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DETWEILER BROS. v. JOHN GRAHAM & CO.

April 1, 1976

DETWEILER BROS., INC., an Idaho Corporation, Plaintiff,
v.
JOHN GRAHAM AND COMPANY, a Washington Corporation, Defendant



The opinion of the court was delivered by: NEILL

 NEILL, Chief Judge.

 Plaintiff is a mechanical subcontractor who contracted via the general contractor to install a system of steam pipes in a multi-purpose coliseum for Washington State University at Pullman, Washington. Defendant is an architectural firm that contracted with the University to design, inspect and to a limited extent, supervise the installation of the Coliseum's steam pipe system. Defendant's supervisory duties included the responsibility to approve "the reliability of subcontractors' submittals" and the authority to stop work of subcontractors "whenever such stoppage may be necessary in his reasonable opinion to insure the proper execution of the Contract". The parties agree there is no privity of contract between them, defendant having contracted directly with the University, which is not a party to this action, and plaintiff having contracted with the University's general contractor. Jurisdiction is properly founded upon diversity of citizenship, pursuant to 28 U.S.C. § 1332, and Washington law applies.

 Plaintiff's complaint alleges that defendant approved its submittal to substitute "grooved" piping in place of the welded or threaded pipe originally contemplated in plaintiff's contract, but that defendant later ordered plaintiff to stop work and replace the grooved pipe with welded pipe, causing plaintiff to incur damages in excess of $30,000.00.

 Plaintiff earlier instituted an action against the pipe manufacturer but the United States District Court for the District of Idaho granted summary judgment in favor of the manufacturer. Plaintiff then instituted this action against defendant architectural firm for alleged misrepresentations concerning the pipe originally installed. Following this, plaintiff executed a "Release and Settlement Agreement" with the University and the prime contractor, which provided that only the signatories would be released. Defendant was not a signatory to the release.

 Defendant now seeks summary judgment on the grounds that:

 
(1) Plaintiff has failed to state a claim on which relief can be granted because there was no privity of contract between plaintiff and defendant;
 
(3) Plaintiff has failed to join the University and the prime contractor as defendants and, since they are indispensable parties, the action must be dismissed pursuant to Rule 19(b) of the Federal Rules of Civil Procedure.

 Plaintiff has filed a motion for protective order to prevent defendant from deposing Mr. E. C. Connell, an employee of plaintiff, on the ground that Mr. Connell has no personal knowledge of the facts surrounding this litigation and that he is currently on vacation out of the State of Idaho where defendant proposes to conduct the deposition. Further, plaintiff seeks a protective order requiring defendant to be more specific about the scope of its examination of Mr. Connell and the documents defendant has requested plaintiff to produce. Plaintiff also seeks reimbursement for the costs of transporting its employee, Dean Harris, from Las Vegas, Nevada for defendant's deposition.

 I. Defendant's Motion for Summary Judgment

 Privity of Contract

 Since the parties agree there is no privity of contract between them, plaintiff's claim is not supportable on a breach of contract theory. Nor can plaintiff maintain this action as a third-party beneficiary of defendant's contract with the University for the University was the only intended beneficiary of that contract and Washington law requires that third-party beneficiary contracts evidence "an intent that the promisor shall assume a direct obligation to" the third-party beneficiary. McDonald Construction Co. v. Murray, 5 Wash.App. 68, 71, 485 P.2d 626 (1971). No such intent can be inferred from the defendant's contract with the University. Further, although the Washington State Supreme Court has indicated a willingness to entertain a suit against a consulting engineer based on a breach of implied warranty theory, Prier v. Refrigeration Eng'r. Co., 74 Wash.2d 25, 442 P.2d 621 (1968), no case has held that such a suit can be maintained in the absence of privity of contract. See, e.g. Loyland v. Stone & Webster Eng'r. Corp., 9 Wash.App. 682, 514 P.2d 184 (1973). Cf. Stewart Warner Corp. v. Burns International Security Services, Inc., 343 F. Supp. 953 (N.D.Ill. 1972). Therefore, plaintiff's suit is not maintainable under any breach of contract or related theory.

 However, the absence of contractual privity between plaintiff and defendant does not affect plaintiff's tort claim, provided plaintiff can establish the existence of a duty between the parties, and defendant's breach of such duty, with the proximate result that plaintiff suffered the damages of which it complains. For reasons discussed below, the Court concludes that ...


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