Pointe at Westport Harbor Homeowners' Ass'n v. Eng'rs Nw., Inc., s. 45839–0–II
| Court | Court of Appeals of Washington |
| Citation | 376 P.3d 1158,193 Wash.App. 695 |
| Docket Number | Nos. 45839–0–II,46079–3–II.,s. 45839–0–II |
| Parties | The POINTE AT WESTPORT HARBOR HOMEOWNERS' ASSOCIATION, a Washington nonprofit corporation, Respondent, v. ENGINEERS NORTHWEST, INC., P.S., a Washington professional services corporation; Theodore D. McDonald and Jane Doe McDonald, husband and wife, and their marital community, Appellants, and Dodson–Duus, LLC, a Washington limited liability company; Harbor Resort Holdings, LLC, a Washington limited liability company; Gabe Duus and Jane Doe Duus, husband and wife, individually and their marital community; Harbor Resort Properties, Inc., a closely-held Washington corporation; Mark Dodson and Desiree Dodson, husband and wife, individually and their marital community; Edward Dodson, Jr. and Ann Grimes–Dodson, husband and wife, individually and their marital community; Doe Affiliates 1–20; Doe Principals 1–10; Doe Declarant Board Members 1–10; Doe Contractors 1–20; Doe Declarant Agents 1–10; Doe Transferees 1–50; Integrity Structures, LLC, a Washington limited liability company; and Corson Swift Builders, LLC, a Washington limited liability company, Defendants. |
| Decision Date | 03 May 2016 |
193 Wash.App. 695
376 P.3d 1158
The POINTE AT WESTPORT HARBOR HOMEOWNERS' ASSOCIATION, a Washington nonprofit corporation, Respondent
v.
ENGINEERS NORTHWEST, INC., P.S., a Washington professional services corporation; Theodore D. McDonald and Jane Doe McDonald, husband and wife, and their marital community, Appellants
and
Dodson–Duus, LLC, a Washington limited liability company; Harbor Resort Holdings, LLC, a Washington limited liability company; Gabe Duus and Jane Doe Duus, husband and wife, individually and their marital community; Harbor Resort Properties, Inc., a closely-held Washington corporation; Mark Dodson and Desiree Dodson, husband and wife, individually and their marital community; Edward Dodson, Jr. and Ann Grimes–Dodson, husband and wife, individually and their marital community; Doe Affiliates 1–20; Doe Principals 1–10; Doe Declarant Board Members 1–10; Doe Contractors 1–20; Doe Declarant Agents 1–10; Doe Transferees 1–50; Integrity Structures, LLC, a Washington limited liability company; and Corson Swift Builders, LLC, a Washington limited liability company, Defendants.
Nos. 45839–0–II
46079–3–II.
Court of Appeals of Washington, Division 2.
May 3, 2016.
Steven George Wraith, Aaron Paul Gilligan, Lee Smart PS Inc., Marilee C. Erickson, Reed McClure, Aloysius Grant Lingg, Christopher A. Matheson, Forsberg & Umlauf PS, Seattle, WA, Barnett N. Kalikow, Kalikow Law Office, Olympia, WA, Michael James Bond, Attorney at Law, Mercer Island, WA, Leonard D. Flanagan, Flanagan Strauss PLLC, Bellevue, WA, for Appellants.
Steven George Wraith, Aaron Paul Gilligan, Lee Smart PS Inc., Justin D. Sudweeks, Stein Sudweeks & Houser PLLC, Daniel Stephen Houser, Stein, Flanagan, Sudweek & Houser, PLLC, Seattle, WA, Leonard D. Flanagan, Flanagan Strauss PLLC, Bellevue, WA, for Respondent.
PART PUBLISHED OPINION
BJORGEN, C.J.
¶ 1 In these consolidated appeals, structural engineering firm Engineers Northwest Inc. (ENW) challenges several rulings and a judgment entered against it in a lawsuit brought by the homeowners' association (HOA) of The Pointe at Westport Harbor (The Pointe). The issue we address in the published portion of this opinion is ENW's claim that the trial court erred by denying its motion for summary judgment on grounds that ENW owed independent tort duties to the developer of The Pointe and the HOA.
We hold that the trial court did not err in denying ENW's summary judgment motion for this reason. We address ENW's remaining challenges in the unpublished portion of this opinion. We affirm the trial court in all respects but one: we reverse and remand for entry of judgment that does not include Corson Swift Builders LLC (Corson Swift), an entity that was not subject to judgment.
FACTS
1. Design and Construction
¶ 2 Dodson–Duus, LLC, developed The Pointe, an upscale condominium building in Westport. Dodson–Duus contracted with Steven P. Elkins Architects Inc. (Elkins) to carry out the architectural design work for the project. Elkins then contracted with ENW for structural engineering services. ENW worked on the structural calculations and designs, while Elkins did the architectural planning. ENW was also responsible for construction administration, which involved reviewing shop drawings and answering questions from the building contractors.
¶ 3 Dodson–Duus contracted with Integrity Structures LLC to supervise construction. Integrity then subcontracted with Corson Swift for framing work. Construction took place during 2007 and 2008.
¶ 4 According to the evidence presented at trial, both the design and construction suffered from defects. In particular, the lateral force resistance system is insufficient to withstand a large seismic event. These defects include improperly nailed shear walls, weak connections between shear walls and floor joists, improperly sized floor sheathing, a weak second floor diaphragm, and omitted hold downs connecting shear walls to a steel beam. The use of gypsum sheathing also created a risk of corrosion to the building's steel structure. Evidence tied each of these defects to some aspect of ENW's structural calculations and designs. Evidence also tied omission of the hold downs to Corson Swift's construction decisions.
2. The Lawsuit
¶ 5 In August 2011, the HOA sued Dodson–Duus for construction defects and incomplete construction under the Condominium Act, chapter 64.34 RCW, among other matters. The HOA then added negligence claims against ENW, Integrity, and Corson Swift. The HOA's claims against ENW were for negligent design, and the claims against Integrity and Corson Swift were for negligent construction and misrepresentation. The HOA claimed that the building was “rendered unreasonably dangerous to its occupants,” and it sought compensatory damages for the costs of investigating and repairing the defects. Clerk's Papers (CP) at 55. The HOA did not allege any consequential injuries to persons or property arising from the defects.
¶ 6 Dodson–Duus filed cross-claims against ENW for negligence, breach of contract, and implied indemnity. ENW filed cross-claims against Dodson–Duus and Corson Swift for negligence and implied indemnity. Dodson–Duus eventually settled with the HOA and assigned to the HOA its rights against ENW, Elkins, and Integrity. The HOA then brought a claim against Elkins for breach of its contract with Dodson–Duus. Integrity also settled the HOA's claims against it. CP at 2333.
¶ 7 ENW moved for summary judgment, arguing among other things, that the independent duty doctrine barred negligence claims for harm that was in effect an economic loss. The trial court denied the motion as to each claim, ruling that material issues of fact remained in dispute.
3. The Trial
¶ 8 At the time of trial, the HOA had outstanding claims against ENW and Corson Swift for negligence, and against Elkins for breach of its contract with Dodson–Duus. The primary issues of fact were whether the building was dangerously unsafe, whether physical damage had resulted from any of the defects, whether the defects resulted from
ENW's designs and construction administrations services and Corson Swift's construction, and the scope of repair necessary to fix the defects.
¶ 9 The HOA presented structural engineer James Paustian as its expert to testify to the existence of the defects, the resulting safety risks, and the standard of care for a structural engineer. Paustian testified at trial that in his opinion, informed by his own testing and on-site observation, the structural engineering work had been deficient and led to the defects that rendered the building dangerously unsafe in a large seismic event. He also testified that such seismic events occur in the area, and prepared a scope of repair that involved fixing each defect in the building. ENW presented another structural engineer, Panos Trochalakis, who opined that ENW was indeed responsible for some of the defects, but that the scope of repair necessary to alleviate any safety risks was less than the total repair Paustian recommended.
¶ 10 Following trial, ENW proposed jury instructions and a special verdict form to the trial court. The trial court refused to give several of the instructions, and ENW objected to their omission. ENW also objected to jury instructions 11, 12, 13, 14, 18, and 19 issued by the trial court. The trial court gave the jury a special verdict form different from the one proposed by ENW, to which ENW objected.
4. The Verdict and Judgment
¶ 11 The jury was issued instructions and given a special verdict form on which to assign and apportion fault. The negligence questions on the special verdict form allowed the jury to determine and apportion fault only to ENW and Corson Swift, and did not mention Elkins, Dodson–Duus, or Integrity.
¶ 12 The jury found that both ENW and Corson Swift had been negligent and that their negligence caused the defects in the building. It found that the resulting damages amounted to $1,149,332, for which ENW was 97.5 percent
at fault and Corson Swift was 2.5 percent at fault. It also found that Elkins had breached its contract with Dodson–Duus, and that the resulting damages were $100,000.
¶ 13 The trial court entered judgment against ENW for the entire amount of negligence damages on the basis of joint and several liability. ENW unsuccessfully opposed entry of the judgment on grounds that it was only severally liable for 97.5 percent of the negligence damages because Corson Swift had been administratively dissolved in 2007 and was not a party against whom judgment could be entered. The trial court also entered judgment against Elkins for the full amount of negligence damages and the $100,000 contract damages.
5. Post–Judgment Motions
¶ 14 ENW moved for judgment as a matter of law and...
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