honor before proceeding the i make a statement on the record concerning judge harry preggers i'm sure absolutely i notice that he passed away recently at the age of ninety four yes and some twenty five years ago i had occasion to try a case to judge dispute between a surety and a contractor and the decision of the outcome of that case significantly impacted the construction industry throughout the throughout america now it was twenty five years ago i just had great respect for the man and i'd just like to say i hope  be dishonest and not truthful when dealing with a third party contractor if that contractor does not have a valid cause of action against the engineers principal the owner that is wrong and this court should reverse while the cause of action against staley by the contractor rose from the same circumstances and failed project the case against the professional engineer staley is much different than the contract issues trial in the tried in the originally been called for and that the language of the change order included what i would call an assumption of the risk provision that it would be responsible for the soil conditions and  question for the change order require the contractor to assume responsibility for engineering of the different methodology and you know normally in construction that the owner designs a project and leaves it to the contractor t determine the methodology so under that change order the contractor did what he normally does in coming up with the engineering support for the open field pipe jacking methodology submitted it to ms staley and she reviewed it and approved it and without disclosing that she had already determined in a written memorandum that open jacking was not feasible on this project that's the harm ok but what do we do with the contract provision that essentially said that this is a boring what is the risk of the site condition well that that is not true because under the condor that change or this the specifications still applied and there were representations about the nature of the ground and so forth remember this job had been fully engineered all all the contractor did was take responsibility for the methodology supplied with the geotechnical engineer had been honest and provided the original saul's report to this contractor or her memorandum saying open shield hijacking is not feasible on this project change order number one would never ever i mean nobody in their right mind would have signed up on that proposition and it's fraud in the inducement or misrepresentation which can induce this what could be possibly her motive if we were to assume your version of what happened here well what's in it for her why would she do something like how would she gain that's a great question because there's no plausible explanation why on earth a professional engineer would do that especially where she called in lowered this contractor all the way from california up to washington but the fact of the matter is she had a history of conflict with contractors and she was in a mold where she was doing everything in her power to try to cast as much responsibility on contractors and away from herself and her clients as possible and i think it was just her claims resistance mentality that caused her to take this extremely unusual step of allowing the contractor modify to appeal to a proposition that she knew would not work of course we still have the question of privity between your client and his stay away and as i look at the cases from the state of washington bert showers seems to be the one the controls in this situation which seems to hold that the economic loss rule prevents the general contractor for recovering purely economic damages and toward that's true why why why shouldn't that be the rule of this case ok the answer will be fairly long because i've got quite a bit to say about that but first of all the  longer the law in the state of washington it because it applied the economic loss rule that the our supreme court has called that a misnomer it's now the independent duty doctrine well let me interrupt for just a moment my understanding is that bush our has never been expressly overrule that's correct and in fact some of the recent cases i believe one of them is affiliated and others done a tele yes could have overruled but failed to do so let me just to take go through this shower there was no relationship between the contractor and the engineer all we had was a contractor had the set of plans and specifications which the engineer participated in preparing there was no it's not too far afield from this case will let me keep going there were no safety issues involved in that case that there's no evidence that the engineer knew that there was anything wrong with his with his plans or specifications there was purely economic damage there was no risk of damage to property or persons and there was no misrepresentation in that case more importantly in the east would case they indicated that the outcome may have been different if the building had collapsed and that is if there was a risk of injury or damage associated with the engineers design is an entirely proposition different proposition under washington law now let me address the misrepresentation because there was none at all in  in washington engine here has an independent duty not to reppert misrepresent and may assume additional professional obligations by affirmative conduct that's done a tele done a tele also said that one circumstance where the duty to avoid misrepresent taishan might arise independent of the contract is where one party through misrepresentation induces another to enter into a contractual relationship and that's exactly what we had here are  facts and support of our proposition on misrepresentation our pages nine through fifteen of our brief to which there is no response none and here's just basically i'll sum up this quickly mis because she had written a report that said that the watering of this project of the alignment was not possible you got a public park and you got a wetland it would take years to get permission to do water those conditions that if at all the project was was underneath the park on the edge of lake washington and it surrounded the park and portions of it ran right through the park i'll give you an example after this was being done beneath the water table basically it was below the water table but if the ground sufficiently strong strong like it was the first several hundred feet of this it doesn't matter because it will stay stable it's when it becomes loose and then the water has an effect of causing it to flow and that's what happened when th technical engineer done no boring in that part of the alignment they did they took borings they got permission to do that and the borings indicated the ground was stable but it's you know the blinds are not always completely accurate and that's why we have a lot of difference i can just in cases in this shafts save over one hundred thousand dollars in money for the owner and and expect that this machine would be able to successfully do the job she encouraged did he make the submittal but she failed to disclose that she had written a report that open sh pipe jacking was not feasible in this project because it would require full i meant the watering and she knew that wasn't possible she edited out language in the detection report recommending against any form of boring and jack's  these are facts that were learned during the course of discovery otherwise i'm sure that the the original lawyers in this case would have would have brought an action against her to be at in the beginning of all this was before judge schieffer when she ruled on the various s no judge refused to consider allowing any evidence of her misrepresentations into evidence now she did not rule on this superior knowledge claim and superior knowledge is the equivalent of failure to disclose under a contract it's and she never got to that but you would think from reading that the trials are the district court's decision that in fact it didn't make any difference but it it makes a huge difference if she'd rule on that it would have been a very different change order number one was just simply a document that never would have been considered stand or was was one was not the superseding cause of damage because plaintiff would never have signed it if they hadn't been fra now the district court noted that defendants do not deny communicating this information to plaintiff and as i indicated they ignored these facts in their brief also all the court held the issues that the contract issues and toward issues were nearly identical well that just simply is not correct one the district was not sued for misrepresentation or professional malpractise it was sued for superior knowledge and as i indicated the contract equivalent of failure to disclose and that wasn't decided and the district court or the district's contract defendant contract defendants the district's contract defenses does not offer protection to staley in washington when an agent is sued for her own tortious x she may not avail of the contract offenses available to the to the principal and that's the roberts case and the apex directional drilling case which is a california district case in two thousand and fifteen in earthier read it because it's a fabulous a well reasoned case but it's under california law but those principles definitely apply to this case because there it would involve horizontal drilling as opposed to auger boring or open shield but the principles are very much the same because the ground conditions that caused that to fail can you you're just going to run out of time and i had one question about the negligent misrepresentation claim ok yes can you remind me what was the district court's rationale for dismissing that claim the misrepresentation right was an on a copy of a she get was basically that it was not the proximate cause of the damage right and the court did not even consider fraud in the  misrepresentation being the inducement of that change order and i thought the theory was that you could have gone back or i don't know if it was you or the the general contractor but you all could have gone back to the owner and gotten a camera what they initially are for that proceeding  to get compensation for these unexpected conditions but you just didn't do that in a timely fashion and so therefore whatever losses your client incurred were due to the basically your lack of diligence and that's true that my client did not do a good job of perfecting its contract claims rights but the point your honor is that you never ever ever would have been in that position if these misrepresentations had not been made if she hadn't called and lured them into this project with these false representations would you think about certifying this question to the supreme court of washington i would love it except for the long time delay for us all right when thank you it's hard to remember the facts of a case back in two thousand and eleven correctly recognized that many of the very issues that are before the federal court action were previously decided ruled upon by the state court judge in the prior action and the district court properly recognized that notwithstanding the recent independent duty doctrine decisions the majority of pacific borings claims are barred by longstanding washington president bush over phillips what do you mean the majority there's  thought there's only three claims before us to a professional negligence and maybe that's true as to the duty but what about the negligent misrepresentation on your honor there there's a negligence claim and there's negligent misrepresentation claim both of which can be dismissed based on a lack of duty and a person or phillips with the exception of the pre build phone call that component of the negligent misrepresentation claim they really have to negligent misrepresentation claims the first being that this design the specifications themselves negligently misrepresented the conditions that can be handled and was handled under a duty analysis under bush our philips but that pre bid phone call that separate that would not be appropriate under bush our philips analysis that i was focusing on it seems to me that's the more difficult position for you to defend especially in light of what we've heard from your your opponent so maybe you can just jump in and address that and then backtrack and address the more general find that there were there was no legal proximate cause and that there was an assumption of the risk by pacific born but what about your opponent's argument that to the extent you're trying to rely on change or one of th yes that's correct yeah that there was you know basically they would never have even signed off on that had your client been honest with them beforehand so what about that because that seems to me if you take out a change or one from the equation it's a lot harder to defend that this record shows i think what you have here is a little confusion in the record on what change order one when it took place the pre bid phone call that they're talking about was what occurred prior to bidding the job in green to use a different method auger boring along three different entirely different alignment then in the phone call that they allege that took place and where the misrepresentations occurred was at that point they then entered into the contract and then after that execute or proposed an alternative method and injured into this change order and on that we get back to what happened there specifically that caused the problems that pacific born faced and that's the analysis i think that shaffer made and also the district court made which is you had a failure recognize that you had to do water the alignment which was contractually an obligation of pacific bourne's or the general contractors that was their responsibility and they admitted that they didn't do water the alignment and so right there you have findings by judge shaffer that said you first up had to do water and you failed to and second that the condition that you encountered were not materially different than what was indicated in the contract documents just schafer already got to the very heart of this difference a condition claim in her ruling she looked at what more strict down in the owner had with held information they made all of those arguments and judge schaefer still found that there was no differing site condition claimed absent a differing site condition claim there is no causation for that alleged phone call and what took place there because they've sorrels were what the contract document said they were and so any failure at that point becomes specific borings failure the findings before judge schaefer were first that you had to do water the alignment wherever that was contractually second that there was no difference a condition claim that the soils actually encountered by pacific boring were the same as what was represented in the geotechnical baseline reports the contract documents and also that there was no defective specification and so that is a la stoppel on everything except there i don't believe so your honor i believe on collateral stoppel basis those key findings lead the lead the district court and can lead this court into finding that there doctrine decisions so you don't think there's any need to certify this question to the washington supreme court of the continued by ability or correct your honor we do not believe that this case needs to be certified of the washroom supreme court and to get into the specifics of why it takes us right to push our philips that is clear longstanding washington precedent that the state supreme court has had now five opportunities to visit since the first independent duty decision in two thousand and ten in affiliated f n and eastwood and and what the current state supreme court has said in describing the bush our philip's case is that that supreme court was affectively our philips because this case falls squarely within the facts and holding of our philips notwithstanding the fact that pacific boring now alleges that there was some sort of safety concern here  maybe you should finish that point and ok so what we're dealing with inverse shower and what we're dealing with here is a contractor who incurred extra cost complete the work whether those extra costs involved more labor more safety mechanisms more materials at the end of the day cost more money to complete a job and the contract with the owner controls those risks and whether you can recover if as pacific borne alleges that there was a true safety concern with these specifications in the contract there would be a mechanism for recovery under the contract in fact that is exactly what pacific boring tried to do in its lawsuit with the owner in the last what they're now doing is trying to do an end run around the contract and end run around the owner in an indifferent around judge shaffer's rulings in that state court and sue directly not the engineer of record not the geotechnical engineer but a consultant who worked for the owner on this project and there is no duty in that circumstance that takes a squarely back to birth shower is opposed to these new independent duty doctrine decisions and discovery did your client acknowledge that what she supplied is different from what the original geotechnical report said well that now gets us into the specifics of the record here no there was no misrepresentations and no admission to a misrepresentation of course in the course of creating the work product there were made by multiple parties including staley to the geo tech to the geotechnical baseline report not the geotechnical report there's a difference a geotechnical baseline report is a contract document that goes in with the but as well as the engineer of record that stamped the specifications and the geotechnical mr baker i thought mr baker was accusing your client of actually altering the made in those were the precise accusations that were made in the state court action and judge shaffer did hear those which is your discovery did your client deny that she ever altered that original record in any way alter well that gets to was there a geotechnical baseline that certainly she participated in revisions on and a geo technical report that was never provided to the to the contractor to begin with in the bid the geotechnical the contractor received borings which she didn't alter and never admitted to altering but statements within the geotechnical report that report only surfaced in discovery because it wasn't made available that component what the misrepresentations some of them that he's referring to was not before the contractor when bidding this project maybe i maybe i need to make my question more specific does the geotechnical engineering firm do a report on each boring is that what we're talking about or is there what i'll call a summary report that says we board ten different holes in these locations and here is what our conclusions are with regard to site conditions right in your right that would be the summary report the geotechnical engineer did in fact create and i was not made that was not you know not forbidding purposes it came out during discovery one of the arguments that pacific born makes is the decision by the owner which they say was influenced by staley was to withhold that information now that information you're talking about was there were several revisions made and discussions made by staley the geotechnical engineer the engineer of record and the owner because that is a working document for the owner it is not a document for the contractor and wouldn't supply that to the company that is going to try to board through the soil no you don't have to your honor what they supply is the actual bourne's the actual geotechnical so they get they would get a report on what each boring revealed exactly how far deep did it go what did they encounter whether it's cobbles boulders what's the blow count that tells you what the water table potentially is or how compact the soil is then they can make their own determinations because pacific borne and others they're the experts when it comes to weather what machine to use a thought of the sea and the method we think exactly but many of the misrepresentations that are being discussed here were in a report that was never before forbidding purposes it thing came to light afterwards and in all of that though to be clear was before judge schaffer because those arguments were made the only thing excluded for hearsay purposes was the prepaid phone call that came up in french i'd say for everything else was argued  why was that point argued before the state court judge why was which the withholding or the withholding of all the information because that would have been titled if they are correct and if they had  causation for their damage they would have been titled to recover from the owner but they tried and they lost and now instead of trying to appeal those what they claim to be erroneous decisions by judge shafer they elected to cut bait and try a second time get a second by the apple now directly against stately and did remind me did they try to bring in your client into the state court action and were to stick court said no apparently ye they they moved for a continuance to amend the complaint to add a claim in the eleventh hour against daley and the court dismissed or denied it and said you had two years to bring  action the no this is new information or newly discovered information you chose not to we're not going to move the trial yet one more time for that so so instead what does a boring day was file suit directly against stately here in federal court here first in state court in dismiss that and refiled in federal court and what do you do you know what the reason for the dismissal in state court was and i would i would proffer that it was because they were afraid that  would just be moved directly to judge schaefer and judge shafer who just made all those rulings would come and force them in that action because we were going to move to consolidate that so that's why we would proffer that they did that but otherwise we don't  much set the clock for two minutes your honor i'm not going to take the time to address the alteration of the of the technical report or the do watering of the alignment which she said open shield is not feasible because it would require all or alignment the watering and that's not possible on this project i just refer you to our briefing pages nine through fifteen and i've emphasized they never responded to any of those assertions they are for purposes of this record on summary judgment  referring the matter back to bark is a really enter of bar chart back to the state supreme court let me just address that because i believe that barque share it or bar chart matter is very very different then and i'd like to analyze just quickly the affiliated case in affiliated let me ask you a question about that procedurally you didn't take an appeal to the washington court of appeals from judge summary judgment or you know your honor so if we certify this question to the wise and supreme court are we in effect giving you an appeal that you failed to timely file well judge shafer never ruled on any of these misrepresentation issues that she never rule on the application of the independent duty doctrine it was never before her that has to do only what the direct cause of action against an engineer ok now affiliated held the engineers duty of reasonable care extends to safety risk of physical damage to property and i don't think it's any mystery that there is no activity in the construction industry more dangerous than tunneling especially when you have an open face machine which is in countering flowing ground water some boulders the workmen are right down in front of this of this machine and exposed to those conditions spawns to the superior court finding that there was no difference in conditions from what was represented in what was actually an end she did because it's so very poor indicated that the ground conditions would contain boulders and cobbles and that's what they encountered in that area but that's not what we're arguing or arguing that that it's the de watering aspect of this that's the key because it was flowing ground caused by water all of a sudden they got into a condition where they were inundated with water and it flowed into this machine but the reason they didn't try to do water was that it was basically fruitless at that point because of the volume of doubts through in order to water these soils your honor it has to be engineered it has to be permitted you have to install it you have to draw down the ground water it would take months and this job would did not have a schedule that would have allowed that to occur now  after rapid ok and i work quickly the case of point at west west port involved a third party developer and homeowners association which was allowed to sue an engineer for structural issues without privity and there was no damage the court held the risk itself constitutes an injury within the class of harm contemplated by a professional engineers duty of care and finally in the matter of censuring properties which went to the ninth circuit and then it was for analyzing third party liability for all professionals i believe if you send this to the watson supreme court this will be the opportunity for them to move away from birch r and apply independent duty doctrine and the multi factor test which cannot be decided on summary judgment because all those issues are for the jury to decide in terms of relationship ok counsel thank you very much the case just argued is submitted and we will decide whether to certify or answer the question or