Hudesman v. Meriwether Leachman Associates, Inc.

• Decision Date: 12 July 1983
• Docket Number: No. 9415-7-I,9415-7-I
• Citation: 35 Wn.App. 318,666 P.2d 937
• Parties: David HUDESMAN, James M. Rendahl and James H. White, d/b/a Rainier Village, Inc., Appellants, v. MERIWETHER LEACHMAN ASSOCIATES, INC., a business entity; and Robert Meriwether and Jane Doe Meriwether, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 318

35 Wn.App. 318

666 P.2d 937

David HUDESMAN, James M. Rendahl and James H. White, d/b/a Rainier Village, Inc., Appellants, v. MERIWETHER LEACHMAN ASSOCIATES, INC., a business entity and Robert Meriwether and Jane Doe Meriwether husband and wife, Respondents.

No. 9415-7-I.

Court of Appeals of Washington Division 1.

July 12, 1983.

Rehearing Denied Sept. 20, 1983.

Karr, Tuttle, Koch, Campbell, Mawer & Morrow, P.S., Martin Crowder, David Swartling, Philip Talmadge, Seattle, for appellants.

Carney, Stephenson, Badley, Smith & Mueller, P.S., Basil Badley, Seattle, for respondents.

CALLOW, Judge.

David Hudesman, James White, and James Rendahl, doing business as Rainier Village, Inc., appeal a summary judgment dismissal of their cause of action against Meriwether Leachman Associates, Inc., for professional malpractice. These issues are presented:

(1) Whether RCW 4.16.310 imposes an absolute bar on all actions to which it applies where such actions are brought 6 years after substantial completion of construction.

(2) Whether the trial court erred in granting a summary judgment dismissal based on its conclusion, as a matter of law, that the Rainier Village Complex was substantially complete as defined in RCW 4.16.310.

In 1972, David Hudesman, James White, and James Rendahl formed a joint venture doing business as Rainier Village, Inc. (Rainier). The purpose of the joint venture was to develop a shopping center in Renton with approximately six commercial units. On January 25, 1973, Rainier contracted with Bell Construction Company for construction of the premises. Later that same month, Rainier entered into a service agreement with Meriwether Leachman Associates, Inc. (Meriwether), in which Meriwether was to perform a northerly property line survey of the project premises for Rainier. The survey was done in conjunction with the construction of the project and completed in February of 1973. By the end of August 1973 the shopping center had been approved, subject to certain corrections, for "three completed units" by the appropriate Renton authorities. However, the entire shopping mall was not ready for occupancy nor occupied until early 1974.

In April of 1978, an "as built" survey of the building was performed by another surveyor for the purpose of expanding the shopping center. This survey demonstrated that the prior survey performed by Meriwether was erroneous and that a service driveway of the building encroached upon the adjacent property. As a result of this error, Rainier suffered substantial damages and could not obtain a loan for expansion.

Thereafter, Rainier commenced an action in King County Superior Court for professional malpractice against Meriwether, filed November 28, 1979. Meriwether subsequently moved for summary judgment of the action based on RCW 4.16.310. On September 24, 1980, the trial court granted Meriwether's motion for summary judgment after consideration of the pleadings, records, affidavits of Robert C. Meriwether and James M. Rendahl, certification of records, and the memoranda and oral argument of counsel. Motion for reconsideration was denied on January 14, 1981, the trial court finding:

(1) [T]hat [RCW 4.16.310] is the applicable statute of limitations and that it precludes maintenance of an action six years after substantial completion of construction, and (2) that there is no genuine issue of material fact that the construction which is the subject matter of this litigation was substantially completed as defined in the statute prior to November 28, 1973 ....

Rainier appeals.

The first issue is whether RCW 4.16.310 imposes an absolute bar on all actions to which it applies where such actions are brought 6 years after substantial completion of construction.

Rainier contends that the language of RCW 4.16.310 only prescribes the time period within which a plaintiff's claim must accrue and is not an absolute limitation. Meriwether contends that RCW 4.16.310 acts as an absolute statute of limitations and bars any action not commenced within 6 years of substantial completion of construction. ¹

"[T]he legislature has the constitutional power to enact a clear line of demarcation to fix a precise time beyond which no remedy will be available." Rodriguez v. Niemeyer, 23 Wash.App. 398, 401, 595 P.2d 952 (1979); see Ruth v. Dight, 75 Wash.2d 660, 666, 453 P.2d 631 (1969). RCW 4.16.300 and .310 were adopted to protect architects, contractors, engineers, surveyors and others from extended potential tort and contract liability. Pinneo v. Stevens Pass, Inc., 14 Wash.App. 848, 545 P.2d 1207 (1976). RCW 4.16.310 limits the "discovery rule" which determines when a cause of action accrues in certain actions. Under the discovery rule, "a cause of action accrues and the statute of limitation does not begin to run until the plaintiff learns of or in the exercise of reasonable diligence should have learned of the facts which give rise to the cause of action." Metropolitan Services, Inc. v. Spokane, 32 Wash.App. 714, 720, 649 P.2d 642 (1982); see U.S. Oil & Refining Co. v. Department of Ecology, 96 Wash.2d 85, 92, 633 P.2d 1329 (1981). The rule is generally applied where the plaintiff lacks the means or ability to ascertain that a wrong has been committed. U.S. Oil, at 93, 633 P.2d 1329.

The "discovery rule" was initially applied in medical malpractice cases, Ruth v. Dight, supra, and was applied to malpractice actions brought against surveyors in Kundahl v. Barnett, 5 Wash.App. 227, 230, 486 P.2d 1164 (1971), which stated: "The legislature in 1967 limited the accrual of a cause of action against a surveyor, among others, under certain circumstances, to 6 years from the date of substantial completion or termination of improvements to real estate". (Emphasis added.)

RCW 4.16.310 legislatively restricts the application of the discovery rule. As stated in Gazija v. Nicholas Jerns Co., 86 Wash.2d 215, 222 n. 2, 543 P.2d 338 (1975):

While important policy reasons support the accrual at discovery rule, we also recognize it may be desirable to place some outer limit upon the delayed accrual of actions in order to avoid an undue burden on potential defendants. The legislature may wish to enact a reasonable absolute limitation on actions like those in this case as it has in other contexts. See RCW 4.16.310, 4.16.350.

(Emphasis added.) Rodriguez v. Niemeyer, supra, 23 Wash.App. at 401, 595 P.2d 952, stated:

The statute has a broad scope barring all causes of action that do not accrue within 6 years after substantial completion or termination of any of the specified services, Pinneo v. Stevens Pass, Inc., 14 Wash.App. 848, 545 P.2d 1207 (1976), whether the damage was or could have been discovered within that period. This court cannot constitutionally ignore such a clear mandate from the legislature.

(Some emphasis added.)

In essence, RCW 4.16.310 sets an outer limit for discovery of an erroneous survey giving rise to a cause of action described in RCW 4.16.300, for the accrual of a claim for damages and for the commencement of the running of the period of the statute of limitations applicable to such claims.

A cause of action accrues at the moment when...