Tymon Berger, Ahlers and Cressman
In April, AGC’s Legal Affairs Committee supported a contractor-member’s efforts before the Washington Court of Appeals. The Legal Affairs Committee joined the contractor in asking the appellate court to consider the contractor’s request to have its lawsuit against King County decided in a Snohomish County court. The Court of Appeals recently accepted review of the contractor’s appeal. The contractor can now explain to the appellate court why Washington’s venue statute allows the contractor to have its dispute with King County decided in Snohomish County in order to eliminate any real or perceived advantage in having the dispute heard in the County’s homecourt.
Washington’s venue statute allows contractors to sue counties in adjacent counties to avoid the partiality (or the appearance of partiality) of juries and judges deciding a case that affects the county they live in. The AGC supported an amendment passed by the state legislature in 2015 that invalidated contract clauses requiring lawsuits to be filed in a county’s homecourt. As discussed in a previous blog post, however, King County used non-negotiable dispute resolution procedures in its contract to get the drop on the AGC contractor, suing the contractor before the contractor could sue King County in nearby Snohomish County, thereby bypassing Washington’s venue statute altogether. A King County trial court denied the contractor’s request to move the dispute to Snohomish County, effectively reasoning that the contractor agreed to forego its right to have disputes heard outside of King County when the contractor agreed to bid on the project.
In granting review of the contractor’s appeal, the Court of Appeals indicated it would review the trial court’s decision based on whether public policy prevented the County from forcing the contractor to have its dispute decided in the County’s homecourt. As the Court of Appeals noted, this standard would be a departure from the typical instance where venue is left to the discretion of trial court. In accepting the contractor’s appeal, the appellate court also referred to the 2015 amendment invalidating contract clauses that force lawsuits to be heard in a county’s homecourt.
Oral argument has not been scheduled by the Court of Appeals. And a decision is likely many months away. But the appellate court’s willingness to hear the contractor’s appeal—and the court’s reasoning for hearing the appeal—indicates a step in the right direction.
Tymon Berger, of Ahlers and Cressman, is a member of AGC’s Legal Affairs Committee.