Washington Construction Law Blog

A rare sighting of the Severin doctrine is on display in this Division 2 case released yesterday in the Natkin-Scott v. M+W Zander litigation.

As Severin encourages, a GC and sub entered into a pass-through agreement whereby the GC assigned its rights against the owner to the sub & the sub agreed to look solely to the owner for recovery in alleged impact claims.

There was one major but unknown problem -- the GC was unregistered & thus lacked the authority to bring claims against the owner.  The assignment of claims was, therefore, hollow.  After the owner defeated the pass-through claim on this ground, the sub turned back against the GC claiming the GC had breached an implied warranty that the assigned cause of action actually existed (relying on Section 333 of the Restatement (Second) of Contracts).

Division 2 held in favor of the GC and dismissed all of the sub's claims.  The basis of the holding was language in the Severin Agreement that both parties assume the risk of any mistake of fact or law.  The Court held that the GC's lack of registration -- and consequent lack of authority to bring claim -- was a mistake shared by both GC and that the risk of that mistake was transferred to the sub under the terms of the Severin Agreement.

Copy of opinion also available here Download file

Last year a motorist was killed in Boston's Big Dig tunnel when a concrete ceiling panel fell onto her car.  Today Massachusetts filed a criminal indictment for involuntary manslaughter against a New York company that supplied the epoxy anchor adhesive used to affix the panels to the top of the tunnel.   The indictment comes on the heels of last month's NTSB report concluding that the adhesive was not able to withstand long-term loads and that the NY company failed to divulge enough information about the product when selling it for use in the tunnel.

Building on its recent Tacoma Narrows case summarized in our April 25 post, Division 2 here again affirms that the scope of an arbitration clause -- i.e., whether a particular dispute falls within the clause or not -- is for the court to decide, unless the parties have stated otherwise in the arbitration agreement.

The editorial on "America's aging infrastructure" in ENR's current edition is eerily prescient.  We will be following the Minneapolis bridge collapse investigation.   One might well ask whether the Viaduct debate in Seattle will be influenced by this stunning failure.  If you read the ENR editorial, you won't be encouraged.