Judge tosses Oak Harbor Street lawsuit out of court

An Anacortes construction firm that sought $230,200 in damages from Oak Harbor over problems with a bungled street project has had its case dismissed by an Island County Superior Court judge.

Earlier this month, Judge Alan Hancock granted the city’s motion for summary judgement against GG Excavation, the contractor the city hired to complete the $1.54 million N. Oak Harbor Improvement Project.

“Having a judge dismiss (the case) based on the facts is a big deal,” City Engineer Eric Johnston said.

The street project saw the improvement of a little more than a half-mile of roadway, from E. Whidbey Avenue to NW Crosby Road. The project began in March of 2010 and had a completion deadline of July 28 that year. However, a number of problems occurred that delayed its finish until September.

The lawsuit began earlier this year when a sub-contractor that had not been paid for its services filed a claim against GG, First National Insurance Company of America and the city.

The firm filed for a lien against the city’s retainage bond. As a safeguard to sub-contractors, state law requires that 5 percent of a contractor’s fee be retained until state regulators authorize its release.

According to court documents, five other sub-contractors also filed claims for the $78,785 retained by the city. Combined, they totaled $149,757.

GG and First National’s attorney responded by filing a counter claim against the city that alleged it was partly to blame for the project’s late completion. It asked for labor and equipment costs along with liquidated damages.

“The design plans provided by the city of Oak Harbor to GG contained many errors and were not buildable as designed,” the cross claim said, which was prepared by the company’s attorney, Alan Souders of Anacortes. “When GG inquired concerning the  errors or specifics of the project to be built, the city provided either no response or a delayed response.”

Johnston called the accusations “completely unfounded” and that “there is no basis for that at all.”

The city’s attorney, Hedeen & Caditz of Seattle, asked for summary judgement on the grounds that GG waived any right to a future claim against the city when it executed a final contract voucher certificate and signed a change order.

Summary judgment is a mechanism to avoid lengthy litigation and is sought when only questions of law are believed to be in dispute.

According to a recent city news release, Hancock agreed with the city’s attorney, calling the language in the change order documents “global” and “airtight.”

It also noted that the ruling dismisses all claims by the firm with prejudice, completely resolving all of the issues in this case.

“It was a very positive result for the city and very positive result for the taxpayers,” Johnston said.


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