§4.5 Defenses and Contractual Considerations

• Jurisdiction: Washington

§4.5 DEFENSES AND CONTRACTUAL CONSIDERATIONS

Many of the same defenses that apply to negligence claims and actions can be asserted as defenses to claims against design professionals and are discussed throughout this deskbook. Some of the more common of such defenses for design professionals are discussed below, such as statutes of limitation and repose, limitations of liability, indemnity, and the Atherton defense. However, a practitioner would be remiss not to raise other defenses to claims asserted against design professionals.

(1) Statutes of limitation and repose

Statutes of limitation and statutes of repose are laws that bar a party from filing a claim after a specified period of time has elapsed. For claims to be barred by either a statute of limitations or the statute of repose, a design professional must allege each as an affirmative defense. See Fulle v. Boulevard Excavating, Inc.,20 Wn.App. 741, 743, 582 P.2d 566 (1978) ("The statute of limitations is an affirmative defense, and its elements must be proved by the party asserting it."). The difference between a statute of limitations and a statute of repose is the point from which the limitation of time is measured. Statutes of limitation generally begin at, and are measured from, the date of injury or discovery of the deficiency. Clare v. Saberhagen Holdings, Inc.,

[Page 4-17]

129 Wn. App. 599, 603-04, 123 P.3d 465 (2005). Because the time of injury or discovery can begin at any time, the limitation can run indefinitely Statutes of repose, on the other hand, provide a design professional with protection from third-party claims after a specific period of time has elapsed after termination of services or substantial completion of a project. See RCW 4.16.310. In most cases, statutes of repose are supplemented with statutes of limitation. A thorough discussion of the statutes of limitation and repose in the construction industry can be found in Chapter 25 (Arbitration, and Litigation) of this deskbook. This section will only discuss specific differences that apply to design professionals.

Practice Tip: Although the burden of proving that a claim is barred by the statute of limitations or the statute of repose is on the party asserting it, a plaintiff who opposes a statute of limitations defense under the discovery rule bears the burden of proving that the facts constituting the claim were not and could not have been discovered by due diligence within the applicable limitation period.

(a) Statutory limitation periods for claims against design professionals

A party to a contract is allowed six years to bring a cause of action for breach of contract only when the action is "upon a contract in writing, or liability express or implied arising out of a written agreement, ...." RCW 4.16.040. For the six-year statute of limitations to apply to a contract, it "must be in writing and the writing must contain all essential elements of a contract." Barnes v. McLendon,128 Wn.2d 563, 570, 910 P.2d 469 (1996) (citing Cahn v. Foster & Marshall, Inc.,33 Wn.App. 838, 840-41, 658 P.2d 42 (1983)). Thus, to establish a breach of written contract, the plaintiff must establish the specific written promise that was breached. Bogle & Gates, P.L.L. C. v. Zapel, 121 Wn.App. 444, 448-49, 90 P.3d 703 (2004). In contrast, a three-year limitation period is applied to oral contracts. RCW 4.16.080(3). Even when a written agreement exists, if "resort to parol evidence is necessary to establish any material element, the contract is partly oral and the three-year statute of limitations applies." Browning v. Howerton,92 Wn.App. 644, 647, 966 P.2d 367 (1998). When there is a written proposal that is unsigned, parol evidence is required, and claims arising out of any such written proposal are governed by the three-year limitation period. Bogle & Gates, 121 Wn.App. at 448.

[Page 4-18]

In general, claims against design professionals based on a breach of the standard of care will be subject to a three-year statute of limitations, as the duty underlying the claim does not arise out of a specific written contractual promise but rather is imported into the agreement from an external source. See, e.g., Bicknell v. Garrett,1 Wn.2d 564, 570-71, 96 P.2d 592 (1939); Block v. Law Offices of Ben F. Barcus & Assocs., PLLC, 189 Wn.App.1006, No. 71742-1-I, 2015 WL 4531138at*2(2015)(unpublished); Bennett v. Computer Task Grp., 112 Wn.App. 102, 106-14,47 P.3d 594 (2002); Busk v. Flanders,2 Wn.App. 526, 530,468 P.2d 695 (1970). In contrast, breaches of specific promises in a professional services contract will be subject to a six-year statute of limitations. This may include a breach of a contractual standard of care that exceeds the statutory or common-law standard, if such a standard was promised by the design professional as part of the written contract. Care should be taken when analyzing claims against design professionals, as what may...