Washington Construction Law Blog

A subcontractor was operating a crane when it rolled over and damaged two conveyor belts being used to transport coal at the Centralia energy plant.  This in turn caused a plant shutdown, which caused the customer to purchase energy on the open market to fulfill its requirements to third parties during the shutdown.  This case involved the customer's suit against the subcontractor to recover the extra energy costs.

The trial court had entered summary judgment in favor of the subcontractor, based on its argument that the customer failed to mitigate its damages.  The subcontractor's mitigation theory was that the customer need not have purchased energy on the open market to fill current requirements to third parties because its obligations to those third parties were discharged by a Force Majeure Clause that allowed the customer to suspend its performance if its inability to perform was due to factors outside its control.

Reversing on appeal, Division 2 held that the effect of the Force Majeure Clause on the customer's duty to mitigate was a question of fact for the jury - specifically, whether the customer acted "reasonably" by not invoking the Force Majeure Clause to suspend energy deliveries to third parties.

If you begin work for Owner A on a given parcel but that owner sells its interest in the land to Owner B in the middle of your work, what impact does this transfer have on your ability to enforce your mechanics lien - especially for that portion of the service performed after the land sale?

According to this new Division 1 case, the impact is considerable - and negative.  That's because the lien statute (RCW 60.04.051) assumes that the owner or its agent is the party requesting the service to be performed - and in fact makes the validity of the lien depend on that being the case.

So when the ownership changes from A to B in mid-stream, the work done by the contractor under its contract with Owner A but which now benefits the land owned by Owner B may well fall outside the lien statute because Owner B did not request the service.  Keeping an eye on who actually owns the property is thus yet another to-do item for lien claimants under this case.

The primary issue in this appeal was whether a lien service had the authority to sign the attestation clause required for an effective mechanics' lien under RCW 60.04.091.  The Superior Court had vacated the lien on the ground that the lien service had no such authority.  Reading the statute differently, Division 2 held the attestation clause was valid even though it was not signed by the lien claimant itself or its attorney.