December 11, 2014
Public Works Attorney Fee Shifting Statute: Application to Trust Claims?
Most public owners and contractors engaged in public works are well aware of RCW 39.04.240, which can provide for prevailing party attorney’s fees in an action “arising out of a public works contract.” If utilized correctly, this statute can dramatically impact public works litigation, especially in the absence of a contractual fees clause.
The Western District of Washington (Hon. Richard Jones) recently held that the provisions of RCW 39.04.240 applied to claims brought by a workers’ trust against the project bond and retainage. See Puget Sound Elec. Workers Health & Welfare Trust v. Lighthouse Elec. Grp., No. C12-276 RAJ, 2014 WL 2619921 (W.D. Wash. June 12, 2014). The Court—reasoning that such claims fell squarely within the provisions of the statute—awarded the defending surety a portion of its fees and costs incurred in defending the trust claims.
The case was decided by a federal court interpreting Washington law, and it is unclear whether a Washington court would come to the same conclusion. However, parties defending trust claims should consider using the tools provided by RCW 39.04.240, especially in light of the recent Washington Supreme Court decision in W.G. Clark Const. Co. v. Pac. Nw. Reg’l Council of Carpenters, 180 Wn.2d 54, 59, 322 P.3d 1207, 1209 (2014) (holding that federal law—ERISA—does not preempt state law benefit claims).