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1519-1525 Lakeview Bouldevard Condominium Association v. Apartment Sales Corp.8/14/2000
First, Lakeview argues Geotech cannot claim the protection of the statute because its services fall outside the statute's scope, since its report was issued before any construction began, and its conclusions were 'geological' in nature. This argument was not made to the trial court, and we therefore decline to consider it. We note, however, that the statute does not distinguish between services provided before or after construction; the statute applies to claims arising from providers of 'engineering services'; and Lakeview's complaint characterizes Geotech's services as 'geotechnical engineering.'
Second, Lakeview alleges that Geotech fraudulently concealed defects in the subsurface drainage system, and that such concealment tolls the statute of repose. Whether fraudulent concealment has the effect of tolling the statute is an unsettled question. We need not resolve the question here, however, because Lakeview submitted no evidence that Geotech concealed anything. Lakeview's dissatisfaction with the level of detail in summary reports about Geotech's inspection of footing drains is not enough to raise a question of concealment where Geotech submitted field reports describing what was seen and what was inferred. Nor did Geotech's original report on the stability of the slope amount to fraudulent concealment. Lakeview essentially argues that the report was wrong, which is the gravamen of its negligence claim but not evidence of fraud.
Lakeview thus establishes no basis for any approach other than the straightforward application of the statute employed by the trial court. The project was substantially complete in August 1990, and the last of the Contractors terminated its services in September 1990. When Lakeview's claims arising from the Contractors' improvements accrued on January 3, 1997, more than six years had passed since both substantial completion of construction and termination of each Contractor's services. The statute of repose therefore applies to bar Lakeview's claims.
Construction Statute of Repose: Constitutional Challenges
Lakeview makes two constitutional challenges to the statute. First, Lakeview argues the construction statute of repose violates fundamental rights of access to the courts under article I, section 10 of the Washington Constitution, because it extinguishes rights before they accrue and thereby denies a remedy. Second, Lakeview argues the statute violates the privileges and immunities clause of the state constitution and the equal protection guarantee of the federal constitution.
Regarding access to the courts, Lakeview's basic premise is that legislation which is destructive of a remedy available at common law denies the fundamental right of access to a judicial remedy. Our Supreme Court has held that access to the courts is a fundamental right. The provisions upon which that right is grounded are not entirely clear; as one commentator observed, 'the Washington Supreme Court has been sure of the right of access, but unsure of its constitutional source.' In Carter v. University of Washington, the Court founded the right upon article I, section 4 (right of petition). The following year, however, that aspect of the holding was overruled in Housing Authority of King County v. Saylors, wherein the Court held that article I, section 4 preserves citizens' rights to political access, not to the courts:
Carter v. University of Washington . . . should . . . be overruled insofar as it suggested that article I, section 4, protects a right of access to the courts. . . . This provision obviously has reference to the exercise of political rights. . . . It requires an awkward and unnatural construction of this language to make i
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