Following the Supreme Court’s recent adoption of the “independent duty rule” (see Eastwood v. Horse Harbor Foundation, Inc., 170 Wn.2d 380, 241 P.3d 1256 (2010) and Affiliated FM Insurance Co. v. LTK Consulting Services, Inc., 170 Wn.2d 442, 243 P.3d 521 (2010)), plaintiffs’ attorneys have been seeking to expand tort-based allegations for economic losses in construction defect litigation. The “lead” opinions from these cases specifically upheld all prior economic loss cases but stated that the blanket application of the economic loss doctrine was improper, and that a more nuanced, case-by-case approach under the independent duty rule was appropriate.
Before Judge Catherine Shaffer in King County Superior Court, Partner Lori O’Tool successfully defended the developer/general contractor by obtaining dismissal of the plaintiff condominium homeowner association’s (“HOA’s”) negligent construction claim. Ms. O’Tool argued the HOA’s claim was not a cause of action recognized in Washington and the damage alleged was purely an economic loss, which did not meet the criteria for the application of the independent duty rule. Relying on Division I’s Jackson v. City of Seattle, 158 Wn.App. 647, 244 P.3d 425 (2010), decided 3 weeks after the Supreme Court’s adoption of the independent duty rule, Judge Shaffer determined that the HOA’s allegation arose out of a defect in the quality of construction, which was an economic loss. Moreover, there was no evidence presented by the HOA of an alleged defect involving violence or collision with external objects that caused injury to a person or other separate property where tort remedies would be appropriate under the independent duty rule.
Associate Amber Gundlach assisted Ms. O’Tool in the research and drafting of the summary judgment motion.