Donatelli v. D.R. Strong Consulting Eng'rs, Inc.

FILE
IN CLERKS OFFICE
11J1REME COURT, STATE OF WASHING10tl
OATE .NOV 1 4 2013

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~onalc! R. Carpenier
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STEVE and KAREN DONATELLI, )
a married couple, )
)
Respondents, ) No. 86590-6
)
v. ) ENBANC
)
D.R. STRONG CONSULTING )
NOV 14 2013
Filed: -----------------
ENGINEERS, INC., a Washington )
corporation, )
)
Petitioner. )
________________________)
FAIRHURST, J.-Steve and Karen Donatelli hired D.R. Strong Consulting

Engineers Inc. to help the Donatellis develop their real property. Before

development of the property could be completed, however, the Donatellis suffered

substantial financial losses and lost the property in foreclosure. The Donatellis

sued D.R. Strong for breach of contract, violation of the Consumer Protection Act

(CPA), chapter 19.86 RCW, negligence, and negligent misrepresentation. D.R.

Strong moved for partial summary judgment on the CPA and negligence claims.
Donatelli v. D.R. Strong, No. 86590-6

D.R. Strong argued that the negligence claims must be dismissed under the

economic loss rule because the relationship between the parties was governed by

contract and the damages claimed by the Donatellis were purely economic. The

trial court and Court of Appeals held that as a matter of law, the Donatellis'

negligence claims were not barred. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

The Donatellis consulted with and hired D.R. Strong to help the Donatellis

develop their King County real property into two short plats. According to Steve

Donatelli, D.R. Strong's representatives orally agreed to help the Donatellis with

the county permitting process and to manage the project "through to [the] final

recording of the short plats." Clerk's Papers (CP) at 65. In their complaint, the

Donatellis alleged that D.R. Strong agreed to:

a. Perform the necessary surveys and analyses;
b. Create the required plans for, inter alia, soil erosion, storm water
drainage;
c. Prepare the necessary reports and County permit applications; and
d. Take all other actions necessary to get the short plats recorded with
King County so that Donatelli could build houses on each lot.

CP at 2. According to the Donatellis, D.R. Strong represented that it would be able

to finish the project within "approximately one and [one-half] years, if not less

time." CP at 4.

D.R. Strong's first involvement in the project was apparently helping the

Donatellis apply for preliminary approval for the project with King County
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Donatelli v. D.R. Strong, No. 86590-6

pursuant to King County Code 19A.08.150. King County granted preliminary

approval on October 4, 2002. In its letter granting preliminary approval, the county

noted that the "preliminary approval is valid for a period of 60 months." CP at 28.

On October 11, 2002, D.R. Strong sent the Donatellis a written contract for

engineering services entitled "Revised Proposal for Engineering Services." CP at

21. In the contract, D.R. Strong agreed to perform six phases of engineering

services in exchange for an estimated fee totaling $33,150. The contract did not

reflect whether D.R. Strong agreed to provide managerial services or to oversee the

day-to-day operation of the project. The contract limited D.R. Strong's

professional liability to $2,500 or its professional fee, whichever was greater.

Steve Donatelli apparently signed the contract on October 31, 2002, although he

now claims that he did not know what he was signing.

According to the Donatellis, between October 2002 and October 2007, D.R.

Strong assumed a managerial role over the project and worked closely with other

contractors, builders, and vendors involved with the project. See CP at 67 (D.R.

Strong "ran the daily operations of the Project."); id. at 68 (D.R. Strong "[was]

running the show."). Although in the written contract D.R. Strong estimated its fee

would be $33,150, D.R. Strong allegedly charged the Donatellis "approximately

$120,000 in costs and fees" over the course of the project. CP at 2.

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Donatelli v. D.R. Strong, No. 86590-6

In October 2007, the preliminary approval expired and the project was still

not complete. The expiration of the preliminary approval came as a complete

surprise to the Donatellis. According to Steve Donatelli, employees ofD.R. Strong

"apologized many times, said that they screwed up, and that they would make

everything right." CP at 67. D.R. Strong began the process of obtaining a new

preliminary approval for the project. Before D.R. Strong could obtain a new

preliminary approval, however, the Donatellis suffered substantial financial losses

and eventually lost the property in foreclosure.

The Donatellis sued D.R. Strong, claiming damages in excess of $1.5

million and alleging breach of contract, CPA violations, negligence, and negligent

misrepresentation. D.R. Strong moved for partial summary judgment on the CPA,

negligence, and negligent misrepresentation claims. D.R. Strong argued that the

economic loss rule barred the Donatellis' negligence claims. The trial court denied

summary judgment on the two negligence claims but granted summary judgment

on the CPA claims. The trial court found that "professional negligence claims can

be stated even in the context of a contractual relationship." CP at 95.

The Court of Appeals affirmed, holding that the independent duty doctrine

did not bar the Donatellis from bringing negligence claims against D.R. Strong

because professional engineers owe duties to their client independent of any

contractual relationship. Donatelli v. D.R. Strong Consulting Eng 'rs, Inc., 163

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Donatelli v. D.R. Strong, No. 86590-6

Wn. App. 436, 443, 261 P.3d 664 (2011). We granted D.R. Strong's petition for

review. Donatelli v. D.R. Strong Consulting Eng'rs, Inc., 173 Wn.2d 1025, 272

P.3d 851 (2012).

II. ISSUES

A. Did the trial court properly deny summary judgment as to the Donatellis'
negligence claim when there were genuine issues of material fact regarding
the scope ofD.R. Strong's contractual obligations to the Donatellis?

B. Did the trial court properly deny summary judgment as to the Donatellis'
negligent misrepresentation claim when the Donatellis alleged D.R. Strong
misrepresented the time and expense necessary to complete the project and
such representations induced the Donatellis to contract with D.R. Strong?

III. STANDARD OF REVIEW

Typically, we review an order on summary judgment de novo, engaging in

the same inquiry as the trial court. Mohr v. Grantham, 172 Wn.2d 844, 859, 262

P.3d 490 (2011). Summary judgment is appropriate when "there is no genuine

issue as to any material fact and ... the moving party is entitled to a judgment as a

matter of law." CR 56(c). In this case, the trial court did not consider whether

there were genuine issues of material fact underlying D.R. Strong's motion for

summary judgment because the motion presented a purely legal question-does

the economic loss rule bar the Donatellis from bringing claims of negligence and

negligent misrepresentation against D.R. Strong? We review alleged errors of law

de novo. Jongeward v. BNSF Ry., 174 Wn.2d 586, 592, 278 P.3d 157 (2012)

(citing State v. Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155 (2001)). To the
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Donatelli v. D.R. Strong, No. 86590-6

extent we consider factual issues in this case, we consider all facts and reasonable

inferences in the light most favorable to the Donatellis, the nonmoving party.

Dowler v. Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 484, 258 P.3d 676

(2011).

IV. ANALYSIS

The question D.R. Strong presented before the trial court and the Court of

Appeals was whether the economic loss rule barred the Donatellis' negligence and

negligent misrepresentation claims against D.R. Strong. Both the trial court and the

Court of Appeals found, as a matter of law, that the Donatellis' negligence claims

should not be dismissed. We agree.

Regarding the Donatellis' negligence claim, it is unclear from the record

what professional obligations D.R. Strong assumed toward the Donatellis based on

oral representations, the written contract, and D.R. Strong's affirmative conduct.

Regarding the Donatellis' negligent misrepresentation claim, we find the duty to

avoid misrepresentations that induce a party to enter into a contract arise

independently of the contract. Because D.R. Strong's duty to avoid negligent

misrepresentation arose independently of the contract, the independent duty

doctrine does not bar the Donatellis' negligent misrepresentation claim.

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Donatelli v. D.R. Strong, No. 86590-6

A. Negligence

The Court of Appeals found that the independent duty doctrine did not bar

the Donatellis' claim for negligence. We agree but find that the independent duty

doctrine cannot apply to this case because the record does not establish the scope

ofD.R. Strong and the Donatellis' contractual duties.

Historically, Washington applied the economic loss rule to bar a plaintiff

from recovering tort damages when the defendant's duty to the plaintiff was

governed by contract and the plaintiff suffered only economic damages. Alejandre

v. Bull, 159 Wn.2d 674, 683, 153 P.3d 864 (2007). The economic loss rule

"attempted to describe the dividing line between the law of torts and the law of

contracts." Eastwood v. Horse Harbor Found., Inc., 170 Wn.2d 380, 385, 241 P.3d

1256 (2010).

In Eastwood, a majority of this court concluded that the term "economic loss

rule" was a misnomer and renamed the rule the "independent duty doctrine" to

more accurately describe how this court determines whether one contracting party

can seek tort remedies against another party to the contract. The independent duty

doctrine continues to '"maintain the boundary between torts and contract"' in the

place ofthe economic loss rule. Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d

157, 165, 273 P.3d 965 (2012) (quoting Eastwood, 170 Wn.2d at 416 (Chambers,

J., concurring)). The court has limited the application of the independent duty

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doctrine to a "narrow class of cases ... claims arising out of construction on real

property and real property sales." Elcon, 174 Wn.2d at 165.

Under the independent duty doctrine, "[a]n injury is remediable in tort if it

traces back to the breach of a tort duty arising independently of the terms of the

contract." Eastwood, 170 Wn.2d at 389. The analytical framework provided by the

independent duty doctrine is only applicable when the terms of the contract are

established by the record. To determine whether a duty arises independently of the

contract, we must first know what duties have been assumed by the parties within

the contract. If a contract term (such as a term defining the scope of the parties'

contractual duties) is ambiguous, the trial court must ascertain the intent of the

parties. Berg v. Hudesman, 115 Wn.2d 657, 663, 801 P.2d 222 (1990). "Contract

interpretation is normally a question of fact for the fact-finder." Spradlin Rock

Prods., Inc. v. Pub. Util. Dist. No. 1 of Grays Harbor County, 164 Wn. App. 641,

654, 266 p .3d 229 (20 11 ).

This case makes obvious the inability of the independent duty doctrine to

provide an analytical framework when the scope of contractual duties are in

dispute. Generally, "the foundation of any liability analysis for . . . design

professional[s] rests in contract." ARCHITECT AND ENGINEER LIABILITY: CLAIMS

AGAINST DESIGN PROFESSIONALS§ 1.05, at 7 (Kevin R. Sido ed., 3d ed. 2006). In a

contract, design professionals and their clients can allocate risks and ensure against

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Donatelli v. D.R. Strong, No. 86590-6

"expected liability exposure." Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist.

No. 1, 124 Wn.2d 816, 826-27, 881 P.2d 986 (1994).

But design professionals also owe duties to their clients and the public to act

with reasonable care, which can sometimes give rise to a tort duty independent of

the contract. See Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wn.2d

442, 461, 243 P.3d 521 (2010) (Engineers have an independent duty to "use

reasonable care . . . with respect to risks of physical damages to [physical

property]."); Jarrard v. Seifert, 22 Wn. App. 476, 479, 591 P.2d 809 (1979)

(engineers undertaking engineering services in this state have a common law duty

of reasonable care); Murray H. Wright & Edward E. Nicholas, III, The Collision of

Tort and Contract in the Construction Industry, 21 U. RICH. L. REv. 457, 464

(1986-87) ("[D]esign professionals owe a tort duty to the general public to take

reasonable care to avoid causing foreseeable personal injuries or property

damage." (citing RESTATEMENT (SECOND) OF TORTS§ 324A (1965))).

Regardless of whether a client's claim is framed as a breach of contract or a

tort claim, however, "the first step in analyzing a professional malpractice claim is

to determine the scope of the professional obligations." ARCHITECT AND ENGINEER

LIABILITY, supra,§ 501[E], at 94. The scope of engineers' professional obligations

should be set forth in written contracts between engineers and their clients. See id.

(recommending that contracts between design professionals and their clients

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Donatelli v. D.R. Strong, No. 86590-6

contain detailed descriptions of the scope of the professionals' services). A

contract may assume an engineer's common law duty to act with reasonable care.

See Seattle W. Indus., Inc. v. David A. Mowat Co., 110 Wn.2d 1, 10, 750 P.2d 245

(1988) ("The scope of an engineer's common law duty of care extends at least as

far as the duties assumed by him in the contract with the owner."). Engineers may

also assume additional professional obligations by their "affirmative conduct." I d.

In this case, the record does not establish the scope of D.R. Strong's

professional obligations to the Donatellis. The Donatellis allege that D.R. Strong

orally promised to manage the short plat project and oversee the work of other

subcontractors involved with the project. 1 The Donatellis also allege that D.R.

Strong promised to take care of the necessary paperwork and permitting processes.

D.R. Strong, however, seems to argue that it only agreed to provide the six phases

of engineering services outlined in the written contract?

It is also unclear whether D.R. Strong assumed additional duties to the

Donatellis by virtue of its affirmative conduct. From the affidavits provided by the

1
"The interpretation of an oral contract is generally not appropriate for summary
judgment because the existence of an oral contract and its terms usually depends on the
credibility of witnesses testifying to specific fact-based dealings which, if believed, would
establish a contract and the contract's terms." Spradlin Rock Prods., 164 Wn. App. at 655.
2
Conspicuously absent from the written contract is any type of merger or integration
clause providing that the written contract supersedes any prior agreements between the parties.
Such a clause would tend to diminish the likelihood of the Donatellis establishing the existence
of an oral contract. See ARCHITECT AND ENGINEER LIABILITY, supra, at 8 ("A written agreement
with a 'merger clause' or an 'integration clause' can prevent the opposite side from attempting to
explain or embellish contractual terms.").
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Donatelli v. D.R. Strong, No. 86590-6

Donatellis, it appears that at least two contractors involved with the project agree

that D.R. Strong oversaw work performed by at least some subcontractors.

According to the Donatellis' general contractor, D.R. Strong would "advise and

direct [the contractor's] efforts in fixing day-to-day problems." CP at 84. Another

subcontractor hired by the Donatellis stated that D.R. Strong "coordinated the

different parts of the job." CP at 80. The written contract, however, does not

appear to require D.R. Strong to provide such services. Furthermore, the significant

discrepancy between D.R. Strong's estimated fee, and the fee it allegedly charged

the Donatellis, might be evidence that D.R. Strong performed additional work not

contemplated by the written agreement.

Given that the record does not reflect what the Donatellis and D.R. Strong

agreed to, and what duties D.R. Strong assumed through its affirmative conduct, it

is impossible to say at this point what professional obligations D.R. Strong owed to

the Donatellis-contractually or otherwise. The trial court properly denied D.R.

Strong's motion for summary judgment on the Donatellis' negligence claim.

Because we do not know the scope of D.R. Strong's contractual obligations, we

cannot determine if any of D.R. Strong's duties to the Donatellis arose

independently of the contract. We affirm the Court of Appeals.

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Donatelli v. D.R. Strong, No. 86590-6

B. Negligent misrepresentation

The trial court and the Court of Appeals found that the independent duty

doctrine did not bar the Donatellis' claim for negligent misrepresentation. We

agree because the duty to avoid misrepresentations that induce a party to enter into

a contract arises independently of the contract.

Generally, Washington recogmzes a tort claim for negligent

misrepresentation based on the Restatement (Second) of Torts § 522(1) (1977). 3

Van Dinter v. Orr, 157 Wn.2d 329, 332-33, 138 P.3d 608 (2006); 16 DAVID K.

DEWOLF & KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE

§ 18.10 (3d ed. Supp. 2012). The former economic loss rule often barred a plaintiff

from bringing a negligent misrepresentation claim against a defendant who had

contracted with the plaintiff against potential economic liability. See, e.g.,

Berschauer/Phillips, 124 Wn.2d at 828 (general contractor barred from asserting

negligent misrepresentation claim against design professionals); Alejandre, 159

Wn.2d at 677 (buyers of home barred from asserting negligent misrepresentation

3
A plaintiff claiming negligent misrepresentation must prove by clear, cogent,
and convincing evidence that (1) the defendant supplied information for the
guidance of others in their business transactions that was false, (2) the defendant
knew or should have known that the information was supplied to guide the
plaintiff in his business transactions, (3) the defendant was negligent in obtaining
or communicating the false information, (4) the plaintiff relied on the false
information, (5) the plaintiffs reliance was reasonable, and (6) the false
information proximately caused the plaintiff damages.
Ross v. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007) (citing Lawyers Title Ins. Corp. v.
Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002)).
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claim against seller); Griffith v. Centex Real Estate Corp., 93 Wn. App. 202, 211-

13, 969 P.2d 486 (1998) (homeowners barred from asserting negligent

misrepresentation claim against builder-vendor).

But since adopting the independent duty doctrine, the court has emphasized

that in some circumstances, a negligent misrepresentation claim may be viable

even when only economic damages are at stake and the parties contracted against

potential economic liability. In Jackowski v. Borchelt, 174 Wn.2d 720, 738, 278

P.3d 1100 (2012), we noted that, like a claim for fraud, a negligent

misrepresentation claim might exist "to the extent the duty to not commit negligent

misrepresentation is independent of the contract." 4 This rule is narrower than the

rule adopted in some jurisdictions where the duty to . avoid negligent

misrepresentation always arises independently of the contract. See, e.g., Presnell

Constr. Managers, Inc. v. EH Constr., LLC, 134 S.W.3d 575, 582 (Ky. 2004) ("by

adopting [RESTATEMENT] § 522, we agree that the tort of negligent

misrepresentation defines an independent duty for which recovery in tort for

economic loss is available"). In essence, the rule expressed in Jackowski

4
Since Jackowski, the Court of Appeals has correctly applied the independent duty
doctrine to conclude that a trial court should not "automatically dismiss" a plaintiffs negligent
misrepresentation claim "based solely on the existence of a contract between [the parties]." Key
Dev. Inv., LLC v. Port ofTacoma, 173 Wn. App. 1, 24, 292 P.3d 833 (2013) (holding that the
independent duty doctrine did not bar a property owner's negligent misrepresentation claim
against a potential buyer of property when the trial court made no findings regarding whether the
buyer's alleged duties arose independently ofthe contract).

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Donatelli v. D.R. Strong, No. 86590-6

recognizes that there are some circumstances where the duty to avoid negligent

misrepresentation might arise independently of the contract.

One circumstance where the duty to avoid negligent misrepresentation might

arise independently of the contract is where one party, through misrepresentations,

induces another to enter into a contractual relationship. See, e.g., Haberman v.

Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 163-64, 744 P.2d 1032, 750 P.2d

254 (1987) (trial court erred m dismissing bondholders' negligent

misrepresentation claim against design engineers when the engineers' statements

induced the bondholders to purchase bonds issued to finance construction of

nuclear power plant); Keller v. A.O. Smith Harvestore Prods., Inc., 819 P.2d 69, 72

(Colo. 1991) ("a contracting party's negligent misrepresentation of material facts

prior to the execution of an agreement may provide the basis for an independent

tort claim asserted by a party detrimentally relying on such negligent

misrepresentations"); Gilliland v. Elmwood Props., 301 S.C. 295, 301, 391 S.E.2d

577 (1990) (recognizing owner's negligent misrepresentation claim against

architect when architect's misrepresentations induced the owner to enter a

contract).

That is not to say that the duty to avoid negligent misrepresentation cannot

be assumed in a contract. For example, a real estate contract may be written to

assume the seller's duty to avoid misrepresentations to the buyer, thus precluding

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Donatelli v. D.R. Strong, No. 86590-6

the buyer from later bringing a negligent misrepresentation claim against the seller.

See, e.g., Alejandre, 159 Wn.2d at 679 (buyer's negligent misrepresentation claim

against seller barred when seller disclosed all known defects and buyers

acknowledged their own duty to "'pay diligent attention to any material defects"'

when such defects could be discovered through "'diligent attention and

observation"' (quoting Ex. 5)); Snyder v. Lovercheck, 992 P.2d 1079, 1083 (Wyo.

1999) (purchaser's negligent misrepresentation claim against seller barred when

purchase agreement contained an "'as is' clause, a merger clause, a liberal

inspection clause, ... a specific objection procedure," and provided, "'Purchaser is

not relying upon any representations of the Seller"' (quoting contract)).

In this case, the trial court properly denied summary judgment on the

Donatellis' negligent misrepresentation claim because D.R. Strong's duty to avoid

misrepresentations that induced the Donatellis to enter into a contract arose

independent of the contract. Specifically, the Donatellis allege that D.R. Strong

"originally represented to [them] that the Project should be able to be completed

within approximately one and 1/2 years, if not less time ... and that the Project

should not take more than $50,000 to complete." CP at 2. Based on these

representations, the Donatellis "retain[ed] [D.R. Strong] to handle the Project." Id.

We make no ruling on whether the Donatellis will eventually prevail on their

negligent misrepresentation claim. We hold only that D.R. Strong's duty to avoid

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Donatelli v. D.R. Strong, No. 86590-6

negligent misrepresentations that induced the Donatellis into hiring D.R. Strong

arose independently of the contract. The independent duty doctrine does not bar the

Donatellis from asserting their negligent misrepresentation claim. We affirm the

Court of Appeals.

V. CONCLUSION

The independent duty doctrine is an analytical framework that is used to

determine whether one party to a contract can bring tort claims against another

party to the contract. The independent duty doctrine will allow a plaintiff to pursue

tort claims against a defendant when the plaintiff can prove defendant's "breach of

a tort duty arising independently of the terms of the contract." Eastwood, 170

Wn.2d at 3 89. To determine whether a duty arises independently of the contract,

we must first know what duties have been assumed by the parties within the

contract.

Because there are genuine issues of material fact regarding the scope of D.R.

Strong's contractual duties to the Donatellis, we cannot apply the independent duty

doctrine to say, one way or the other, whether D.R. Strong had a duty independent

of the contract to avoid professional negligence. However, D.R. Strong's duty to

avoid misrepresentations that induced the Donatellis to contract with D.R. Strong

in the first place do arise independent of any contract the parties might have agreed

to. The Donatellis' negligence claims cannot simply be dismissed on the narrow

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Donatelli v. D.R. Strong, No. 86590-6

legal grounds argued by D.R. Strong. We affirm the trial court and Court of

Appeals and remand for further proceedings consistent with this opinion.

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Donatelli v. D.R. Strong Consulting Eng'rs, Inc., No. 86590-6

WE CONCUR:

I

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Donatelli v. D.R. Strong Consulting Eng 'rs, Inc.

No. 86590-6

MADSEN, C.J. (dissenting in part)-Partial summary judgment in favor of

defendant D.R. Strong Consulting Engineers Inc. should have been granted on both of

Steven and Karen Donatellis' negligence claims. There are several grounds on which the

court could reach this conclusion as a matter of law. Instead, the majority comes up with

a factual issue not raised or addressed by either party, worrying that the written contract

may not set out all ofD.R. Strong's professional services and other services may have

arisen from oral agreements or have been assumed by D.R. Strong. The majority decides

that until a determination of the scope of professional services is made, it is impossible to

decide whether the "independent duty doctrine" applies to the Donatellis' negligence

claims.

The factual inquiry called for by the majority is unnecessary because it is not

material to the "independent duty doctrine" that the majority seeks to apply. It will also

unduly delay resolution of this litigation.

In addition, the independent duty doctrine that the majority seeks to apply cannot

be harmonized with the parties' written agreement or with settled principles of contract

law.
No. 86590-6
Madsen, C.J. (dissenting)

The court should decide this case on one of several legitimate grounds that justify

partial summary judgment in favor ofD.R. Strong on the negligence and negligent

misrepresentation causes of action. First, this case is in all relevant respects

indistinguishable from Berschauer/Phillips Construction Co. v. Seattle School District

No.1, 124 Wn.2d 816, 881 P.2d 986 (1994), which has not been overruled and which the

court should conclude is controlling precedent.

Second, when the parties' relationship is governed by a professional engineering

services contract, the questions that should be answered are (a) whether the parties'

contract encompasses the risk of harm that is claimed, i.e., is the harm or injury the kind

that results when the contractual promises are not performed in accord with the parties'

contractual expectation interests and (b) does the contract govern the remedies when

breach occurs? Here, the plaintiffs' claims are founded on breach of contract and the

remedies, if any, should be limited to contractual remedies. The Donatellis do not assert

property damage or personal injury, the kind of harm that should be remedied outside the

contractual arrangement.

These first two grounds are within the scope of the issue raised by D.R. Strong

when it sought discretionary review of the trial court's denial of summary judgment on its

negligence and negligent misrepresentation claims.

Third, and regardless of any other analysis, the plaintiffs' tort claims are precluded

by the limitation of professional liability in the parties' contract. The professional

liability limitation applies by its terms to "any injury or loss on account of any error,

2
No. 86590~6
Madsen, C.J. (dissenting)

omission, or other professional negligence." Clerk's Papers (CP) at 26 (emphasis added).

The contract expressly limits D.R. Strong's "liability to the Client ... arising out of the

performance of[its] professional services." ld. (emphasis added). This liability

limitation applies to all professional services regardless of whether they are set out in the

written agreement. Giving effect to the parties' express contractual agreement to limit

D.R. Strong's liability resolves the negligence and negligent misrepresentation claims. 1

While this third basis is not argued it can be determined as a matter of law based

on settled principles of contract law and the record, which includes the written contract

that was brought to the attention of the trial court. The provision limiting professional

liability unambiguously limits liability arising out ofD.R. Strong's performance of its

professional services.

I strongly disagree with the majority's sua sponte creation of an issue that inflates

this litigation without any meaningful consequence to the case. This court could

effectively and fairly answer the question whether partial summary judgment should have

been granted on the negligence and negligent misrepresentation claims without delaying

this case to resolve the unnecessary question posed by the majority.

Analysis

The majority alone raises the issue of the scope ofD.R. Strong's professional

services, believing this to be necessary in order to decide whether the Donatellis'

negligence and negligent misrepresentation claims can go forward. As noted, this is not

1
As explained below, any oral terms in conflict with the limitation of liability provision cannot
be given effect.

3
No. 86590-6
Madsen, C.J. (dissenting)

an issue raised by the parties; none of the appellate briefing filed by either party in this

court or in the Court of Appeals raises or argues the issue the majority now finds

dispositive of this review. Generally, we do not reach issues not raised by the parties.

Adler v. Fred Lind Manor, 153 Wn.2d 331, 348 n.8, 103 P.3d 773 (2004); State v. Taylor,

150 Wn.2d 599, 603 n.2, 80 P.3d 605 (2003).

The court does have '"inherent authority to consider issues not raised by the

parties if necessary to reach a proper decision."' Humphrey Indus., Ltd. v. Clay St.

Assocs., LLC, 176 Wn.2d 662,671,295 P.3d 231 (2013) (quotingAlverado v. Wash. Pub.

Power Supply Sys., 111 Wn.2d 424, 429, 759 P.2d 427 (1988)). The key is that the

authority exists to reach a correct and fitting resolution of the case. But here the

majority's consideration of the issue it raises does not lead to a proper decision, and in

fact the opposite is true.

First, whether the scope of professional services goes beyond the written contract

makes no difference, either to the three grounds I propose that would properly resolve

this case or to the question of whether the "independent duty doctrine" applies here, the

latter being the question the majority says it cannot answer. Second, because there are

valid bases on which to fully resolve the negligence and negligent misrepresentation

claims, it is needless to extend this litigation. Third, the majority's approach is unfair to

the parties.

This case involves a contract for engineering services. The Donatellis do not

assert claims for physical harm to persons or property. Rather, their asserted negligence

4
No. 86590-6
Madsen, C.J. (dissenting)

claims are based on the failure to complete the project as contracted for. This being the

case, precedent dictates that their remedies are contractual. In Berschauer/Phillips, a

general contractor who had been awarded the construction contract for school renovation

and construction asserted direct and assigned tort claims against the architect and

structural engineer, claiming that the plans were inaccurate and defective and this

negligence led to construction delays and cost overruns. The contractor had also been

assigned the school district's contract claims against the architect.

This court held that "the economic loss rule does not allow a general contractor to

recover purely economic damages from a design professional in tort." 124 Wn.2d at 833.

The court recognized that in the design-construction industry contractual arrangements

are made based on expected liability exposure. The court explained that its holding

ensures that the allocation of risk and determination of potential liability in the future is

what the parties bargain for by contract. !d. at 826. "A bright line distinction between

the remedies offered in contract and tort with respect to economic damages also

encourages parties to negotiate toward the risk distribution that is desired or customary.

We preserve the incentive to adequately self-protect during the bargaining process." !d.

at 827.

Here, the subject matter is preparing engineering plans and related services for

development of the Donatellis' land into two short plats, similar to the design

professionals' obligations in Berschauer/Phillips. There is no meaningful difference

5
No. 86590-6
Madsen, C.J. (dissenting)

between the services in the two cases, nor are the tort claims different in any meaningful

way. In both cases, the tort claims rest on alleged delay and excess costs.

Further, the parties' contract reflects exactly the kind of risk distribution addressed

in Berschauer/Phillips, with D.R. Strong expressly contracting to adequately "self-

protect" through a contractual limitation of professional liability, in addition to the

contractual terms setting out the parties' obligations under the contract. The parties'

contract expressly limits liability to the amount of fees paid, while permitting the

Donatellis to secure waiver of this limit by paying an additional amount, which they did

not do? The parties expressly allocated the risks associated with the subject of their

contractual relationship.

The injury or harm involved in Berschauer/Phillips and the injury or harm alleged

in the present case is of the same kind, i.e., increased construction costs and loss of

2
The contract states:
LIMITATIONS OF PROFESSIONAL LIABILITY: DRS' [(D.R. Strong's)]
findings, recommendations, specifications, or professional opinions will be
presented, within the limits prescribed by the Client [(the Donatellis)], after being
prepared in accordance with generally accepted professional engineering and
surveying practice. DRS makes no other warranty, either expressed or implied.
For any injury or loss on account of any error, omission, or other professional
negligence, the Client agrees to limit DRS and/or its professional employees'
liability to the Client and to all agents, contractors, and subcontractors arising out
of the performance of our professional services, such that the total aggregate
liability to all those named shall not exceed $2,500, or our fee, whichever is
greater. In the event the Client does not wish to limit our professional liability to
this sum, we shall waive this limitation upon the Client's written request made at
the time of the initial authorization on a given project, provided that the Client
agrees to pay for this waiver an additional 5% of our total fee or $500, whichever
is greater.
CP at 26.

6
No. 86590-6
Madsen, C.J. (dissenting)

expectation interests under the contract, the kind of harm or injury for which contract

remedies are more appropriate.

In contrast, and as we have recognized, tort law traditionally provides remedies for

injuries classified as physical harm. Stuart v. Coldwell Banker Commercial Grp., 109

Wn.2d 406, 420, 7 45 P .2d 1284 (1987) (citing WILLIAM L. PROSSER, HANDBOOK ON THE

LAW OF TORTS§ 101, at 665 (4th ed. 1971)); see RESTATEMENT (THIRD) OF TORTS§ 1

(2000) ("Issues And Causes Of Action addressed By This Restatement": "This

Restatement ... applies to all claims (including lawsuits and settlements) for death,

personal injury (including emotional distress or consortium), or physical damage to

tangible property."). 3 Neither Berschauer/Phillips nor the present case involves harm or

injury to persons or physical damage to property.

This case is legally indistinguishable from Berschauer/Phillips.

The majority maintains, however, that the ultimate issue that has to be resolved is

whether the tort claims are permissible under the independent duty doctrine, explaining

that the economic loss doctrine analysis used in Berschauer/Phillips is no longer the

appropriate analysis. The majority reiterates the statement from the lead opinion in

Eastwood v. Horse Harbor Foundation, Inc., 170 Wn.2d 380, 387, 241 P.3d 1256 (2010),

that the term '"economic loss rule' was a misnomer." Majority at 7.

3
See also RCW 4.22.070(1), a provision of the 1986 tort reform act, which requires the trier of
fact to "determine the percentage of the total fault which is attributable to every entity which
caused the claimant's damages," including "the claimant or person suffering personal injury or
incurring property damage," with an exception not relevant here. (Emphasis added.)

7
No. 86590-6
Madsen, C.J. (dissenting)

However, in Affiliated FM Insurance Co. v. LTK Consulting Services, 170 Wn.2d

442, 450 n.3, 243 P.3d 521 (2010), the lead opinion stated that the decisions in Eastwood

and Affiliated FM"leave intact our prior cases where we have held a tort remedy is not

available in a specific set of circumstances." Thus, in Eastwood and Affiliated FM the

court did not purport to change the fundamental underpinnings of our precedent but

instead embarked on an effort to clarify prior case law and provide what the court thought

to be a clearer approach for deciding when tort claims may be pursued, notwithstanding

the fact that the parties' dealings arise from their contractual relationship. See majority at

7. Eastwood and Affiliated FM indicate that if circumstances are the same, the same

result should be obtained under the independent duty doctrine as would have been

obtained prior to these decisions. We held in Berschauer/Phillips that tort remedies are

not available in the present circumstances and therefore Berschauer/Phillips should

control on the issue whether tort duties may be pursued. Thus, this case can be decided

on the basis that under Berschauer/Phillips the tort claims asserted by the Donatellis

cannot be pursued.

As a second method for resolving this case, the court could use it to correct the

court's recent analysis for deciding whether a contracting party can pursue tort claims

arising out of the parties' contractual relationship. The "independent duty doctrine,"

unlike the economic loss rule, suffers from a significant defect in that it springs from the

wrong analytical starting point. The analysis under this doctrine implicitly begins with

the question, why not allow tort remedies?-starting, and ending, with what tort duties

8
No. 86590-6
Madsen, C.J. (dissenting)

might be found. But when the parties' relationship is contractual, the more important

questions are whether the dispute or claim is within the scope of the contract and if so

why allow any remedies outside the contract? At the same time, the nature of the risk of

harm is an integral part of the inquiry, as the court recognized in Berschauer/Phillips and

in the lead opinion in Affiliated FM. Personal injury and physical damage to property are

not risks traditionally remedied by contract and indeed the opposite is true.

In these respects, therefore, the economic loss rule, unlike the "independent duty

doctrine" as explained by the majority, more appropriately focuses on the parties'

contractual relationship and asks what is covered by the contract, and treats personal

injury and physical harm as appropriately remedied in tort. These basic concepts have

been core principles of the economic loss rule, as the court said in Alejandre v. Bull, 159

Wn.2d 674, 683-84, 153 P.3d 864 (2007):

[T]he purpose of the economic loss rule is to bar recovery for alleged
breach of tort duties where a contractual relationship exists and the losses
are economic losses. If the economic loss rule applies, the party will be
held to contract remedies, regardless of how the plaintiff characterizes the
claims .... The key inquiry is the nature of the loss and the manner in
which it occurs, i.e., are the losses economic losses, with economic losses
distinguished from personal injury or injury to other property.

Importantly, as the majority explains in the present case, this distinction in the

type of loss is retained under the independent duty analysis when contracts for

engineering and other design professional services are involved. The independent duty

analysis applies when the design professional's obligation is to avoid causing foreseeable

personal injuries or property damage. Majority at 9 (explaining case law).

9
No. 86590-6
Madsen, C.J. (dissenting)

The complaint here alleges a breach of contract cause of action, asserting that D .R.

Strong breached the contract by "failing to complete the Project in a timely, competent

and cost effective manner." CP at 3. Significantly, the negligence claims are virtually

identical. The complaint alleges that D.R. Strong was negligent in failing "to complete

the Project in a timely, competent and cost effective manner" by allegedly taking too long

on the project, charging more than originally quoted, and redoing work. !d. at 4. And the

complaint alleges that D.R. Strong negligently misrepresented the amount of time and

cost to complete the work, the representations were false when made, and the Donatellis

justifiably relied on the misrepresentations. !d. at 4-5. Thus, whether couched as a

contract breach or a negligence claim, these causes of action all arise out of the contract

and the alleged failure to meet contractual obligations. They involve no personal injuries

or damage to property.

Ultimately, this case involves a straightforward claim of breach of contract,

despite the Donatellis' efforts to show actionable negligence. The remedies for this

breach are contractual.

Finally, the court can decide this case by giving effect to the professional liability

limitation in the contract. Whether the claims here sound in contract or tort, they fall

within this liability provision. A limitation of liability is a permissible allocation of risk

of negligent acts or omissions; there is no requirement that it apply to contractually based

liability alone. See, e.g., Am. Nursery Prods., Inc. v. Indian Wells Orchards, 115 Wn.2d

10
No. 86590-6
Madsen, C.J. (dissenting)

217, 230, 797 P.2d 477 (1990) (generally, "a party to a contract can limit liability for

damages resulting from negligence").

Moreover, giving effect to a limitation of professional liability provision in a

contract for professional design services effectuates the parties' bargained-for allocation

of risks:

Permitting recovery in tort against a design professional solely for
commercial loss in the construction context often frustrates the parties'
bargained for risk-arrangement and, consequently, their corresponding
economic expectations. For example, tort recovery may allow a party to
recover damages that were otherwise limited or excluded under the
contract. The difference between recovery in tort or contract under these
circumstances may amount to millions of dollars. In other words, tort
remedies rewrite the contract by reallocating the risk of loss, potentially
giving a windfall to the party who prevails under a tort theory for remedies
otherwise limited or unavailable under the contract.

Benjamin J. McDonnell, Finding a Contract in the "Muddle": Tracing the Source of

Design Professionals' Liability in the Construction Context Under Washington's

Independent Duty Doctrine, 48 GONZ. L. REV. 627, 664-65 (2012-2013) (footnotes

omitted).

When reviewing a decision on a motion for summary judgment,"[a] question of

contract interpretation may be determined as a matter of law if it does not turn on the

'credibility of extrinsic evidence or ... a choice among reasonable inferences to be drawn

from extrinsic evidence."' Kofmehl v. Baseline Lake, LLC, 177 Wn.2d 584, 594, 305

P.3d 230 (2013) (quoting Berg v. Hudesman, 115 Wn.2d 657, 668, 801 P.2d 222 (1990)

(quoting RESTATEMENT (SECOND) OF CONTRACT§ 212 (1981))).

11
No. 86590-6
Madsen, C .J. (dissenting)

The contract provision states, in a paragraph headed "LIMITATIONS OF

PROFESSIONAL LIABILITY," "For any injury or loss on account of any error,

omission, or other professional negligence, the Client agrees to limit DRS and/or its

professional employees' liability to the Client and to all agents, contractors, and

subcontractors arising out of the performance of our professional services." CP at 26

(emphasis added). When interpreting contracts, words are generally given their ordinary

meaning and the parties' mutual intent is effectuated. City of Tacoma v. City of Bonney

Lake, 173 Wn.2d 584,590,269 P.3d 1017 (2012). '"[A]ny'" means "'every"' and

"'all."' State v. Sutherby, 165 Wn.2d 870, 881,204 P.3d 916 (2009); State v. Westling,

145 Wn.2d 607, 611, 40 P.3d 669 (2002). The limitation of liability provision is clear in

encompassing professional liability arising from negligently perfo~med professional

services and should be enforced.

The negligent misrepresentation claim should not be treated any differently than

the other negligence claims. Both involve alleged failure to perform the engineering

services in a cost-effective and timely manner. In the case of the misrepresentation

claim, the alleged negligence concerns an alleged failure to accurately represent the

professional services, i.e., how long they would take and what they would cost, thus

falling within the limitation of professional liability provision. 4

4
The Donatellis' negligent misrepresentation claim is not a claim that no valid contract was
formed. Indeed, they assert a cause of action for breach of contract, which is only possible when
an enforceable contract exists. Thus, whether a negligent misrepresentation claim could ever be
a possible ground for claiming that no valid contract was formed is not in question that must be
considered in the present case. This matter is addressed below.

12
No. 86590-6
Madsen, C.J. (dissenting)

The next question that must be resolved is whether the written contract provision

is enforceable. Although this question requires attention to several legal principles, in the

end summary judgment standards, settled contract law principles, and evidence in writing

in the record dictate that the liability limitation is enforceable notwithstanding the

possible existence of oral terms for additional services not set out in the parties' written

contract or assumption of professional services not set out in the written contract.

On review of a denial summary judgment the court engages de novo in the same

inquiry as the trial court. Kofmehl, 177 Wn.2d at 594. All of the facts and inferences

therefrom are construed in favor of the nonmoving party. !d. Summary judgment is

improper if there is a genuine issue as to a material fact, shown by pleadings, depositions,

answers to interrogatories, admissions on file, and affidavits, if any. CR 56( c).

In general, when reviewing a decision on a motion for summary judgment, an

appellate court is to consider only the evidence and issues called to the attention of the

trial court. RAP 9 .12. A reviewing court can decide whether a motion for summary

judgment should be granted on an issue not decided by the trial court if the issue is

supported by the record and is within the pleadings and proof. Plein v. Lackey, 149

Wn.2d 214, 222, 67 P.3d 1061 (2003). The questions whether the Donatellis' tort claims

may be asserted or whether only contract remedies may be pursued were before the trial

court. D.R. Strong submitted the written contract for the trial court's consideration when

deciding the motion for partial summary judgment, and it was thus called to the attention

of the trial court. This brings the contract within the scope of materials that may be

13
No. 86590-6
Madsen, C.J. (dissenting)

considered on review. See, e.g., Mithoug v. Apollo Radio of Spokane, 128 Wn.2d 460,

909 P.2d 291 (1996); cf CR 56( c) (referring to "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any" (emphasis

added)).

As explained, on appellate review the Donatellis plainly have not argued the issue

that is decided by the majority relating to possible oral terms of the parties' contract.

They do, however, allege in their amended complaint that an oral agreement was entered

into in "October of2002." CP at 2. Since they do not refer to a written agreement in the

amended complaint, the implication from the complaint alone is that the parties' contract

is oral. As indicated, however, D.R. Strong submitted the parties' written agreement and

an accompanying cover letter, together appended as exhibit 1 to a declaration that the

order on the motion for partial summary judgment identifies as having been considered

by the trial court. The cover letter is dated October 11, 2002, and identifies itself as

concerning the "Proposal For Engineering- Services [for] Two-Short Plats [o:f:] Lots 2 & 3,

Blk. 5, Jordan's Acre Gardens Addition." Id. at 20. In this letter, D.R. Strong informed

Mr. Donatelli that it was pleased to provide "this revised proposal for engineering

services for the" short plat project, telling him that if he "wish[ ed] to proceed with this

project work," he should "sign and return" the proposal to D.R. Strong "as confirmation

that [he has] read these terms and as [D.R. Strong's] authorization to proceed." !d.

The written contract is titled, in large font on four lines centered near the top of the

page, with considerable blank space on either side, a "REVISED PROPOSAL FOR

14
No. 86590-6
Madsen, C.J. (dissenting)

ENGINEERING SERVICES." !d. at 21. Mr. Donatelli both signed this written contract

and dated it "10/31/02" below D.R. Strong's president's signature of October 11, 2002.

!d. at 25.

In other words, Mr. Donatelli signed the written contract on the very last day of

the very same month in which the amended complaint asserts an oral agreement was

entered into.

Moreover, when Mr. Donatelli was asked if he had a written agreement with D.R.

Strong for services, he testified, "I believe so, yeah." !d. at 10 (Donatelli dep. at 24).

When shown a copy of the contract he also testified that as far as he knew, which he

explained to mean as far as he could remember, it was the agreement he had with D.R.

Strong. He agreed he had signed the written agreement and dated it October 31, 2002,

and testified that he negotiated the scope of the services in the contract. After he

explained that he wanted D.R. Strong to perform services to obtain a recorded short plat,

he was asked if the written contract described all of the paperwork he wanted D.R. Strong

to prepare. He testified that "if there was [sic] any other things needed for the short plat

to be recorded then ... they would add additional services to achieve [his] goal." !d. at

11 (Donatelli dep. at 28-29).

The written agreement contemplates the possibility of such additional services to

those in the contract. Under the heading "PROPOSAL WORK," the contract states that

[c]orrections or revisions that come as a result of the County's or the
Client's inclusion of new concepts, requirements, unpublished policies and
procedures, or previously undiscovered issues are not included in this scope

15
No. 86590-6
Madsen, C.J. (dissenting)

of work. If these types of corrections or revisions are requested, they will
. be addressed as Additional Services as described below.

ld. at 21. The provision in the contract about additional services states that "[i]ssues may

arise during the project review by the various agencies which may not have been included

in the above scope of work, and in such case would require the Client's additional

authorization in order to proceed." I d. at 23.

From the record, the only reasonable conclusion that can be drawn is that if there

was an oral agreement for additional services, it was either subsumed by the written

contract, it modified the written agreement, or it would be additional to the written

contract as Donatelli's deposition testimony and the written contract contemplated might

occur. Absolutely nothing in the record suggests that any oral contract replaced the

written contract.

On summary judgment, "when reasonable minds could reach but one conclusion,

questions of fact may be determined as a matter of law." Hartley v. State, 103 Wn.2d

768, 775, 698 P.2d 77 (1985); accord P.E. Sys., LLC v. CPI Corp., 176 Wn.2d 198, 207,

289 P.3d 638 (2012). Considering all the evidence submitted, there is no genuine issue of

material fact on the question of whether the parties had a written contract. See, e.g.,

White v. State, 131 Wn.2d 1, 17,929 P.2d 396 (1997) (the appellate court can examine

the record and determine on its de novo review that evidence submitted does not create a

genuine issue of material fact). 5 Reasonable minds cannot differ that the written terms

5
The majority mistakenly says that D.R. Strong "seems to argue that it only agreed to provide
the six phases of engineering services outlined in the written contract." Majority at 10. This is

16
No. 86590-6
Madsen, C .J. (dissenting)

are at the least part ofthe parties' agreement, even if not the entire agreement. Indeed,

the majority does not suggest that the parties entered only into an oral agreement.

Mr. Donatelli now maintains, however, that he signed the contract without

knowing what he signed and says that the written contract does not reflect the parties'

agreement. He also claims he paid far more than the fee stated in the written contract. 6

The record shows that Mr. Donatelli is nonetheless bound by the contract he

signed. First, individuals voluntarily signing a written contract without reading it are

deemed to have manifested assent to its terms. "One cannot, in the absence of fraud,

deceit or coercion be heard to repudiate his own signature voluntarily and knowingly

fixed to an instrument whose contents he was in law bound to understand." Skagit State

Bank v. Rasmussen, 109 Wn.2d 377, 381, 745 P.2d 37 (1987) (quoting Nat'l Bank of

clearly not the case. First, as discussed in this opinion, the possibility of additional services was
expressly addressed in the contract and according to Donatelli's testimony, was discussed during
negotiations. Additional services are, in fact, listed in the contract as the seventh phase ("Phase
700", CP at 23). In addition, the written contract was entered after the county issued a
preliminary short plat approval letter on October 4, 2002. From evidence in the record of
communications between the county and D.R. Strong, it is apparent that D.R. Strong provided
professional services in obtaining this preliminary plat approval.
The present dispute concerns the final engineering plans, sewer and water main extension
designs, construction phase services and final plat map necessary to short plat the two parcels-
matters covered by the written contract. See !d. at 20. It may concern additional services
assumed, agreed upon orally and allowed for by the written contract. The dispute does not
concern whatever services were rendered in obtaining preliminary approval. Thus, the source of
any obligation for such services is an irrelevant question on this discretionary review.
6
The written contract shows that D.R. Strong's services were not promised for a flat fee. The
first two phases, concerning final engineering plans and the sanitary sewer and water main
extension, are for stated flat amounts, but the next four phases are for "Time & Material" and
two ofthese expressly add that the amounts listed are estimates ("Est."). !d. at 23. The contract
contains a schedule of charges that lists hourly rates for various persons providing services, for
example, a principal engineer's services are listed at "$130/Hour." !d. at 26. In short, the
written contract contemplates both the possibility that D.R. Strong's fees might be higher than
estimates provided.

17
No. 86590-6
Madsen, C.J. (dissenting)

Wash. v. Equity Investors, 81 Wn.2d 886, 913, 506 P.2d 20 (1973)). "The whole panoply

of contract law rests on the principle that one is bound by the contract which he

voluntarily and knowingly signs." Nat'! Bank, 81 Wn.2d at 912-13.

Under the circumstances here, Mr. Donatelli must be deemed to have assented to

the contract that he signed. Although the Donatellis contend that D.R. Strong negligently

misrepresented the costs and time of their services and they entered into a contract with

D.R. Strong in reliance on these misrepresentations, negligent misrepresentation does not

require an intentional act or omission, unlike the defenses to contract formation

mentioned in Skagit Bank and National Bank (fraud, deceit, and coercion). See generally

26 WILLISTON ON CONTRACTS§ 69:4 (4th ed.) (database updated May 2013) (fraud as

rendering a transaction void or voidable); id. § 69:11 (fraud with regard to future

promises or actions).

More importantly, the Donatellis do not claim that there is no enforceable contract

because of negligent misrepresentation-in fact, they clearly maintain that an enforceable

contract does exist. In their amended complaint they seek at least $1.5 million for breach

of contract and they do not seek any remedies of the kind that would follow if the

contract were to be found unenforceable.

Thus, this case falls within the rule of Skagit State Bank and similar cases.

Nothing in the record suggests that Mr. Donatelli lacked the ability to read and

understand the written contract or that his signature was involuntary. Thus, Mr.

18
No. 86590-6
Madsen, C.J. (dissenting)

Donatelli's signature on the written contract on October 31, 2002, shows assent to the

terms of the written contract regardless of his present assertions.

Because reasonable minds cannot differ from the evidence in the record that the

written contract is at the least part of the parties' agreement and that its terms are binding,

the next question is whether any possible oral terms could modify the written contract,

and more specifically and importantly, whether an oral term could exist that would alter

the professional liability limitation in the write contract.

Initially, the majority leaves the incorrect impression that the only relevant bar to

oral contract terms would be a merger or integration clause in the written contract, which

the majority does not find. Majority at 10 n.2. But whether a contract is fully integrated

or not does not depend on whether there is a written merger or integration clause in the

contract. A written contract can be fully integrated without a merger or integration

clause-the lack of such a clause in the parties' written agreement has little if any

significance. 7

Thus, if it were necessary to decide whether the written contract is integrated,

additional extrinsic evidence would be admissible to determine if the contract is fully

integrated. But it is unnecessary to decide whether the contract is fully integrated. This

7
To make the "preliminary determination whether the parties intended the written document to
be an integration of their agreement, which is a question of fact, the trial court must hear all
relevant, extrinsic evidence, oral or written." Emrich v. Connell, 105 Wn.2d 551, 556,716 P.2d
863 (1986); see also MA. Mortenson Co. v. Timberline Sojiware Corp., 140 Wn.2d 568, 579,
998 P.2d 305 (2000).

19
No. 86590-6
Madsen, C.J. (dissenting)

is because in either case the parol evidence rule precludes giving effect to any oral term

that would be inconsistent with or would change the professional liability limitation.

Although extrinsic evidence can always be submitted when interpretation of

existing terms is at issue, 8 different rules apply when the question is admissibility of

extrinsic evidence to add to or modify terms of a written contract. Under the parol

evidence rule, if the written contract is fully integrated, i.e., is a final and complete

expression of the parties' agreement, parol (extrinsic) evidence is not admissible to add

to, subtract from, or alter the terms of the contract-period. DePhillips v. Zolt Constr.

Co., 136 Wn.2d 26, 32, 959 P.2d 1104 (1998). If, on the other hand, the written contract

is not fully integrated but instead is partially integrated, parol evidence can be admitted to

prove additional terms not included in the writing subject to the rule that such evidence is

not admissible to prove additional terms that are inconsistent with or would change the

written terms. Id. at 32-33 ("[w]here a partially integrated contract is involved, parol

evidence may be used to prove the terms not included in the writing, provided, of course,

that the additional terms are not inconsistent with the written terms" (footnote omitted)

(citing Emrich, 105 Wn.2d at 556)).

8
See Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990) (quoting J W Seavey Hop
Corp. ofPortlandv. Pollock, 20 Wn.2d 337,348-49, 147 P.2d 310 (1944)); see also, e.g., US.
Life Credit Life Ins. Co. v. Williams, 129 Wn.2d 565, 570, 919 P.2d 594 (1996). However, "use
of parol, or extrinsic, evidence as an aid to interpretation does not convert a written contract into
a partly oral, partly written contract." DePhillips v. Zolt Constr. Co., 136 Wn.2d 26, 32, 959
P.2d 1104 (1998).

20
No. 86590-6
Madsen, C.J. (dissenting)

Thus, regardless of whether the written contract here is fully or partially

integrated, extrinsic evidence of any oral terms is not admissible to prove terms

inconsistent with the written contract or that would change the written terms.

The parties' written contract contains the explicit limitation of professional

liability, as explained. Evidence of oral terms is inadmissible to prove any contract term

that conflicts with the professional liability limitation in the written contract, regardless

of whether the written contract is fully integrated. Accordingly, the professional liability

provision applies and prevents the Donatellis from going forward on their negligence and

negligent misrepresentation claims. 9

As explained, the court could decide the summary judgment question on any, or

all, of the three grounds I have discussed above. The three bases I propose, separately or

together, resolve this case and dictate that summary judgment should have been granted

in D.R. Strong's favor. Moreover, resolving the issue of whether the negligence and

negligent misrepresentation claims can go forward will avoid unnecessary expense and

time for the parties, counsel, and the judicial system.

But ifthe court is not inclined to use any of these grounds to resolve this

discretionary review, it still should not require the parties to engage in a meaningless

factual inquiry on remand. Even under the majority's analysis for when the "independent

duty doctrine" applies, it makes no difference in this case whether the professional

9
Although the professional liability provision states that the Donatellis could waive the liability
limitation if they paid the greater of 5 percent of the professional fee or $500-a nominal
amount-they did not do so.

21
No. 86590-6
Madsen, C.J. (dissenting)

services arose solely under the written contract or whether services were added by oral

agreement or D.R. Strong's conduct. As noted, the majority explains that engineering

services can in some instances give rise to a tort duty independent of the contract because

design professionals, including civil engineers, have an independent duty to use

reasonable care with respect to personal injuries and physical damage to property.

Majority at 9.

Here, however, the negligence claims concern the Donatellis' inability to develop

their property and sell residential lots on the short platted property as they planned to do,

allegedly because costs and delay in D.R. Strong's professional services resulted in

failure to develop the property before the 2007 economic collapse. These claims

asserting costs and delay do not involve personal injuries or property damage. Thus,

whatever the source ofD.R. Strong's professional obligations, whether under the written

contract, additional oral terms, or by assumption, the alleged failure to carry out them out

does not implicate the independent duty doctrine. The factual inquiry the majority

demands does not concern an issue of material fact. Summary judgment is not precluded

because of the factual question the majority identifies. CR 56( c).

The trial court, however, is likely to reasonably conclude that remand for this

factual determination would not have been directed unless it matters. If on remand

additional services are established, how is the trial court to proceed when this court's

cases indicate that the independent duty doctrine does not apply to professional services

unless personal injury or property damage is asserted?

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No. 86590-6
Madsen, C.J. (dissenting)

There is no reason to add to this litigation by remanding for a factual

determination of the scope of possible additional services orally contracted for or

assumed by D.R. Strong. The majority's decision is an unfair resolution of this case. As

noted, neither party addresses the issue the majority finds compelling, either in briefing at

the Court of Appeals or this court. The court lacks argument or authority that D .R.

Strong itself might have submitted had it known this was going to be an issue. As

demonstrated by this dissent, D.R. Strong would have had a number of compelling

arguments available to show that summary judgment is appropriate on the negligence and

negligent misrepresentation claims, notwithstanding the question whether some

professional services were agreed to or assumed.

Litigation is time consuming and costly, and this is certainly true when

professional design and construction contract matters are at issue. It is not fair to extend

this litigation on a basis so fraught with pitfalls when there are other grounds to resolve

the propriety of the trial court's order denying summary judgment. The negligence and

negligent misrepresentation claims should have been dismissed as a matter of law, for

any or all of the following reasons: under existing precedent, in particular,

Berschauer/Phillips, the tort claims should not go forward because they do not involve

personal injury or damage to property; the claims asserted arise from the contract and

contract remedies alone are implicated and appropriate-no personal injury or property

damage is alleged; and the professional liability limitation in the written contract bars the

negligence claims under settled contract principles that show the provision is enforceable

23
No. 86590-6
Madsen, C.J. (dissenting)

and applies to the negligence and negligent misrepresentation claims. Finally, even under

the independent duty approach, no independent tort duties are implicated and proof of

additional professional services would not alter this conclusion.

Conclusion

This case is legally indistinguishable from Berschauer/Phillips and, as in that case,

the Donatellis' tort claims here should not be allowed against the design professional

engineering firm, defendant D.R. Strong. All of the claims asserted by the Donatellis

arise out of the contract, and no personal injuries or physical damage to property is

asserted.

The majority's extended discussion of the "independent duty doctrine" is

unnecessary. It fails to preserve the distinction between contract and tort when the

subject matter and nature of the plaintiffs' claims and the alleged injuries or harm fall

within their contractual relationship.

The limitation of liability provision in the contract should be enforced. It covers

both the negligent misrepresentation claim and the professional negligence claim, as both

concern the professional duties under the written contract.

I would hold that the trial court erred when it denied D.R. Strong's motion for

summary judgment on the negligence claims. The negligence claims are not permissible

under our precedent, and they are not allowable under the limitation of professional

liability provision in the parties' contract.

24
No. 86590-6
Madsen, C.J. (dissenting)

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