                                                                                       FILED
                                                                                COURT OF APPEALS
                                                                                     DIVISION II

                                                                               2014 DEC 30 AM 9 44

      IN THE COURT OF APPEALS OF THE STATE ,'                                         Kseier
                                                                                BY
                                                 DIVISION II                           tl PITY


 DANIA,          INC.,     a   Delaware     corporation;                      No. 45035 -6 -II
NORTHWEST                WA PROPERTIES,           LLC,    a

 Delaware limited liability company,

                                      Appellant.


          v.



 SKANSKA USA BUILDING INC., a Delaware                                   PUBLISHED OPINION
 corporation;        McDONALD &                  WETLE
 ROOFING, INC., a Washington corporation,


                                      Respondents.




         LEE, J. —       Dania, Inc. appeals the trial court' s summary dismissal of its construction defect

action against     Skanska USA       Building,   Inc.   Dania argues that the trial court erred in concluding

that the statute of repose, RCW 4. 16. 310, barred its action. Because there is a question of fact as

to whether Dania filed its complaint before the applicable limitations period expired, we hold that


the trial court erred in ruling as a matter of law that the statute of repose barred Dania' s complaint.

Accordingly, we reverse the summary judgment order dismissing Dania' s complaint against

Skanska and remand for further proceedings.


                                                        FACTS


          On March 17, 2005, Dania entered into a contract with Skanska, as general contractor, for

the   construction of a    distribution warehouse in the city    of Dupont,   Washington (the    City).   Skanska


entered   into   a subcontract with    McDonald & Wetle, Inc. ( M       &W) for   all required   labor,   material,
No. 45035 -6 -II



equipment, supervision and coordination necessary to construct a complete roof system on the

warehouse.




        On December 21, 2005, the City issued a temporary certificate of occupancy that permitted

Dania to occupy      part of   the warehouse.            On the same date, M &W issued a two -year warranty

certifying that the roof was watertight.

        In January 2006, Dania received permission from the City to use the full square footage of

the warehouse. Work continued on the warehouse, however, and a punch list issued on February

14, 2006, showed that several items of work remained, including the addition of a final layer of

the roofing   membrane   known       as   the "   mineral   cap   sheet."   Clerk' s Papers ( CP) at 143 -44, 183. The


mineral cap sheet contains ceramic granules for ultraviolet ( UV) protection and weatherability,

and its installation was part of M &W' s contract with Skanska.

        M &W       completed   the   mineral       cap   sheet    installation   on   the   roof on   June 21, 2006.   In


November 2006, Dania       noticed        leaks in the      lobby   area of   the   warehouse and elsewhere.     M &W


made initial repairs, but Dania eventually hired an outside contractor in 2010 to repair the roof.

        Dania filed suit against Skanska and M &W for breach of contract and negligence on April

4, 2012. Dania alleged that the roof was leaking because roofing materials, including the mineral

cap sheet, were not properly installed, and it claimed damages of almost $400, 000.

        Skanska responded by moving for summary judgment under the construction statute of

repose, RCW 4. 16. 310, which bars any action for construction defects that fail to accrue within

six years of substantial completion of construction or termination of services, whichever is later.


Skanska argued that Dania' s complaint was untimely because it was filed more than six years after

January   2006, the   project' s substantial completion             date.   Skanska    also argued    that the June 2006
No. 45035 -6 -II



roof work did not postpone the running of the statute of repose because that work was unrelated to

Dania' s complaint.


         Dania successfully moved to delay consideration of the summary judgment motion so that

it   could conduct   discovery into   Skanska'     s contentions.   Dania deposed Todd Barnes, Skanska' s


project manager for the warehouse construction, and asked him about the mineral cap sheet work

performed in June 2006:


         Q:    Now, you said that a cap sheet was installed on the roof in the summer of
         2006. Can you tell me, what is a cap sheet?
         A:        It' s the final layer of the roofing membrane.
          Q:       What makes it different than any other layer of the roofing membrane?
         A:        I couldn' t tell you the technical qualities, but it' s got ceramic granules, and
         those are mainly there for UV protection.
         Q:      Without the cap sheet layer, was the roof still watertight?
         A:        Correct, yes.
          Q:       And do you know what contractor installed that cap sheet?
         A:        McDonald & Wetle.


CPat182.


          During the summary judgment hearing that followed, Skanska contended 'that the above

exchange from the Barnes deposition showed that the June 2006 cap work was unrelated to Dania' s

cause of action and that the statute of repose began to run from the date of the warehouse' s

substantial completion      in   January   2006.   Skanska maintained that the statute of repose could not


start running when the mineral cap sheet was installed in June 2006 because the June work had

nothing to do with the leaks.

          Dania replied that there was not yet any testimony about the cause of the leaking. RP 12.

When the court reasoned that it was possible that application of the mineral cap sheet caused the

leaking and asked whether there was any evidence in the record to create this issue of fact, Dania




                                                         3
No. 45035 -6 -II



responded that an issue of fact existed without additional evidence. The court then suggested that


it was Dania' s burden, as the nonmoving party, to respond with some evidence that the mineral

cap    sheet   caused     the leaks.    The court eventually agreed with Skanska that the lack of such

evidence showed that the statute of repose started to run from the date of substantial completion


and that Dania' s action was time barred. Dania appeals the order granting summary judgment and

dismissing Dania' s claim against Skanska.

                                                         ANALYSIS


A.          STANDARD OF REVIEW


           A moving defendant meets its initial burden on summary judgment by showing that there

is   an absence of evidence       to   support   the   plaintiff' s case.   Young v. Key Pharms.,    Inc., 112 Wn.2d


216, 225     n. 1,   770 P. 2d 182 ( 1989).   The inquiry then shifts to the plaintiff to set forth specific facts

demonstrating         a genuine   issue for trial.     Young,    112 Wn.2d     at   225.   An order granting summary

judgment should be affirmed if no genuine issue of material fact remains and the moving party is

entitled    to judgment as a      matter of   law. CR 56( c).        A material fact is one on which the outcome


of   the   litigation depends.     Greater Harbor 2000 v. City ofSeattle, 132 Wn.2d 267, 279, 937 P.2d

1082 ( 1997).         We review a summary judgment order de novo and consider the evidence and all

reasonable       inferences therefrom in the light           most   favorable to the nonmoving party.      Schaaf v.

Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 ( 1995).


B.          APPLICABLE LIMITATIONS PERIOD


            Skanska moved for summary judgment on the basis that Dania' s action was barred by the

statute     of repose,    RCW 4. 16. 310.        Dania responded by arguing that the statute of repose was

satisfied if the statute of limitations started running during the six years following Skanska' s



                                                                4
No. 45035 -6 -II



termination      of services.        Dania contended that its claims accrued in November 2006, when it


discovered that the roof was leaking, and that its April 2012 complaint was timely.

         Skanska replied that Dania was improperly arguing that its filing deadline had been

extended      by    the   discovery       rule.   Skanska asserted that under the statute of limitations for


construction contract claims codified              in RCW 4. 16. 326( 1)( g),   any defect claims arising out of a

construction project must be filed within six years of substantial completion or termination of


services and       that the date     of   discovery was   immaterial. Skanska argued further that the statute of


repose in RCW 4. 16. 310 was the governing law and that the only relevant determination was the

date   on which      the    statute of repose commenced.          During the hearing, Dania did not challenge

Skanska' s argument that the discovery rule no longer applied and that under RCW 4. 16. 326( 1)( g),

a construction defect claim must both accrue and be filed within six years of substantial completion


or termination of services, whichever is later. In its motion for reconsideration, Dania cited RCW


4. 16. 326( 1)( g)   as    the "   combined statute of limitations /statute of repose the legislature came up

with   to deal   with construction contracts."         CP at 239.


         In explaining the law that guides our analysis, we address the statute of repose, the statute

of limitations, and RCW 4. 16. 326( 1)( g).

         1.    Statute     of Repose      —RCW 4. 16. 310


         A statute of repose terminates a potential claim after a specified time, even if an injury has

not yet occurred. Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt


   Nichols -Kiewit Constr. Co., 176 Wn.2d 502, 511, 296 P. 3d 821 ( 2013). RCW 4. 16. 310 bars an


action for construction defects that does not accrue six years from the time of substantial


completion of construction or termination of services, whichever is later. Cambridge Townhomes,




                                                              5
No. 45035 -6 -II



LLC   v.   Pac. Star    Roofing, Inc.,          166 Wn.2d 475, 485, 209 P. 3d 863 ( 2009). The statute provides


as follows:


           All claims or causes of action as set forth in RCW 4. 16. 300 shall accrue, and the
           applicable statute of limitation shall begin to run only during the period within six
           years after substantial completion of construction, or during the period within six
           years after the termination of the services enumerated in RCW 4. 16. 300E11,
           whichever is later. The phrase " substantial completion of construction" shall mean
           the state of completion reached when an improvement upon real property may be
           used or occupied for its intended use. Any cause of action which has not accrued
           within six years after such substantial completion of construction, or within six

           years after such termination of services, whichever is later, shall be barred.


RCW 4. 16. 310;         see     also   Donovan        v.   Pruitt, 36 Wn.     App.   324, 327, 674 P. 2d 204 ( 1983)


 describing RCW 4. 16. 310 as a statute of abrogation).

           Under RCW 4. 16. 310, a claim set forth in RCW 4. 16. 300 must accrue within the six years


following substantial completion of construction or termination of services, whichever is later.

Hunt, Huber, 176 Wn.2d                 at   511.   Once the   claim   has   accrued, "   that is the end of the statute of


repose     inquiry. Whether an accrued claim is timely filed is a different question, involving the

statute of      limitation,   not   the     statute of repose."   Hunt, Huber, 176 Wn.2d at 511.


           2.    Statute   of   Limitations —RCW 4. 16. 040( 1)


           Under the       statute     of    limitations in former RCW 4. 16. 040( 1) (        2007),   an action upon a




written contract must be commenced within six years. A statute of limitations generally runs from

the time a claim accrues, which is when a party has the right to apply to a court for relief.



1 RCW 4. 16. 300 applies to all claims or causes of action against any person " arising from" such
person     having                             any improvement upon real property. Condit v.
                     constructed, altered or repaired

Lewis Refrigeration Co., 101 Wn.2d 106, 110, 676 P. 2d 466 ( 1984). RCW 4. 16. 300 also applies
to claims against persons who supervise construction or administer construction contracts; it
 focuses on individuals whose activities relate to construction of the improvement." Condit, 101
Wn.2d at 110.



                                                                  6
No. 45035 -6 -II



Cambridge Townhomes, 166 Wn.2d at 485. Thus, unlike a statute of repose, which bars a right of


action after a specified time even if injury has not occurred, a statute of limitations bars the accrued

claim   after a specific period      of   time.    Harmony at Madrona Park Owners Ass 'n v. Madison

Harmony Dev.       Inc., 143 Wn.     App.   345, 353, 177 P. 3d 755 ( quoting Rice        v.   Dow Chem. Co., 124


Wn.2d 205, 211, 875 P. 2d 1213 ( 1994)), review denied, 164 Wn.2d 1032 ( 2008).


         Actions often accrue, for purposes of applying a statute of limitations, when the wrongful

act occurs.   1000 Virginia Ltd. P' ship      v.   Vertecs   Corp.,   158 Wn.2d 566, 575, 146 P. 3d 423 ( 2006).


However, courts sometimes apply a discovery rule of accrual where the cause of action accrues

when    the plaintiff   discovers,   or should     discover, the   elements of   the   cause of action.    1000 Va.,


158 Wn.2d at 575 -76.


         In 2002, Division One of this court held that the discovery rule applied to breach of

construction contract claims. Architectonics Constr. Mgmt., Inc. v. Khorram, 111 Wn. App. 725,

737, 45 P. 3d 1142 ( 2002),     abrogated      by   1000 Va., 158 Wn.2d 566 ( 2006).            As a result, persons


who constructed, altered or repaired any improvement upon real property could be potentially

liable for services provided up to 12 years after substantial completion or termination of services -

6 years for the claim or cause of action to accrue and 6 years after accrual before the statute of

limitations terminates the right of action.


         3.   Legislative Response —RCW             4. 16. 326( 1)( g)

         In 2003, the legislature enacted RCW 4. 16. 326, which included an affirmative defense that

precluded application of a       discovery    rule    in   construction contract cases.        RCW 4. 16. 326( 1)( g);

Harmony, 143 Wn. App. at 354. RCW 4. 16. 326 provides as follows:




                                                             7
No. 45035 -6 -II



              1)Persons engaged in any activity defined in RCW 4. 16. 300 may be excused, in
             whole or in part, from any obligation, damage, loss, or liability for those defined
             activities under the principles of comparative fault for the following affirmative
             defenses:


              g) To the extent that a cause of action does not accrue within the statute of repose
             pursuant to RCW 4. 16. 310 or that an actionable cause as set forth in RCW 4. 16. 300
             is    not   filed   within   the        applicable statute   of   limitations.   In contract actions the
             applicable contract statute of limitations expires, regardless of discovery, six years
             after substantial completion of construction, or during the period within six years
             after the termination of the services enumerated in RCW 4. 16. 300, whichever is
             later.


RCW 4. 16. 326( 1)( g).

             This legislation was intended to reduce a builder' s potential exposure to liability from 12

to 6 years, thus creating greater certainty for insurers. 1000 Virginia Ltd. P 'ship v. Vertecs Corp.,

127 Wn.           App. 899,      912   n. 29,   112 P. 3d 1276 ( 2005),        aff'd, 158 Wn.2d 566, 146 P. 3d 423 ( 2006).

The affirmative defense in RCW 4. 16. 326( 1)( g) terminates any construction contract claim six

years after substantial completion or termination of services listed in RCW 4. 16. 300, whichever is

         2
later.       1000 Va., 158 Wn.2d                at   582. Thus,   following     the   enactment   of RCW 4. 16. 326( 1)( g), any


claim for breach of written construction contracts must both accrue and be filed within six years


of substantial completion or termination of services, whichever is later. Huber, Hunt, 176 Wn.2d

at 515; Cambridge Townhomes, 166 Wn.2d at 485.


             RCW 4. 16. 326( 1)( g) is               neither a statute of repose nor a statute of       limitations. 1000 Va.,


158 Wn.2d at 583. It does not alter the statute of repose in RCW 4. 16. 310. Rather, it explains that




2 If a defendant fails to plead RCW 4. 16. 326( 1)( g) as an affirmative defense, the discovery rule
can apply to delay accrual of a cause of action even on a written construction contract. 1000 Va.,
158 Wn.2d at 582. Moreover, the discovery rule may still apply to oral contracts, which have a
three -year        statute of    limitations. RCW 4. 16. 080( 3); 1000 Va., 158 Wn.2d at 582.



                                                                      8
No. 45035 -6 -II



the limitations period expires, regardless of discovery, at the end of the same six -year period in

RCW 4. 16. 310. 1000 Va., 158 Wn.2d at 583 -84. RCW 4. 16. 326( 1)( g) identifies the point at which

the applicable limitations period expires and establishes an absolute end to the limitations period

as an affirmative     defense. 1000 Va., 158 Wn.2d at 584.


            On appeal, the parties focus on when Dania' s breach of contract action accrued under RCW

4. 16. 310 and whether Dania brought its action before the statute of repose ran. Dania argues that

the relevant date is June 2006, when Skanska terminated its services after installing the mineral

cap on the roof; therefore, because the complaint was filed in April 2012, the claim is not barred

by    the   statute of repose.   Skanska, on the other hand, argues that Dania' s claim is barred by the

statute of repose because the relevant date is January 2006, the date of substantial completion, not

June 2006 because the mineral cap installation on the roof was not related to Dania' s complaint.

            While the parties focus on whether Dania' s claim is barred under the statute of repose

 RCW 4. 16. 310),      the relevant inquiry is whether Dania filed its action within the time limitation

set   forth in RCW 4. 16. 326( 1)( g). 3   As discussed above, a claim is barred under the statute of repose

if it does not accrue within six years of substantial completion or termination of services. Here, it

is undisputed that Dania' s claim accrued in November 2006, when the roof started leaking, which

is well within the statute of repose limitation. Thus, the issue is not whether the claim is barred by




3 Skanska' s arguments on the applicability of RCW 4. 16. 326( 1)( g) to the trial court satisfy our
liberal pleading rules. CR 15.



                                                         9
No. 45035 -6 -II



the statute of repose, but whether Dania filed its cause of action within six years of substantial

                                                                                                                     4
completion or   termination        of contract, whichever   is later,   as required   by RCW 4. 16. 326( 1)(   g).


C.      SUBSTANTIAL COMPLETION


        Under RCW 4. 16. 310, a construction project is substantially complete if it can be used or

occupied   for its intended    use.    Substantial completion occurs when the entire improvement, and


not just a component part, may be used for its intended purpose. Mattingly v. Palmer Ridge Homes

LLC, 157 Wn.       App.   376, 394, 238 P. 3d 505 ( 2010);      Smith v. Showalter, 47 Wn. App. 245, 251,

734 P. 2d 928 ( 1987).     The fact that additional contract work remains, including punch list work,

does not affect the conclusion that a project is substantially complete if it is otherwise fit for

occupancy. 1519 -1525 Lakeview Blvd. Condo. Ass 'n              v.   Apt. Sales   Corp., 101 Wn. App. 923, 932,

6 P. 3d 74 ( 2000),   aff'd, 144 Wn.2d 570, 29 P. 3d 1249 ( 2001).

        Dania conceded during oral argument that construction of the warehouse was substantially

complete   when     the   entire    warehouse   was   ready for use in       January    2006.   Skanska' s project


completion report, written in June 2006, stated that the building' s opening was on January 1, 2006.

Barnes, the project manager, stated in his deposition that Dania was allowed to occupy the whole

warehouse by the second or third week of January 2006. Dania' s response to Skanska' s summary

judgment motion stated that Dania received permission to occupy the entire warehouse in January

2006. And, in its motion for reconsideration, Dania acknowledged that full use of the warehouse

began in   January    2006. Therefore, if the later date of June 2006 ( the date Dania argues Skanska




4 RCW 4. 16. 326( 1)( g) does not appear to apply to Dania' s negligence claim, which is governed
by a three -year statute of limitations. RCW 4. 16. 080; see Huber, Hunt, 176 Wn.2d at 515 ( RCW
4. 16. 326( 1)( g) applies to claim for breach of written construction contact).

                                                         10
No. 45035 -6 -II




installed the mineral cap on the roof and terminated its services) does not apply, then Dania' s April

2012 complaint was filed after the limitations period had expired.

D.        TERMINATION OF SERVICES


          Dania argues that the controlling date is June 2006, the termination of services date. Dania

conceded during oral argument that termination of services occurred with the roof's completion in

June 2006.


          For contractors who perform final services on a project, the limitations period begins to


run from the date their last service was provided, so long as that service gave rise to the cause of

action.   Parkridge Assocs., Ltd.. v. Ledcor Indus., Inc.,              113 Wn. App. 592, 599 -600, 54 P.3d 225

 2002).    The language    of    RCW 4. 16. 300          describing     actions or    claims "   arising from"    various



services shows that there must be a nexus between the services performed after the date of

substantial completion and the cause of action in order for the termination of services date to extend


the limitations period. Parkridge, 113 Wn. App. at 599 -600. This requirement protects those who

perform other earlier services from remaining exposed to liability until all services are completed

by all contractors. See 1519 -1525 Lakeview Blvd., 144 Wn.2d at 577.

          Skanska argues that the nexus requirement is satisfied only with evidence of a causal link

between the final     services   and   the   cause      of action.      Therefore, Dania was required to supply

evidence    showing that installation        of   the   mineral   cap   on   the   roof caused   the   leaking.   Skanska


contends that dismissal was appropriate because Dania did not respond to the summary judgment

motion with any such evidence.


          Dania argues that the nexus requirement is satisfied if there is some kind of connection

between the final services and the cause of action. Dania also argues that the needed connection




                                                            11
No. 45035 -6 -II



here is shown by the fact that Skanska' s final service was to the roof, which was the basis of the

cause of action.       Dania maintains that there is an issue of fact concerning the nexus requirement

without the evidence of causation that Skanska would require, and it cites language from Parkridge

as support.



          In Parkridge, the general contractor on a construction project (Ledcor) sued a subcontractor

 Freeman) for allegedly defective            work.   113 Wn. App. at 595 -96. Freeman moved for summary

judgment, arguing that Ledcor' s claims were barred by the construction statute of repose.

Parkridge, 113 Wn.           App.   at   597.    The trial court agreed and dismissed Ledcor' s breach of


subcontract claim. Parkridge, 113 Wn. App. at 597.

          On   appeal,     Ledcor   argued   that Freeman'   s   later   work qualified as "     services" under RCW


4. 16. 300, while Freeman argued that there had to be a nexus between those services and the cause


of action. Parkridge, 113 Wn. App. at 599. Division One agreed with them both. Parkridge, 113

Wn.   App.     at   599.   Without elaborating on the type of work performed, the court observed that

Freeman'    s work     following    the date     of substantial completion was "        arguably work from which

Ledcor'   s cause of action arose."        Parkridge, 113 Wn.        App.    at   599 -600. The court added that, in


any event, Freeman had failed to show the absence of a genuine issue of material fact on the nexus

issue:


                     Freeman claims that the work performed after the date of substantial
          completion was " warranty repairs" or " punch list" work that had no nexus to the
          contract and initial construction work on which the lawsuit is based. Nothing in

          the record supports this bare assertion. But even if Freeman had provided evidence
          to support this argument, there would be, at most, a genuine issue of material fact
          on   the   question.   Summary        judgment   would not      have been    proper.    Accordingly,
          the date of termination of services, December 5, 1994, controls, not the December
          30, 1993 date of substantial completion of the project.




                                                            12
No. 45035 -6 -II




Parkridge, 113 Wn. App. at 600.

        Thus, the Parkridge court held that because the moving party failed to provide evidence

showing that its final services had nothing to do with the contract and the initial construction work

on which the lawsuit was based, summary judgment was improper. The court also held that even

if the moving party had provided such evidence, an issue of material fact on the nexus question
would remain.




        We question this reasoning, as it would prohibit a contractor from ever obtaining summary

judgment on the nexus issue. We agree, however, with the more fundamental point in Parkridge

that there must be some nexus between the construction work and the cause of action for the

termination of services date to apply. RCW 4. 16. 300 provides that an action must " aris[ e] from"

a service and   thereby   requires   a connection   between the    action and   the service.   Without that


connection, a contractor' s liability could be extended by any subsequent work on a construction

project.   See 1519 -1525 Lakeview Blvd.,         101 Wn. App. at 929 -30 ( rejecting argument that

termination of services would not occur until the termination of all services by all providers).

        Here, the required connection is arguably satisfied by the location and timing of the June

roof work and the November leaking. See Parkridge, 113 Wn. App. at 600 ( summary judgment

was inappropriate because the subcontractor' s final services were arguably work from which the

cause of action arose).   The record shows that the roof was installed, except for the final layer, by

the end of 2005 and that it was watertight at that point. The record then shows that the final layer

was installed in June 2006 and that the leaks began the following November. Skanska insists that

its final services had nothing to do with the subsequent leaking because the project manager stated

that the roof   was watertight without    the   final cap.   But the fact that the roof was watertight in




                                                      13
No. 45035 -6 -II




January does not show, in and of itself, that the subsequent cap installation did not affect the roofs

ability to withstand moisture.

           We reject Skanska' s argument that additional evidence of a causal link was required to


withstand summary judgment. During oral argument, Skanska reasoned that even if a Dania expert

had opined that installation of the final roof layer caused the leak, Skanska would have needed to

conduct additional depositions to determine the basis for that opinion. The result would be a mini -

trial on causation that would essentially require Dania to prove an element of its case in response

to   a   summary judgment     motion    based   on   the   statute of repose.   See Nw. Indep. Forest Mfrs. v.

Dep' t ofLabor &     Indus., 78 Wn.     App.   707, 712, 899 P. 2d 6 ( 1995) ( elements of breach of contract


claim     include   duty,   breach,   causation,     and   damages).     We decline to interpret the nexus


requirement to impose the burden Skanska seeks to impose on Dania.


           When viewed in the light most favorable to Dania, the nonmoving party, the evidence

raises a genuine issue of material fact as to whether a connection exists between Skanska' s final


work on the roof in June 2006 and the leaking that followed in November 2006. Because genuine

issues of fact remain concerning that connection, the trial court erred in dismissing Dania' s

complaint against      Skanska.       Therefore, we reverse the order dismissing Dania' s complaint on

summary judgment and remand for further proceedings.




I concur:




                    Worswick, P. .




                                                            14
No. 45035 -6 -I1



        MAxA, J. ( concurring in    result) —      I agree with the majority opinion that the trial court' s

grant of summary judgment in favor of Skanska USA Building, Inc. must be reversed. But I

write separately because I believe that under RCW 4. 16. 326( 1)( g), the statute of limitations

begins to run at termination of the defendant' s construction services rather than at substantial


completion even ifthose services do not relate to the plaintiff's claim. Because there is no

question that Skanska' s subcontractor engaged in construction services in June 2006 and Dania,

Inc. filed its lawsuit within six years after termination of those services, I would hold as a matter

of law that the statute of limitations cannot bar Dania' s lawsuit.


        RCW 4. 16. 326( 1)( g) states that the applicable construction contract statute of limitations

expires " six years after substantial completion of construction, or during the period within six

years after the termination of the services enumerated in RCW 4. 16. 300, whichever is later."

The parties do not dispute that ( 1) substantial completion of Dania' s warehouse occurred by

January   2006, ( 2) after substantial completion Skanska' s subcontractor performed additional


construction services –    installation   of a   final layer   of   the roofing   membrane, (   3) the


subcontractor did not complete the membrane installation on the roof until June 2006, and ( 4)


Dania filed suit against Skanska and the subcontractor for breach of contract in April 2012.


Therefore, Dania' s claim is barred if the statute of limitations started running at substantial

completion, but it is not barred if the statute of limitations started running when Skanska' s

subcontractor terminated its services in June 2006.


          The majority   opinion states "[   f]or contractors who perform final services on a project, the

limitations period begins to run from the date their last service was provided, so long as that

service gave rise   to the cause of action."       Majority    at   11 (   emphasis added).   For authority, the



                                                         15
No. 45035 -6 -II




majority relies on Parkridge Associates Ltd. v. Ledcor Industries, Inc., where Division One of

this   court   held: " The   plain language of RCW 4. 16. 300, describing actions or claims ` arising

from' various services, shows that the services considered in this assessment must be those that


gave rise      to the   cause of action."   113 Wn.   App.     592, 599, 54 P. 3d 225 ( 2002) ( interpreting    the

phrase " termination of the services enumerated in RCW 4. 16. 300" in RCW 4. 16. 310).


          I believe that the statements in the majority opinion and in Parkridge reflect an erroneous

interpretation of the term " services" as used in construction contract statutes. RCW


4. 16. 326( 1)( g) provides that the statute of limitations begins to run at the " termination of the

services enumerated          in RCW 4. 16. 300."    Nothing in RCW 4. 16. 326( 1)( g) states or even implies

that the " services" it references must be the services giving rise to the plaintiff' s cause of action.

          The    court    in Parkridge   referenced   the "   plain   language    of   RCW 4. 16. 300."   113 Wn. App

at   599. But the       services enumerated   in that   statute are,    among     others, " claims or causes of action




of any kind against any person, arising from such person having constructed, altered or repaired

any improvement           upon real   property."   RCW 4. 16. 300.


          In other words, under RCW 4. 16. 326( 1)( g) the statute of limitations starts running at

termination of construction services. Nothing in RCW 4. 16. 300 states or even implies that the

services referenced in RCW 4. 16. 326( 1)( g) must be the services giving rise to the plaintiff's

cause of action.



          Here, Skanska' s subcontractor performed services enumerated in RCW 4. 16. 300 —


constructing, altering        or   repairing any improvement          upon real   property —in June 2006. As a


result, RCW 4. 16. 326( 1)( g) provides that the statute of limitations did not start running until the

termination of those services.




                                                              16
No. 45035 -6 -II



        The majority concludes that a question of fact exists as to when the statute of limitations

started running because the services performed in June 2006 involved the warehouse' s roof, and

Dania' s claim involved the roof. However, in my opinion it does matter whether the June 2006

services were related or completely unrelated to Dania' s claim. Under the plain language of

RCW 4. 16. 326( 1)( g),   as long as the services were construction services as enumerated in RCW

4. 16. 300, the statute of limitations started running upon the termination of those services.

        I would reverse and remand with directions to the trial court to dismiss Skanska' s statute


of limitations defense.




                                                   17
