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Wright v. Jerry Fulks & Co.10/31/2005
This is a complex condominium construction defect case. Arlene A. Wright sued her contractor, Jerry Fulks & Company, Inc., (Fulks) and the condominium association for breach of contract, negligence, breach of fiduciary duty, bad faith and violation of the Consumer Protection Act. Wright alleged water intrusion from the exterior walls and interior water caused extensive property damage to her condominium, mold contamination and personal injury . The Association filed a counterclaim against Wright alleging she negligently designed and constructed her condominium. Wright filed a cross-claim against Fulks for breach of contract and indemnification. Fulks filed an answer asserting Wright's claims were subject to arbitration and filed a third-party claim against one of its subcontractors. Thereafter, Fulks demanded trial by a jury, engaged in extensive discovery, filed numerous pretrial motions, including dispositive motions, and before the scheduled trial date filed motions in limine, jury instructions and a trial brief. Throughout this two-year period before trial, Fulks' never demanded or filed a motion to compel arbitration.
On the first day of trial, after the trial court asked whether the claims between Wright and Fulks were subject to arbitration, Fulks asked the court to compel arbitration. The court granted Fulks' motion but certified the order for immediate review. We conclude the trial court erred in granting Fulks' motion to compel arbitration. Fulks waived his right to arbitration by engaging in conduct that was inconsistent with his right to arbitration and Fulks' delay in demanding arbitration prejudiced Wright. We reverse and remand for trial.
FACTS
The One Union Carillon Point Condominiums in Kirkland were constructed as unfinished shells. Wright purchased two adjacent ground floor units. In August 1994, Wright hired Fulks as the general contractor responsible for converting the two units into a single 5,696 square foot unit and constructing the interior according to the architect's specifications. Wright and Fulks entered into a written standard form AIA contract. As one of the additional provisions to the AIA contract, Wright and Fulks agreed to binding arbitration.
All disputes arising under this contract which are not resolved through mediation will be submitted to Judicial Arbitration & Mediation Services, Inc. (J.A.M.S.) for binding arbitration. . . . The parties agree that arbitration must be initiated within six (6) months after the claimed breach occurred and that the failure to initiate arbitration within the six-month period constitutes an absolute bar to the institution of any new proceedings. The aggrieved party can initiate arbitration by sending written notice of an intention to arbitrate by registered or certified mail to all parties and to J.A.M.S.
Construction on Wright's condominium took place between 1994 and 1996 and cost $4 million. Wright moved into the condominium in September 1996. In June 1999, she moved out because of construction defects, including water intrusion through exterior walls, windows and flooding from an interior fountain.
On May 3, 2002, Wright sued the One Carillon Point Owners Association, past and present board members of the Association (collectively 'Association'), and Fulks. Wright also sued her insurer, Maryland Casualty Company; the Association's insurer, Travelers Property Casualty; and Fulks' insurer, North Pacific Insurance Company. Wright alleged the Association breached its fiduciary duty and was negligent for failing to properly investigate, maintain, and repair damages caused by water intrusion and mold-growth. Wright sued Fulks for breach of contract and ne
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