Narrow Exception to Mike M. Johnson Confirmed By Division III Court Of Appeals


Recently, Division III of the Washington State Court of Appeals attempted to provide guidance to Washington trial courts and the construction industry on the interplay between two landmark Washington Supreme Court construction law cases – Bignold v. King County (1965) and Mike M. Johnson Construction v. County of Spokane (2003). While the result is a somewhat predictable affirmation of the owner-friendly Mike M. Johnson decision, the Court of Appeals’ decision in General Construction Company v. Public Utility District No. 2 of Grant County does leave the door open ever so slightly for contractors to avoid the enforcement of draconian notice and claim provisions for substantial changes that are “outside the contract.”

The General Construction lawsuit arose out of a public project to build a fish ladder into the Wanapum Dam on the Columbia River near Vantage, Washington. Public Utility District No. 2 of Grant County was the owner of the Project, and General Construction was the general contractor. The contract between the PUD and General contained a very broad scope of work requiring General to perform “all work necessary for the construction of Wanapum Future Unit Fish Bypass.” Moreover, the prime contract contained mandatory “Mike M. Johnson” notice and claim provisions. During the course of construction, there were numerous changes to General’s planned course of construction, including owner directed re-sequencing of General’s work. As a result of the numerous changes to General’s work, General incurred substantial additional costs.

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