for summary judgment. 9 Summary judgment is proper when the evidence, admissions and pleadings show that there is no genuine issue as to a material fact, and the moving party is entitled to judgment as a matter of law. 10
We hold that if the alleged act of negligence on the part of a contractor is not a part of the contract work, but is instead a matter collateral to the contract work, the contractor's liability to third parties is based on established negligence principles and the rule of nonliability created by the doctrine of completion and acceptance does not apply. 11 In this context, protection for contractors from liability after completion of a contract must come from the liability-limiting negligence principles of foreseeability and proximate cause.
The Church alleges that while relocating the sewer main, Deeny severed the sewer connection between the sewer main and the Church's side sewer, and that Deeny did not reconnect the line. Deeny's contract with Baugh required it to complete all sewage and drainage systems and sanitary sewerage work in strict accordance with the terms of the contract, and to tunnel a sewer line under the street, if required.
The doctrine of completion and acceptance would apply to these facts if the contract had required Deeny to locate the Church's side sewer, disconnect it from the existing main line and then reconnect it to the relocated main line. Although Deeny was informed that the Church's side sewer was located in reasonably close proximity to the location of its excavation cite, its contract with Baugh did not require it to locate the side sewer, disconnect and reconnect it to the new main. 12 The alleged negligence was collateral to the contract, and the doctrine does not apply to relieve Deeny from liability which may be established under standard negligence principles. 13 The mere fact that the alleged negligence occurred during performance of the contract is not enough to bring the case within the scope of the doctrine.
We hold that the doctrine of completion and acceptance does not apply to this case, and the trial court erred by granting summary judgment to the contractors applying the doctrine. We remand for trial for a determination of the respective liability of Deeny and Baugh to the Church premised on established negligence principles. The Church is entitled to have a jury consider whether the contractors' negligence caused the damage to its building. Given this conclusion, we decline to address the Church's alternative argument that we should adopt the latent defect exception to the doctrine of completion and acceptance. 14
The City seeks to recover damages it incurred defending against the Church's complaint and in pursuing its indemnity claims against Baugh/Group Health. Because the duty to indemnify and the duty to defend arise at different times in a tort proceeding, the City maintains the right to seek those damages notwithstanding dismissal of the claims against it. 15
The City issued a construction permit apparently signed by a representative of Baugh. The City contends that it issued the permit to Group Health and Baugh, and Group Health does not argue otherwise. Under the permit, the work was to be performed according to plans and specifications approved by the Seattle Engineering Department. The permit contains the following statement: "The City shall be held harmless from any action arising...
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