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1519-1525 Lakeview Bouldevard Condominium Association v. Apartment Sales Corp.8/14/2000
by the statute (less than one percent), the repose provision 'could not possibly have any meaningful impact on the medical malpractice insurance industry . . . .'
Attempting a similar comparison, Lakeview calls our attention to a law review article which quotes information submitted to the U.S. Congress the year the Washington repose statute was adopted. According to a study quoted in the article, 93 percent of all negligence claims against architects are brought within six years of the termination of their services, and 99.6 percent are brought within 10 years. Considering the percentage of foreclosed claims as a measure of whether the legislative classification for a statute of repose is rationally related to the legislative purpose may not always be appropriate, but applying that measure here does not yield the result Lakeview suggests. In DeYoung, the Court concluded that the 'minuscule' number of claims eliminated by the repose statute was too small (i.e., less that one percent) to accomplish the legislative objective of alleviating a perceived insurance crisis.
The facts are different here. If the only question is whether the statute eliminates a sufficient number of claims to satisfy the purpose of providing ultimate repose for contractors, the Legislature could rationally decide to eliminate the seven percent of claims that apparently accrue after the sixth year, and we cannot say that seven percent is minuscule. While the argument considered and accepted in DeYoung was not decided in Yakima Fruit, and is therefore properly before us, we must reject it as applied to these facts and on this record.
Accordingly, we must hold that under controlling Washington precedent, the construction statute of repose does not violate the privileges and immunities clause or equal protection guarantees.
Issues of Fact as to Rose and Geotech
Because we conclude the construction statute of repose may be asserted by the Contractors and bars Lakeview's claims, we do not reach Lakeview's argument that issues of fact remain to preclude summary judgment as to Rose and Geotech.
Motions to Strike
In this court, Lakeview moved to strike the amicus brief of Associated General Contractors (AGC) on grounds that the brief was submitted less than 30 days before oral argument in violation of RAP 10.2(f). Lakeview's motion is well taken. RAP 10.2(f) requires amicus curiae not requested by this court be submitted not later than 30 days before oral argument. AGC submitted its brief on December 30, 1999. Oral argument was set for January 24, 2000. We strike the AGC amicus brief because its submission was untimely under RAP 10.2(f), and permission to file was improvidently granted.
The Contractors moved to strike a portion of Lakeview's reply brief on the grounds that those portions were based on factual assertions and authority not submitted below. We deny the motion because the dispute concerns contents of a law review article.
Affirmed.
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