Opinion
CASE NO. C12-276 RAJ
06-12-2014
PUGET SOUND ELECTRICAL WORKERS HEALTH AND WELFARE TRUST, et al., Plaintiffs, v. LIGHTHOUSE ELECTRICAL GROUP, et al., Defendants.
HONORABLE RICHARD A. JONES
ORDER
This matter comes before the court on a motion for attorney's fees pursuant to RCW 39.04.240 by defendants Travelers Casualty and Surety Company of America ("Travelers") and Jody Miller Construction, Inc. ("JMC") (collectively, "defendants"). Dkt. # 63. Plaintiffs oppose the motion only on the basis that RCW 39.04.240 does not apply to the claims asserted in this action. Dkt. # 68 at 3-8.
RCW 39.04.240 provides:
The provisions of RCW 4.84.250 through 4.84.280 shall apply to an action arising out of a public works contract in which the state or a municipality, or other public body that contracts for public works, is a party, except that:RCW 39.04.240(1). RCW 4.84.250 provides that "in any action for damages . . . there shall be taxed and allowed to the prevailing party as a part of the costs of the action a reasonable amount to be fixed by the court as attorney's fees." RCW 4.84.284 addresses the timing of offers of settlement with respect to determining attorney's fees.
(a) the maximum dollar limitation in RCW 4.84.250 shall not apply; and (b) in applying RCW 4.84.280, the time period for serving offers of settlement on the adverse party shall be the period not less than thirty days and not more than one hundred twenty days after completion of the service and filing of the summons and complaint.
The court disagrees with plaintiff regarding whether the phrase "an action arising out of a public works contract" is ambiguous. Washington courts have consistently held that the term "arising out of is not ambiguous and means "originating from" or "flowing from." See e.g., Everett v. Am. Empire Surplus Lines Ins. Co., 64 Wash. App. 83, 89, 823 P.2d 1112 (1991).
"Offers of settlement shall be served on the adverse party in the manner prescribed by applicable court rules at least ten days prior to trial. Offers of settlement shall not be served until thirty days after the completion of the service and filing of the summons and complaint. Offers of settlement shall not be filed or communicated to the trier of the fact until after judgment, at which time a copy of said offer of settlement shall be filed for the purposes of determining attorney's' fees as set forth in RCW 4.84.250." RCW 4.84.280.
Thus, whether RCW 39.04.240 applies depends on whether this action arose out of a public works contract in which Washington State or other public body that contracts for public works is a party, and whether defendants are prevailing parties.
On April 3, 2013, plaintiffs amended their complaint to add Travelers, JMC, and the State of Washington as defendants. Dkt. # 19. The lien and retainage bond claims against JMC and Travelers arise out of a construction project at Seattle Central Community College ("SCCC Project"). Dkt. # 19 (Am. Compl.) ¶¶ 3.52-3.58, 4.7-4.14. JMC was the general contractor, and Lighthouse Electrical Group Limited Partnership ("Lighthouse") was the subcontractor from April 2010 through January 2012. Id. ¶ 3.52. JMC was required to provide and maintain a performance bond covering the project pursuant to RCW 39.08 et seq. and RCW 60.28.011. Id. ¶ 3.53. Travelers, as surety, issued a Payment and Performance Bond to JMC to cover the SCCC Project pursuant to RCW 39.08.010. Id. ¶ 3.54.
Washington State remained a party in this action until they were voluntarily dismissed by stipulation on November 13, 2013, after defendants had already filed their motion to dismiss that the court ultimately granted. Dkt. # 48.
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However, a public works contract is a condition precedent to a lien or retainage bond claim. See RCW 39.08.010(1) (government and person performing work for government must enter contract that requires person to obtain surety and to pay all laborers, among other things) & 60.28.011(1) (public improvement contracts must provide a contract retainage as a trust fund for protection and payment of claims arising under contract). Thus, any lien or retainage bond claims necessarily flow from the public works contract.
Accordingly, the court finds that plaintiff's lien and retainage bond claims under RCW 39.08.010 and 60.28.011 arise out of a public works contract. See Am. Safety Cas. Ins. Co. v. Olympia, 162 Wn. 2d 762, 773, 174 P.3d 54 (Wn. 2007) (awarding RCW 39.04.240 fees to the city as prevailing party in lawsuit brought by surety on performance and payment bond as an assignee of the general contractor's rights under a public works construction project).
Defendant also argues that there is no public agency party in this action. However, plaintiffs named the State of Washington as a defendant in the amended complaint, and only dismissed the State of Washington on November 5, 2013, after defendants had already filed their motion to dismiss and incurred significant fees defending this action. Dkt. # 48. The court believes that defendants are entitled to reasonable fees incurred until November 5, 2013. Since the State of Washington has not been a party to this action since that date, defendants have not demonstrated that they are entitled to attorney's fees beyond that date. See RCW 39.04.240(1) (requiring "the state or a municipality, or other public body that contracts for public works" to be a party in the action to recover attorney's fees).
Plaintiff does not dispute that defendants were the prevailing party under RCW RCW 4.84.250 or that the amount of attorney's fees requested is reasonable. The court has reviewed the billing records, and finds the amount requested through November 5, 2013 to be reasonable. Accordingly, the court awards defendants $14,634.95 in attorney's fees.
For all the foregoing reasons, the court GRANTS in part and DENIES in part defendants' motion for attorney's fees.
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The Honorable Richard A. Jones
United States District Judge