Is The Construction Defect Notice Statute (RCW 64.50.020) Subject to a Constitutional Challenge?

A recent Washington Supreme Court case dealing with medical malpractice has placed the constitutionality of Washington’s construction defect statute in question.

In Waples v. Yi, 169 Wn.2d 152, 234 P.2d 187 (2010) the Supreme Court held that RCW 7.70.100, which requires 90 days written notice to a healthcare provider prior to commencing a medical malpractice lawsuit against that provider, violated the constitutional separation of powers doctrine and is, therefore, invalid. RCW 7.70.100 provides:

“No action based upon a healthcare provider’s professional negligence may be commenced unless the defendant has given at least 90 days’ notice of the intention to commence the action.”

The court, reasoning that this statute usurped the judiciary’s power to dictate how cases would be handled, concluded, “Requiring notice adds an additional step for commencing a suit to those required by CR 3(a) at 159.”

The Construction Defect Notice Requirement found in RCW 64.50.020(1) is very similar to the Malpractice Notice Requirement in RCW 7.70.150 in terms of its intrusion on the Court’s power to set the procedures by which a civil action is commenced. RCW 64.50.020 (1) requires:

“In every construction defect action brought against a construction professional, the claimant shall, no later than 45 days before filing an action, serve written notice of claim on the construction professional.”

Construction defect claims, like medical malpractice claims, are fundamentally negligence actions rooted in the common law tradition. Accordingly, court rules and in particular CR 3 (a) applies to such cases. See Putman v. Wenatchee Valley Medical Center, 166 Wn.2d 974, 980 (2009) (explaining that a medical malpractice claim is not a “special proceeding” excluded by the civil rules under CR 81).

Thus, RCW 64.50.02(1) conflicts squarely with the court’s fundamental function and inherent power to decide how actions are commenced. RCW 64.50.02(1) adds an additional step for commencing a suit under CR 3(a).

The notice requirement of RCW 64.50.0200 (1) like the notice requirement of RCW 7.70.150, “does not address the primary rights of either party and deals only with the procedures to affect those rights”. Waples 169 Wn.2d at 161.

Thus, RCW 64.50.020(1) involves procedural law and should not prevail over CR 3(a) without infringing on the judiciary’s court to set procedures. Thus, the constitutionality of the construction defect notice requirement has been placed in question.

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