For several years, design and construction professionals have been awaiting word from the Washington Supreme Court regarding whether aggrieved parties are limited to remedies set forth in their written contracts or whether they can pursue common law negligence claims. On November 14, the court decided Donatelli v. D.R. Strong Consulting Engineers, Inc., by suggesting that negligence claims could be pursued in certain circumstances unless the parties’ clearly and specifically preclude them. The result demonstrates the importance of including specific terms in the contract which delineates claims that the parties intend to either limit or preclude.
The plaintiffs in Donatelli entered into a written contract with an engineering firm, D.R. Strong Consulting, to develop two short plats. King County issued a preliminary approval for the short plats that was good for five years, but the project was not completed during this period and the approvals expired. Subsequently, the engineering firm assisted the Donatelli’s in obtaining new preliminary approvals, but the real estate market collapsed before they could obtain final approval. The Donatelli’s ran out of money and lost the property to foreclosure. They sued the engineer for breach of contract, negligence, negligent misrepresentation and violation of the Washington Consumer Protection Act (“CPA”). The engineer moved for summary judgment on all of the negligence claims, asserting as its sole basis for the motion that the claims were barred by the economic loss rule and on the CPA claim. The trial court granted summary judgment on the CPA claim but denied summary judgment on the negligence claims.
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