Washington Supreme Court: Independent Duty Rule Doesn’t Bar Contractor’s Tort Claims, But Facts Do


The Washington Supreme Court continues to keep parties to construction contracts guessing about when remedies might be available, other than those set forth in the contract itself. The issue has been less than clear since the Court’s 2010 ruling in Eastwood v. Horse Harbor Foundation Inc., which replaced the “economic loss rule” — the principle that contracting parties should be limited to their contract remedies when a loss potentially implicates both tort and contract relief — with the “independent duty rule” — the principle that an injury is remediable in tort if it traces back to the breach of a tort duty arising independently of the terms of the contract.

The Court’s latest decision on the subject, Elcon Construction v. Eastern Washington University, doesn’t shed much light on the scope of the independent duty rule. In Elcon, the Court decided that the independent duty rule could not be applied to support a contractor’s claims of fraud and tortious interference with a contractual relationship, but did not provide any clues as to what facts might support such claims.

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