Washington Case Law Update: Participating in Litigation May Constitute Waiver of Certain Arguments

Attorney Profile Case Update Template -2016 Kyle

Washington Case Update: Participating in Litigation May Constitute Waiver of Certain Arguments

From the desk of Kyle D. Riley: It seems obvious that a nonexistent party cannot participate in litigation. But where a party is misnamed in the case caption and the parties participate in litigation despite the error, can a court dismiss the case or enter judgment for the correctly named party on the ground that one of the parties is nonexistent? Read on to learn more.

Claims Pointer: In this procedurally dense case arising out of a dispute between a contractor and a subcontractor, the Washington Supreme Court held that the correctly named party waived any right to protest the error in the caption by participating in years of litigation under the erroneous caption. The case is a reminder to insurers and their lawyers to pay careful attention to grounds for technical arguments like these early in the case, because participating in litigation will likely constitute waiver of those arguments.

Business Services of America II, Inc. v. WaferTech, LLC, No. 94088-6, Washington Supreme Court (July 27, 2017)

In the mid-1990s, WaferTech, LLC (“WaferTech”) built a large industrial facility in Camas, Washington. It hired Meissner Wurst Zander, U.S. Operations Inc. (“Meissner”) as its general contractor, and Meissner in turn hired Natkin/Scott (“Natkin”) to handle a specialized aspect of the project. Meissner later terminated Natkin for alleged safety violations, and Natkin responded by filing a lien on the property for $7.6 million for furnished labor, material, and equipment. Natkin then assigned its rights and claims to Business Service America II, Inc. (“BSA”), an entity apparently created solely to pursue the Natkin claims.

BSA filed an amended complaint that listed the plaintiff as “Business Services of America II, Inc.” rather than BSA’s correct incorporated name, “Business Service America II Inc.” The parties litigated, and the trial court...

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