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Blueberry Place Homeowners Association v. Northward Homes2/14/2005
Concurring: Anne Ellington, Ronald Cox
PUBLISHED OPINION - Motion to publish granted March 23, 2005
MacDonald-Miller Residential, Inc. (MacDonald-Miller), one of the subcontractors for a condominium construction project, appeals the trial court's award of attorneys' fees and costs in favor of Northward Construction Company (Northward), the general contractor based on the theory of equitable indemnity. Northward cannot recover attorneys' fees and costs under the theory of equitable indemnity or the "ABC rule" if, in addition to the wrongful act or omission of MacDonald-Miller, there are other reasons why Northward was sued by the homeowners. Tradewell Group, Inc. v. Mavis, 71 Wn. App. 120, 857 P.2d 1053 (1993). The defective hydronic radiant heating system installed by MacDonald-Miller was not the only reason Northward was sued by the condominium homeowners. The trial court erred in ruling as a matter of law that Northward was entitled to an award of attorneys' fees and costs for defending the homeowners' claims under an equitable indemnity theory. We reverse and remand.
FACTS
Northward was the general contractor for Blueberry Place, a 57 unit condominium development. Northward contracted with MacDonald-Miller to design and install a hydronic radiant heating system. The subcontract required MacDonald-Miller to design and install the heating system "in a first-class and workmanlike manner to the satisfaction of" Northward and to indemnify Northward for loss or damage. MacDonald-Miller used plastic pipes manufactured by Plasco Manufacturing Ltd. (Plasco) for the hydronic radiant heating system it installed in the Blueberry Place condominiums.
Starting in June 2000, Blueberry Place homeowners reported heating system tube ruptures to MacDonald-Miller. In December 2001, the Blueberry Homeowners Association and the individual homeowners (collectively, "homeowners") filed a lawsuit against Northward, MacDonald-Miller, Plasco, and Blueberry Place Communities, L.P. The homeowners alleged the construction defects included "water penetration and damage at walls, windows and roofs; cracking, leaking and sagging foundations, drainage problems, {and} heating and plumbing defects, including hot water heating tank deterioration and tube ruptures." The homeowners claimed Northward and MacDonald-Miller were liable for breach of contract and warranties, misrepresentation, negligent construction, and Consumer Protection Act and Product Liability Act violations. While the terms of MacDonald-Miller's subcontract with Northward required MacDonald-Miller to pay Northward for any expense that was the result of MacDonald-Miller's failure to comply with the terms of the agreement, the subcontract does not contain a provision for attorneys' fees or for recovery of attorneys' fees in the event of litigation.
In October 2002, Northward filed a third-party complaint and cross claims against MacDonald-Miller alleging breach of contract and requesting MacDonald-Miller defend and indemnify Northward against the homeowners' claims for the defective heating system. In September 2003, Northward filed an amended fourth-party complaint against MacDonald-Miller, alleging misrepresentation, unjust enrichment and constructive trust, common law indemnity and subrogation and violation of the Consumer Protection Act.
On October 9, 2003, Northward settled all claims with the homeowners, "including those arising out of the hydronic heating systems." As part of the settlement, Northward assigned its claims against MacDonald-Miller to the homeowners, but reserved its claim for the attorneys' fees and litigation costs related to defending the home
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