159 Wash. App. 82
Wash. Ct. App.2010Background
- Verbeek and GreenCo entered a remediation contract containing a binding arbitration clause.
- GreenCo filed a lien on Verbeek’s property for the amount Verbeek withheld from GreenCo’s work.
- Verbeek sent a February 24, 2009 letter invoking arbitration, offering to waive mediation due to futility.
- GreenCo did not address arbitration in its March 3, 2009 communication; lien matter proceeded.
- Verbeek moved to dismiss the lien as frivolous under RCW 60.04.081, and later filed a breach/arbitration-related action.
- Trial court denied Verbeek’s arbitration motion, ruling Verbeek waived arbitration; the issue on appeal is who decides arbitration initiation and waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who decides procedural initiation of arbitration | Verbeek argues arbitrator, not court, decides initiation compliance. | GreenCo argues trial court may address initiation compliance under RCW 7.04A.070. | Arbitrator decides initiation compliance. |
| Did Verbeek waive arbitration by failing to raise it in the complaint | Verbeek’s conduct shows intent to arbitrate; no waiver. | Failure to invoke arbitration in the complaint constitutes waiver. | No waiver from filing the complaint. |
| Was Verbeek’s lien-removal maneuver a waiver | Removal of the lien was not an election to litigate; not inconsistent with arbitration. | Litigation steps show intent to pursue in court rather than arbitrate. | No waiver based on lien-removal actions. |
| Is declaratory relief compatible with arbitration | Requests for declaratory relief may be arbitrated and then confirmed by court. | Declaratory relief may be incompatible with arbitration under certain statutes. | Declaratory relief is not inherently inconsistent with arbitration. |
Key Cases Cited
- Heights at Issaquah Ridge Owners Ass’n v. Burton Landscape Grp., Inc., 148 Wn. App. 400 (2009) (strong presumption in favor of arbitration; arbitral respect in contract disputes)
- Otis Hous. Ass’n v. Ha, 201 P.3d 309 (2009) (burden on party opposing arbitration; waiver requires inconsistent conduct)
- Ives v. Ramsden, 174 P.3d 1231 (2008) (waiver by conduct after suit filed; reasonable time for asserting arbitration right)
- Lake Washington Sch. Dist. No. 414 v. Mobile Modules Nw., Inc., 621 P.2d 791 (1980) (contractual right to arbitration may be waived by failure to act within a reasonable time)
- Pedersen v. Klinkert, 352 P.2d 1025 (1960) (timeliness as a factor in asserting arbitration rights)
- Kruger Clinic Orthopaedics, LLC v. Regence BlueShield, 138 P.3d 936 (2006) (declaratory relief generally within arbitrator’s remit unless contractually challenged)
- Townsend v. Quadrant Corp., 224 P.3d 818 (2009) (arbitration scope and related relief considerations)
- Westcott Homes, LLC v. Chamness, 192 P.3d 394 (2009) (arbitration initiation and procedural issues distinguished from merits)