[WSBARP] Tadych v. Noble Ridge Construction

Sat Nov 12 20:00:25 PST 2022

Washington law is very hostile to professional builders who do not comply with building codes. 

Scott Osborne

scott.osborne2 at gmail.com
206 447-6293 - Direct Line
206 359-5454 Cell

Sent from my iPad

> On Nov 10, 2022, at 9:06 AM, Gabriel Dietz <gabe at hdpnw.com> wrote:
> 
> 
> I have to wonder how the court would have come out if the limitation of liability were conspicuous (bold and capitalized for example) and laid out in a separate document with a recitation of consideration. I could see this ruling later limited to the specific facts since the clause was buried in the document and not called out to the buyer's attention or paid for, but of course a one-year limitation of liability now comes with a lot of risk to the upstream parties. I had often questioned if this would happen. The court stated in its conclusion that the ruling was based on substantive unconscionability, but in fact addressed both substantive and procedural unconscionability (terms inconspicuous, not prominently set out in the contract, not negotiated or bargained for). How are attorneys representing contractors and developers adjusting their drafting practice to account for this ruling, whether that involves longer timelines for limitations of liability and/or ensuring that the limitation is called to the buyer's attention? Do plaintiffs'/buyers' attorneys consider a one-year limitation of liability totally unenforceable?
> 
> Gabriel A. Dietz
> Partner
> Hoerschelmann Dietz PLLC
> p: (206) 451-3859
> f: (206) 337-4506
> gabe at hdpnw.com
> www.hdpnw.com
> 
> CONFIDENTIALITY NOTICE: This communication, including any attachments, contains privileged or confidential information intended for a specific individual and purpose, and is protected by law. If you are not the intended recipient, you should delete this communication and shred the materials and any attachments. You are hereby notified that any use, disclosure, copying, or distribution of this communication, or the taking of any action in reliance on the contents of this information, is strictly prohibited. If you have received this transmission in error, please immediately notify me by email or telephone.
> 
> 
>> On Sat, Oct 29, 2022 at 9:23 AM Bryce Dille <Bryce at dillelaw.com> wrote:
>> most of my new home construction clients give a HOW 2–10 warranty which is separately purchased and a separate document in and of itself that is given to the homebuyer and therefore I believe would be upheld under the recent decision since the warranty goes from 2 to 10 years depending on the component of the house being warranted.
>> 
>> Bryce H. Dille
>> Dille Law, PLLC
>> Office: 360-350-0270
>> Cell: 253-579-5561
>> 
>> ** Please note that I use the dictation feature of my iPhone and that sometimes everything I say does not get properly translated**
>> 
>>> On Oct 28, 2022, at 8:01 PM, Kary Krismer <Krismer at comcast.net> wrote:
>>> 
>>> 
>>> I think there's a bit more too it than just the length of time, but 1 year is really too short on new construction.  The house might not even have finished normal settling in that time.  Some contractors ask that the buyer wait until close to the year to notify them of minor drywall issues so that they don't have to come in multiple times.  Also, you're basically only getting through one year of seasons.
>>> 
>>> Again, I think the legislature needs to step in and set some minimum rules just to provide some certainty.  I'd think three years should be plenty for major issues, but five years would be better.
>>> 
>>> Kary L. Krismer
>>> John L. Scott, Inc.
>>> 206 723-2148
>>>> On 10/28/2022 9:29 AM, Kaitlyn Jackson wrote:
>>>>   In this case it looks like the court found that the "contractual limit" of 1 year to sue was what was unconscionable, right? So as I read it (and I just skimmed for holding), the contractors cannot limit their liability for defects to 1 year (at least not without bargain and mutual benefit). Gonzalez dissented. 
>>>> 
>>>> Kaitlyn
>>>> 
>>>> 
>>>>> On Fri, Oct 28, 2022 at 9:18 AM David <dpw at thewilliamslawfirm.com> wrote:
>>>>> All too often the attention is on avoiding liability and too little attention on performing quality work 
>>>>> 
>>>>> 
>>>>> Cheers,
>>>>> 
>>>>> David Paul Williams
>>>>> Fly Fishing For Western Smallmouth
>>>>> (Stackpole Books)
>>>>> 
>>>>> Order Fly Fishing For Western Smallmouth at your local fly shop
>>>>> Or find at your favorite independent bookstore
>>>>>  
>>>>> 
>>>>>> On Oct 28, 2022, at 7:52 AM, Kary Krismer <Krismer at comcast.net> wrote:
>>>>>> 
>>>>>> I'm surprised no one had mentioned this new case, finding a one year warranty on new construction unconscionable.
>>>>>> 
>>>>>> https://www.courts.wa.gov/opinions/pdf/1000499.pdf
>>>>>> 
>>>>>> A 5-4 decision.
>>>>>> 
>>>>>> As a real estate broker I find some (but not all) of these new construction warranties absurdly pathetic, and it does affect some buyers' decisions.  Also the quality of some construction I see is sometimes very questionable.  Just last week a client was looking at a property multi-unit townhouse (fee simple) that was only a few years old and had a rather obvious problem that presented a huge red flag related to water intrusion.  I would not want to be that seller.
>>>>>> 
>>>>>> It would be nice if the legislature would step in an provide some minimum level of protection, and protection against using special purpose entities to limit such protections.  The incentive for builders to perform adequate quality work is too low.
>>>>>> 
>>>>>> I'll step off my soapbox now.
>>>>>> 
>>>>>> -- 
>>>>>> Kary L. Krismer
>>>>>> John L. Scott, Inc.
>>>>>> 206 723-2148
>>>>>> 
>>>>>> 
>>>>>> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>>>>>> 
>>>>>> _______________________________________________
>>>>>> WSBARP mailing list
>>>>>> WSBARP at lists.wsbarppt.com
>>>>>> http://mailman.fsr.com/mailman/listinfo/wsbarp
>>>>> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>>>>> 
>>>>> _______________________________________________
>>>>> WSBARP mailing list
>>>>> WSBARP at lists.wsbarppt.com
>>>>> http://mailman.fsr.com/mailman/listinfo/wsbarp
>>>> 
>>>> 
>>>> -- 
>>>> **PLEASE TAKE NOTE OF OUR NEW OFFICE ADDRESS BELOW.
>>>> 
>>>> Thank you,
>>>> 
>>>> Kaitlyn R. Jackson, Senior Associate Attorney
>>>> Dimension Law Group, PLLC
>>>> Office:  206-973-3500│Fax:  206-577-5090
>>>> Email: kaitlyn at dimensionlaw.com
>>>> www.dimensionlaw.com
>>>> 631 Strander Blvd, Bldg A, Suite G, Tukwila, WA 98188
>>>>  
>>>> PRIVILEGED AND CONFIDENTIAL:  This email (including any attachments) is intended only for the use of the individual or entity named above and may contain privileged or confidential information. If you are not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are notified that any review, dissemination, distribution or copying of this email is prohibited. If you have received this email in error, please immediately notify us by email, facsimile, or telephone; return the email to us at the email address below; and destroy all paper and electronic copies. 
>>>> 
>>>> PRIVILEGED AND CONFIDENTIAL:  This e-mail (including any attachments) is intended only for the use of the individual or entity named above and may contain privileged or confidential information. If you are not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are notified that any review, dissemination, distribution or copying of this e-mail is prohibited. Attempts to intercept this message are in violation of 18 USC 2511(1) of the Electronic Communications Privacy Act, which subjects the interceptor to fines, imprisonment and/or civil damages. If you have received this e-mail in error, please immediately notify us by e-mail, facsimile, or telephone; return the e-mail to us at the e-mail address below; and destroy all paper and electronic copies. Any settlement offer contained herein is made pursuant to Washington ER 408, and without admitting fault or liability on the part of this firm’s client(s) or its agents.  IRS CIRCULAR 230 DISCLAIMER:  To ensure compliance with requirements imposed by the IRS, I inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code; or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter addressed herein. 
>>>> 
>>>> 
>>>> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>>>> 
>>>> _______________________________________________
>>>> WSBARP mailing list
>>>> WSBARP at lists.wsbarppt.com
>>>> http://mailman.fsr.com/mailman/listinfo/wsbarp
>>> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>>> 
>>> _______________________________________________
>>> WSBARP mailing list
>>> WSBARP at lists.wsbarppt.com
>>> http://mailman.fsr.com/mailman/listinfo/wsbarp
>> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>> 
>> _______________________________________________
>> WSBARP mailing list
>> WSBARP at lists.wsbarppt.com
>> http://mailman.fsr.com/mailman/listinfo/wsbarp
> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
> 
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20221112/680e2a30/attachment.html>