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Wright v. Jerry Fulks & Co.10/31/2005
gligence. Wright claimed she suffered significant property damage and personal injury from exposure to toxic mold.
In July 2002, the Association filed an answer and a counterclaim alleging Wright negligently designed and constructed her condominium unit; failed to properly maintain her unit; and failed to repair the damage to common elements caused by interior water leaks. In response to the Association's counterclaim, Wright filed a cross-claim against Fulks for breach of contract and indemnification.
On September 16, 2002, Fulks filed an amended answer, asserted twenty-two affirmative defenses and filed a third-party complaint against one of the subcontractors, Western Tile and Marble, Inc. One of the affirmative defenses in Fulks' answer asserted Wright's claims were subject to 'agreed, binding arbitration.'
Over the next year and nine months, the parties engaged in extensive discovery and filed numerous motions. Fulks propounded numerous interrogatories, requests for production and noted at least 25 depositions. The case was assigned to several different judges and the trial date was continued over Wright's objection to February 23, 2004. On September 16, 2003, the court granted Fulks' motion for partial summary judgment and dismissed all of Wright's negligence claims but denied Fulks' motion to dismiss the breach of contract common element claims.
In January 2004, Fulks settled its lawsuit against Western Title and Marble, Inc. On the Friday before the February 23 trial, Wright settled her claims against the Association. Wright filed the Notice of Settlement with the Association on the first day of trial, February 23. At the beginning of trial, the trial judge asked about the arbitration provision in the AIA contract. 'I'm just almost reluctant to bring the question up, but I feel I have to in the addenda attachment Article 15.8 provides that disputes arising under the agreement be resolved through mediation and failing that would go to binding arbitration at JAMS. And I'm wondering in light of the fact that we're down to just the two contractual parts {sic} why we're not there instead of here.' In response to the court's question, Fulks asked the court to compel arbitration. Wright opposed the request on the ground that Fulks had waived its right to compel arbitration. The trial court concluded Fulks' did not waive its right to arbitration and granted Fulks' motion to compel. The court entered an order granting the motion to compel arbitration and entered CR 54(b) findings and final judgment. The court certified the order for immediate review and stayed proceedings under RAP 2.3(b)(4). We granted discretionary review.
ANALYSIS
Standard of Review
Wright contends Fulks waived its right to enforce the arbitration provision in the parties AIA contract. The parties agree the AIA contract provision is subject to the` Federal Arbitration Act (FAA) and federal case law governs enforceability of the arbitration agreement. Kinsey v. Bradley, 53 Wn. App. 167, 169, 765 P.2d 1329 (1989). In enacting the FAA, Congress intended to provide parties who agree to arbitration, a less costly and efficient means to timely resolve disputes. The Act requires courts to compel arbitration when a party files a motion to compel. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217, 105 S.Ct. 1238, 1240, 84 L.Ed. 2d 158 (1985). Because waiver of the right to arbitration is not favored, the party opposing arbitration has a heavy burden of proof. But while arbitration agreements are viewed favorably and there is a strong presumption they are binding and enforceable, a contractual right to demand arbitration can be waived. And, when a party does not de
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