New Supreme Court Decision on Design Professional Tort Immunity
In a decision filed today that will be of interest to design firms and professionals across the state, the Washington Supreme Court for the first time in Michaels, et al. v. CH2M Hill, Inc. addressed the scope of the immunity provided to design professionals by the Industrial Insurance Act in RCW 51.24.035.
All in all, an interesting if not entirely surprising decision (which also contains an interesting discussion of the duties owed by design professionals). The take away is this: It is now clear that design professionals have immunity from tort suits (as a third party) only where (1) they are engaged in providing construction-related services on a construction-related project, and there is a nexus between the construction services and the injury; and (2) where the claim is for negligent supervision of the worksite, not negligent design. Otherwise, no third party immunity.
The facts in Michaels are horrific: Mike Cmos, a City of Spokane employee, drowned in sewage sludge when a digester dome at the City's sewage treatment plant collapsed. Two other city employees were severely injured. While the treatment plant is owned and operated by the City, the City had hired CH2M Hill as an "engineering consultant" in connection with a 10-year capital improvement project. Among other things, CH2M Hill was engaged to design and manage certain recirculation and heating systems, as well as to generally provide "on call" services for plant operations.