Dania, Inc. v. Skanska Usa Building, Inc.

FILED
COURT OF APPEALS
DIVISION II
2014 DEC 30 AM 9 44
IN THE COURT OF APPEALS OF THE STATE ,' Kseier
BY
DIVISION II tl PITY
DANIA, INC., a Delaware corporation; No. 45035 -6 -II
NORTHWEST WA PROPERTIES, LLC, a
Delaware limited liability company,
Appellant.
v.
SKANSKA USA BUILDING INC., a Delaware PUBLISHED OPINION
corporation; McDONALD & WETLE
ROOFING, INC., a Washington corporation,
Respondents.
LEE, J. — Dania, Inc. appeals the trial court' s summary dismissal of its construction defect
action against Skanska USA Building, Inc. Dania argues that the trial court erred in concluding
that the statute of repose, RCW 4. 16. 310, barred its action. Because there is a question of fact as
to whether Dania filed its complaint before the applicable limitations period expired, we hold that
the trial court erred in ruling as a matter of law that the statute of repose barred Dania' s complaint.
Accordingly, we reverse the summary judgment order dismissing Dania' s complaint against
Skanska and remand for further proceedings.
FACTS
On March 17, 2005, Dania entered into a contract with Skanska, as general contractor, for
the construction of a distribution warehouse in the city of Dupont, Washington (the City). Skanska
entered into a subcontract with McDonald & Wetle, Inc. ( M &W) for all required labor, material,
No. 45035 -6 -II
equipment, supervision and coordination necessary to construct a complete roof system on the
warehouse.
On December 21, 2005, the City issued a temporary certificate of occupancy that permitted
Dania to occupy part of the warehouse. On the same date, M &W issued a two -year warranty
certifying that the roof was watertight.
In January 2006, Dania received permission from the City to use the full square footage of
the warehouse. Work continued on the warehouse, however, and a punch list issued on February
14, 2006, showed that several items of work remained, including the addition of a final layer of
the roofing membrane known as the " mineral cap sheet." Clerk' s Papers ( CP) at 143 -44, 183. The
mineral cap sheet contains ceramic granules for ultraviolet ( UV) protection and weatherability,
and its installation was part of M &W' s contract with Skanska.
M &W completed the mineral cap sheet installation on the roof on June 21, 2006. In
November 2006, Dania noticed leaks in the lobby area of the warehouse and elsewhere. M &W
made initial repairs, but Dania eventually hired an outside contractor in 2010 to repair the roof.
Dania filed suit against Skanska and M &W for breach of contract and negligence on April
4, 2012. Dania alleged that the roof was leaking because roofing materials, including the mineral
cap sheet, were not properly installed, and it claimed damages of almost $400, 000.
Skanska responded by moving for summary judgment under the construction statute of
repose, RCW 4. 16. 310, which bars any action for construction defects that fail to accrue within
six years of substantial completion of construction or termination of services, whichever is later.
Skanska argued that Dania' s complaint was untimely because it was filed more than six years after
January 2006, the project' s substantial completion date. Skanska also argued that the June 2006
No. 45035 -6 -II
roof work did not postpone the running of the statute of repose because that work was unrelated to
Dania' s complaint.
Dania successfully moved to delay consideration of the summary judgment motion so that
it could conduct discovery into Skanska' s contentions. Dania deposed Todd Barnes, Skanska' s
project manager for the warehouse construction, and asked him about the mineral cap sheet work
performed in June 2006:
Q: Now, you said that a cap sheet was installed on the roof in the summer of
2006. Can you tell me, what is a cap sheet?
A: It' s the final layer of the roofing membrane.
Q: What makes it different than any other layer of the roofing membrane?
A: I couldn' t tell you the technical qualities, but it' s got ceramic granules, and
those are mainly there for UV protection.
Q: Without the cap sheet layer, was the roof still watertight?
A: Correct, yes.
Q: And do you know what contractor installed that cap sheet?
A: McDonald & Wetle.
CPat182.
During the summary judgment hearing that followed, Skanska contended 'that the above
exchange from the Barnes deposition showed that the June 2006 cap work was unrelated to Dania' s
cause of action and that the statute of repose began to run from the date of the warehouse' s
substantial completion in January 2006. Skanska maintained that the statute of repose could not
start running when the mineral cap sheet was installed in June 2006 because the June work had
nothing to do with the leaks.
Dania replied that there was not yet any testimony about the cause of the leaking. RP 12.
When the court reasoned that it was possible that application of the mineral cap sheet caused the
leaking and asked whether there was any evidence in the record to create this issue of fact, Dania
3
No. 45035 -6 -II
responded that an issue of fact existed without additional evidence. The court then suggested that
it was Dania' s burden, as the nonmoving party, to respond with some evidence that the mineral
cap sheet caused the leaks. The court eventually agreed with Skanska that the lack of such
evidence showed that the statute of repose started to run from the date of substantial completion
and that Dania' s action was time barred. Dania appeals the order granting summary judgment and
dismissing Dania' s claim against Skanska.
ANALYSIS
A. STANDARD OF REVIEW
A moving defendant meets its initial burden on summary judgment by showing that there
is an absence of evidence to support the plaintiff' s case. Young v. Key Pharms., Inc., 112 Wash. 2d
216, 225 n. 1, 770 P.2d 182 ( 1989). The inquiry then shifts to the plaintiff to set forth specific facts
demonstrating a genuine issue for trial. Young, 112 Wash. 2d at 225. An order granting summary
judgment should be affirmed if no genuine issue of material fact remains and the moving party is
entitled to judgment as a matter of law. CR 56( c). A material fact is one on which the outcome
of the litigation depends. Greater Harbor 2000 v. City ofSeattle, 132 Wash. 2d 267, 279, 937 P.2d
1082 ( 1997). We review a summary judgment order de novo and consider the evidence and all
reasonable inferences therefrom in the light most favorable to the nonmoving party. Schaaf v.
Highfield, 127 Wash. 2d 17, 21, 896 P.2d 665 ( 1995).
B. APPLICABLE LIMITATIONS PERIOD
Skanska moved for summary judgment on the basis that Dania' s action was barred by the
statute of repose, RCW 4. 16. 310. Dania responded by arguing that the statute of repose was
satisfied if the statute of limitations started running during the six years following Skanska' s
4
No. 45035 -6 -II
termination of services. Dania contended that its claims accrued in November 2006, when it
discovered that the roof was leaking, and that its April 2012 complaint was timely.
Skanska replied that Dania was improperly arguing that its filing deadline had been
extended by the discovery rule. Skanska asserted that under the statute of limitations for
construction contract claims codified in RCW 4. 16. 326( 1)( g), any defect claims arising out of a
construction project must be filed within six years of substantial completion or termination of
services and that the date of discovery was immaterial. Skanska argued further that the statute of
repose in RCW 4. 16. 310 was the governing law and that the only relevant determination was the
date on which the statute of repose commenced. During the hearing, Dania did not challenge
Skanska' s argument that the discovery rule no longer applied and that under RCW 4. 16. 326( 1)( g),
a construction defect claim must both accrue and be filed within six years of substantial completion
or termination of services, whichever is later. In its motion for reconsideration, Dania cited RCW
4. 16. 326( 1)( g) as the " combined statute of limitations /statute of repose the legislature came up
with to deal with construction contracts." CP at 239.
In explaining the law that guides our analysis, we address the statute of repose, the statute
of limitations, and RCW 4. 16. 326( 1)( g).
1. Statute of Repose —RCW 4. 16. 310
A statute of repose terminates a potential claim after a specified time, even if an injury has
not yet occurred. Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt
Nichols -Kiewit Constr. Co., 176 Wash. 2d 502, 511, 296 P.3d 821 ( 2013). RCW 4. 16. 310 bars an
action for construction defects that does not accrue six years from the time of substantial
completion of construction or termination of services, whichever is later. Cambridge Townhomes,
5
No. 45035 -6 -II
LLC v. Pac. Star Roofing, Inc., 166 Wash. 2d 475, 485, 209 P.3d 863 ( 2009). The statute provides
as follows:
All claims or causes of action as set forth in RCW 4. 16. 300 shall accrue, and the
applicable statute of limitation shall begin to run only during the period within six
years after substantial completion of construction, or during the period within six
years after the termination of the services enumerated in RCW 4. 16. 300E11,
whichever is later. The phrase " substantial completion of construction" shall mean
the state of completion reached when an improvement upon real property may be
used or occupied for its intended use. Any cause of action which has not accrued
within six years after such substantial completion of construction, or within six
years after such termination of services, whichever is later, shall be barred.
RCW 4. 16. 310; see also Donovan v. Pruitt, 36 Wn. App. 324, 327, 674 P.2d 204 ( 1983)
describing RCW 4. 16. 310 as a statute of abrogation).
Under RCW 4. 16. 310, a claim set forth in RCW 4. 16. 300 must accrue within the six years
following substantial completion of construction or termination of services, whichever is later.
Hunt, Huber, 176 Wash. 2d at 511. Once the claim has accrued, " that is the end of the statute of
repose inquiry. Whether an accrued claim is timely filed is a different question, involving the
statute of limitation, not the statute of repose." Hunt, Huber, 176 Wash. 2d at 511.
2. Statute of Limitations —RCW 4. 16. 040( 1)
Under the statute of limitations in former RCW 4. 16. 040( 1) ( 2007), an action upon a
written contract must be commenced within six years. A statute of limitations generally runs from
the time a claim accrues, which is when a party has the right to apply to a court for relief.
1 RCW 4. 16. 300 applies to all claims or causes of action against any person " arising from" such
person having any improvement upon real property. Condit v.
constructed, altered or repaired
Lewis Refrigeration Co., 101 Wash. 2d 106, 110, 676 P.2d 466 ( 1984). RCW 4. 16. 300 also applies
to claims against persons who supervise construction or administer construction contracts; it
focuses on individuals whose activities relate to construction of the improvement." Condit, 101
Wash. 2d at 110.
6
No. 45035 -6 -II
Cambridge Townhomes, 166 Wash. 2d at 485. Thus, unlike a statute of repose, which bars a right of
action after a specified time even if injury has not occurred, a statute of limitations bars the accrued
claim after a specific period of time. Harmony at Madrona Park Owners Ass 'n v. Madison
Harmony Dev. Inc., 143 Wn. App. 345, 353, 177 P.3d 755 ( quoting Rice v. Dow Chem. Co., 124
Wash. 2d 205, 211, 875 P.2d 1213 ( 1994)), review denied, 164 Wash. 2d 1032 ( 2008).
Actions often accrue, for purposes of applying a statute of limitations, when the wrongful
act occurs. 1000 Virginia Ltd. P' ship v. Vertecs Corp., 158 Wash. 2d 566, 575, 146 P.3d 423 ( 2006).
However, courts sometimes apply a discovery rule of accrual where the cause of action accrues
when the plaintiff discovers, or should discover, the elements of the cause of action. 1000 Va.,
158 Wash. 2d at 575 -76.
In 2002, Division One of this court held that the discovery rule applied to breach of
construction contract claims. Architectonics Constr. Mgmt., Inc. v. Khorram, 111 Wash. App. 725,
737, 45 P.3d 1142 ( 2002), abrogated by 1000 Va., 158 Wash. 2d 566 ( 2006). As a result, persons
who constructed, altered or repaired any improvement upon real property could be potentially
liable for services provided up to 12 years after substantial completion or termination of services -
6 years for the claim or cause of action to accrue and 6 years after accrual before the statute of
limitations terminates the right of action.
3. Legislative Response —RCW 4. 16. 326( 1)( g)
In 2003, the legislature enacted RCW 4. 16. 326, which included an affirmative defense that
precluded application of a discovery rule in construction contract cases. RCW 4. 16. 326( 1)( g);
Harmony, 143 Wash. App. at 354. RCW 4. 16. 326 provides as follows:
7
No. 45035 -6 -II
1)Persons engaged in any activity defined in RCW 4. 16. 300 may be excused, in
whole or in part, from any obligation, damage, loss, or liability for those defined
activities under the principles of comparative fault for the following affirmative
defenses:
g) To the extent that a cause of action does not accrue within the statute of repose
pursuant to RCW 4. 16. 310 or that an actionable cause as set forth in RCW 4. 16. 300
is not filed within the applicable statute of limitations. In contract actions the
applicable contract statute of limitations expires, regardless of discovery, six years
after substantial completion of construction, or during the period within six years
after the termination of the services enumerated in RCW 4. 16. 300, whichever is
later.
RCW 4. 16. 326( 1)( g).
This legislation was intended to reduce a builder' s potential exposure to liability from 12
to 6 years, thus creating greater certainty for insurers. 1000 Virginia Ltd. P 'ship v. Vertecs Corp.,
127 Wn. App. 899, 912 n. 29, 112 P.3d 1276 ( 2005), aff'd, 158 Wash. 2d 566, 146 P.3d 423 ( 2006).
The affirmative defense in RCW 4. 16. 326( 1)( g) terminates any construction contract claim six
years after substantial completion or termination of services listed in RCW 4. 16. 300, whichever is
2
later. 1000 Va., 158 Wash. 2d at 582. Thus, following the enactment of RCW 4. 16. 326( 1)( g), any
claim for breach of written construction contracts must both accrue and be filed within six years
of substantial completion or termination of services, whichever is later. Huber, Hunt, 176 Wash. 2d
at 515; Cambridge Townhomes, 166 Wash. 2d at 485.
RCW 4. 16. 326( 1)( g) is neither a statute of repose nor a statute of limitations. 1000 Va.,
158 Wash. 2d at 583. It does not alter the statute of repose in RCW 4. 16. 310. Rather, it explains that
2 If a defendant fails to plead RCW 4. 16. 326( 1)( g) as an affirmative defense, the discovery rule
can apply to delay accrual of a cause of action even on a written construction contract. 1000 Va.,
158 Wash. 2d at 582. Moreover, the discovery rule may still apply to oral contracts, which have a
three -year statute of limitations. RCW 4. 16. 080( 3); 1000 Va., 158 Wash. 2d at 582.
8
No. 45035 -6 -II
the limitations period expires, regardless of discovery, at the end of the same six -year period in
RCW 4. 16. 310. 1000 Va., 158 Wash. 2d at 583 -84. RCW 4. 16. 326( 1)( g) identifies the point at which
the applicable limitations period expires and establishes an absolute end to the limitations period
as an affirmative defense. 1000 Va., 158 Wash. 2d at 584.
On appeal, the parties focus on when Dania' s breach of contract action accrued under RCW
4. 16. 310 and whether Dania brought its action before the statute of repose ran. Dania argues that
the relevant date is June 2006, when Skanska terminated its services after installing the mineral
cap on the roof; therefore, because the complaint was filed in April 2012, the claim is not barred
by the statute of repose. Skanska, on the other hand, argues that Dania' s claim is barred by the
statute of repose because the relevant date is January 2006, the date of substantial completion, not
June 2006 because the mineral cap installation on the roof was not related to Dania' s complaint.
While the parties focus on whether Dania' s claim is barred under the statute of repose
RCW 4. 16. 310), the relevant inquiry is whether Dania filed its action within the time limitation
set forth in RCW 4. 16. 326( 1)( g). 3 As discussed above, a claim is barred under the statute of repose
if it does not accrue within six years of substantial completion or termination of services. Here, it
is undisputed that Dania' s claim accrued in November 2006, when the roof started leaking, which
is well within the statute of repose limitation. Thus, the issue is not whether the claim is barred by
3 Skanska' s arguments on the applicability of RCW 4. 16. 326( 1)( g) to the trial court satisfy our
liberal pleading rules. CR 15.
9
No. 45035 -6 -II
the statute of repose, but whether Dania filed its cause of action within six years of substantial
4
completion or termination of contract, whichever is later, as required by RCW 4. 16. 326( 1)( g).
C. SUBSTANTIAL COMPLETION
Under RCW 4. 16. 310, a construction project is substantially complete if it can be used or
occupied for its intended use. Substantial completion occurs when the entire improvement, and
not just a component part, may be used for its intended purpose. Mattingly v. Palmer Ridge Homes
LLC, 157 Wn. App. 376, 394, 238 P.3d 505 ( 2010); Smith v. Showalter, 47 Wash. App. 245, 251,
734 P.2d 928 ( 1987). The fact that additional contract work remains, including punch list work,
does not affect the conclusion that a project is substantially complete if it is otherwise fit for
occupancy. 1519 -1525 Lakeview Blvd. Condo. Ass 'n v. Apt. Sales Corp., 101 Wash. App. 923, 932,
6 P.3d 74 ( 2000), aff'd, 144 Wash. 2d 570, 29 P.3d 1249 ( 2001).
Dania conceded during oral argument that construction of the warehouse was substantially
complete when the entire warehouse was ready for use in January 2006. Skanska' s project
completion report, written in June 2006, stated that the building' s opening was on January 1, 2006.
Barnes, the project manager, stated in his deposition that Dania was allowed to occupy the whole
warehouse by the second or third week of January 2006. Dania' s response to Skanska' s summary
judgment motion stated that Dania received permission to occupy the entire warehouse in January
2006. And, in its motion for reconsideration, Dania acknowledged that full use of the warehouse
began in January 2006. Therefore, if the later date of June 2006 ( the date Dania argues Skanska
4 RCW 4. 16. 326( 1)( g) does not appear to apply to Dania' s negligence claim, which is governed
by a three -year statute of limitations. RCW 4. 16. 080; see Huber, Hunt, 176 Wash. 2d at 515 ( RCW
4. 16. 326( 1)( g) applies to claim for breach of written construction contact).
10
No. 45035 -6 -II
installed the mineral cap on the roof and terminated its services) does not apply, then Dania' s April
2012 complaint was filed after the limitations period had expired.
D. TERMINATION OF SERVICES
Dania argues that the controlling date is June 2006, the termination of services date. Dania
conceded during oral argument that termination of services occurred with the roof's completion in
June 2006.
For contractors who perform final services on a project, the limitations period begins to
run from the date their last service was provided, so long as that service gave rise to the cause of
action. Parkridge Assocs., Ltd.. v. Ledcor Indus., Inc., 113 Wash. App. 592, 599 -600, 54 P.3d 225
2002). The language of RCW 4. 16. 300 describing actions or claims " arising from" various
services shows that there must be a nexus between the services performed after the date of
substantial completion and the cause of action in order for the termination of services date to extend
the limitations period. Parkridge, 113 Wash. App. at 599 -600. This requirement protects those who
perform other earlier services from remaining exposed to liability until all services are completed
by all contractors. See 1519 -1525 Lakeview Blvd., 144 Wash. 2d at 577.
Skanska argues that the nexus requirement is satisfied only with evidence of a causal link
between the final services and the cause of action. Therefore, Dania was required to supply
evidence showing that installation of the mineral cap on the roof caused the leaking. Skanska
contends that dismissal was appropriate because Dania did not respond to the summary judgment
motion with any such evidence.
Dania argues that the nexus requirement is satisfied if there is some kind of connection
between the final services and the cause of action. Dania also argues that the needed connection
11
No. 45035 -6 -II
here is shown by the fact that Skanska' s final service was to the roof, which was the basis of the
cause of action. Dania maintains that there is an issue of fact concerning the nexus requirement
without the evidence of causation that Skanska would require, and it cites language from Parkridge
as support.
In Parkridge, the general contractor on a construction project (Ledcor) sued a subcontractor
Freeman) for allegedly defective work. 113 Wash. App. at 595 -96. Freeman moved for summary
judgment, arguing that Ledcor' s claims were barred by the construction statute of repose.
Parkridge, 113 Wn. App. at 597. The trial court agreed and dismissed Ledcor' s breach of
subcontract claim. Parkridge, 113 Wash. App. at 597.
On appeal, Ledcor argued that Freeman' s later work qualified as " services" under RCW
4. 16. 300, while Freeman argued that there had to be a nexus between those services and the cause
of action. Parkridge, 113 Wash. App. at 599. Division One agreed with them both. Parkridge, 113
Wn. App. at 599. Without elaborating on the type of work performed, the court observed that
Freeman' s work following the date of substantial completion was " arguably work from which
Ledcor' s cause of action arose." Parkridge, 113 Wn. App. at 599 -600. The court added that, in
any event, Freeman had failed to show the absence of a genuine issue of material fact on the nexus
issue:
Freeman claims that the work performed after the date of substantial
completion was " warranty repairs" or " punch list" work that had no nexus to the
contract and initial construction work on which the lawsuit is based. Nothing in
the record supports this bare assertion. But even if Freeman had provided evidence
to support this argument, there would be, at most, a genuine issue of material fact
on the question. Summary judgment would not have been proper. Accordingly,
the date of termination of services, December 5, 1994, controls, not the December
30, 1993 date of substantial completion of the project.
12
No. 45035 -6 -II
Parkridge, 113 Wash. App. at 600.
Thus, the Parkridge court held that because the moving party failed to provide evidence
showing that its final services had nothing to do with the contract and the initial construction work
on which the lawsuit was based, summary judgment was improper. The court also held that even
if the moving party had provided such evidence, an issue of material fact on the nexus question
would remain.
We question this reasoning, as it would prohibit a contractor from ever obtaining summary
judgment on the nexus issue. We agree, however, with the more fundamental point in Parkridge
that there must be some nexus between the construction work and the cause of action for the
termination of services date to apply. RCW 4. 16. 300 provides that an action must " aris[ e] from"
a service and thereby requires a connection between the action and the service. Without that
connection, a contractor' s liability could be extended by any subsequent work on a construction
project. See 1519 -1525 Lakeview Blvd., 101 Wash. App. at 929 -30 ( rejecting argument that
termination of services would not occur until the termination of all services by all providers).
Here, the required connection is arguably satisfied by the location and timing of the June
roof work and the November leaking. See Parkridge, 113 Wash. App. at 600 ( summary judgment
was inappropriate because the subcontractor' s final services were arguably work from which the
cause of action arose). The record shows that the roof was installed, except for the final layer, by
the end of 2005 and that it was watertight at that point. The record then shows that the final layer
was installed in June 2006 and that the leaks began the following November. Skanska insists that
its final services had nothing to do with the subsequent leaking because the project manager stated
that the roof was watertight without the final cap. But the fact that the roof was watertight in
13
No. 45035 -6 -II
January does not show, in and of itself, that the subsequent cap installation did not affect the roofs
ability to withstand moisture.
We reject Skanska' s argument that additional evidence of a causal link was required to
withstand summary judgment. During oral argument, Skanska reasoned that even if a Dania expert
had opined that installation of the final roof layer caused the leak, Skanska would have needed to
conduct additional depositions to determine the basis for that opinion. The result would be a mini -
trial on causation that would essentially require Dania to prove an element of its case in response
to a summary judgment motion based on the statute of repose. See Nw. Indep. Forest Mfrs. v.
Dep' t ofLabor & Indus., 78 Wn. App. 707, 712, 899 P.2d 6 ( 1995) ( elements of breach of contract
claim include duty, breach, causation, and damages). We decline to interpret the nexus
requirement to impose the burden Skanska seeks to impose on Dania.
When viewed in the light most favorable to Dania, the nonmoving party, the evidence
raises a genuine issue of material fact as to whether a connection exists between Skanska' s final
work on the roof in June 2006 and the leaking that followed in November 2006. Because genuine
issues of fact remain concerning that connection, the trial court erred in dismissing Dania' s
complaint against Skanska. Therefore, we reverse the order dismissing Dania' s complaint on
summary judgment and remand for further proceedings.
I concur:
Worswick, P. .
14
No. 45035 -6 -I1
MAxA, J. ( concurring in result) — I agree with the majority opinion that the trial court' s
grant of summary judgment in favor of Skanska USA Building, Inc. must be reversed. But I
write separately because I believe that under RCW 4. 16. 326( 1)( g), the statute of limitations
begins to run at termination of the defendant' s construction services rather than at substantial
completion even ifthose services do not relate to the plaintiff's claim. Because there is no
question that Skanska' s subcontractor engaged in construction services in June 2006 and Dania,
Inc. filed its lawsuit within six years after termination of those services, I would hold as a matter
of law that the statute of limitations cannot bar Dania' s lawsuit.
RCW 4. 16. 326( 1)( g) states that the applicable construction contract statute of limitations
expires " six years after substantial completion of construction, or during the period within six
years after the termination of the services enumerated in RCW 4. 16. 300, whichever is later."
The parties do not dispute that ( 1) substantial completion of Dania' s warehouse occurred by
January 2006, ( 2) after substantial completion Skanska' s subcontractor performed additional
construction services – installation of a final layer of the roofing membrane, ( 3) the
subcontractor did not complete the membrane installation on the roof until June 2006, and ( 4)
Dania filed suit against Skanska and the subcontractor for breach of contract in April 2012.
Therefore, Dania' s claim is barred if the statute of limitations started running at substantial
completion, but it is not barred if the statute of limitations started running when Skanska' s
subcontractor terminated its services in June 2006.
The majority opinion states "[ f]or contractors who perform final services on a project, the
limitations period begins to run from the date their last service was provided, so long as that
service gave rise to the cause of action." Majority at 11 ( emphasis added). For authority, the
15
No. 45035 -6 -II
majority relies on Parkridge Associates Ltd. v. Ledcor Industries, Inc., where Division One of
this court held: " The plain language of RCW 4. 16. 300, describing actions or claims ` arising
from' various services, shows that the services considered in this assessment must be those that
gave rise to the cause of action." 113 Wn. App. 592, 599, 54 P.3d 225 ( 2002) ( interpreting the
phrase " termination of the services enumerated in RCW 4. 16. 300" in RCW 4. 16. 310).
I believe that the statements in the majority opinion and in Parkridge reflect an erroneous
interpretation of the term " services" as used in construction contract statutes. RCW
4. 16. 326( 1)( g) provides that the statute of limitations begins to run at the " termination of the
services enumerated in RCW 4. 16. 300." Nothing in RCW 4. 16. 326( 1)( g) states or even implies
that the " services" it references must be the services giving rise to the plaintiff' s cause of action.
The court in Parkridge referenced the " plain language of RCW 4. 16. 300." 113 Wn. App
at 599. But the services enumerated in that statute are, among others, " claims or causes of action
of any kind against any person, arising from such person having constructed, altered or repaired
any improvement upon real property." RCW 4. 16. 300.
In other words, under RCW 4. 16. 326( 1)( g) the statute of limitations starts running at
termination of construction services. Nothing in RCW 4. 16. 300 states or even implies that the
services referenced in RCW 4. 16. 326( 1)( g) must be the services giving rise to the plaintiff's
cause of action.
Here, Skanska' s subcontractor performed services enumerated in RCW 4. 16. 300 —
constructing, altering or repairing any improvement upon real property —in June 2006. As a
result, RCW 4. 16. 326( 1)( g) provides that the statute of limitations did not start running until the
termination of those services.
16
No. 45035 -6 -II
The majority concludes that a question of fact exists as to when the statute of limitations
started running because the services performed in June 2006 involved the warehouse' s roof, and
Dania' s claim involved the roof. However, in my opinion it does matter whether the June 2006
services were related or completely unrelated to Dania' s claim. Under the plain language of
RCW 4. 16. 326( 1)( g), as long as the services were construction services as enumerated in RCW
4. 16. 300, the statute of limitations started running upon the termination of those services.
I would reverse and remand with directions to the trial court to dismiss Skanska' s statute
of limitations defense.
17