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School district girds for Woodward trial$5.4 million in repairs at issue.

"Although still hoping for a settlement, the Bainbridge Island School District is readying for a June trial over what it claims are defects in the construction of Woodward Middle School.School board member Bruce Weiland, an attorney, said the obstacle to resolving the dispute is that the various defendants can't agree on how to apportion fault.Not even the defendants try to say with a straight face that there is no problem with the school, Weiland said. But they can't agree amongst themselves on how to apportion blame. Either they do it, or 12 good people of the jury will make a decision for them.The school on Sportsman Club Road opened in early 1995. By August 1997, extensive water damage and mold growth were found. One wing of the building was closed for a year and repaired at a cost of $1.1 million.Other repairs have been put off until those responsible for the work come up with the money. While district officials have been tight-lipped about the case on advice of their attorneys, 1999 documents obtained by the Review showed an estimated cost for further repairs at $4.25 million.The roughly $5.4 million the district is seeking to recover is more than half of the original $10.7 million cost of the building.Claiming the damage was caused by improper construction, the district made claims against Merit Construction Co. of Tacoma, general contractor for the school; URS Consultants, which was project manager; and Northwest Architectural Company, the architect, which established specifications for construction material.Informal talks proved fruitless, and the parties took the matter to mediation in the fall of 1999. When those negotiations failed to produce an agreement, the district filed suit in King County Superior Court in January 2000.In the lawsuit, the district claims that the defendants failed to deliver the quality of construction called for in their contracts with the district - a no-fault standard - and that they performed negligently. The complaint does not seek a specific dollar amount of damages, but asks for recovery of all losses caused by the defendants.The defendants all deny that they acted improperly, and assert that any problems with the building were caused by others. Merit, the general contractor, added five of the principal subcontractors as defendants.Trial is set for June 18 before Judge Michael J. Fox.We are still willing to try to work this out, said the district's lead attorney, Richard Prentke of the Seattle firm of Perkins Coie. But we are preparing to go to trial in June.A potential impediment to the trial date is a motion from URS, the project manager, to send the case to arbitration. If that were done, a private arbitrator would render a binding decision on the district's claim against URS. The other defendants would not be part of the arbitration, and URS would not be a defendant at trial. URS claims that while its original contract with the school district did not require the parties to arbitrate, the contract was later amended to add such a provision. It asked the court to suspend any further action on the lawsuit until it went to an arbitration with the school district.The district denied that it had amended the contract to include an arbitration requirement. Judge Fox agreed with the school district, and denied the arbitration request. URS has filed a motion for reconsideration.Arbitration decision keyWhile the arbitration issue may seem like legal minutiae, it is important for two reasons.First, if the court were to reverse itself and order arbitration of the district's claim against URS, the trial would almost certainly be delayed past June.Second, if the district is forced to pursue URS in arbitration and the other defendants in litigation, there could be inconsistent results in a way that could be detrimental to the district because of the tactic referred to as trying the empty chair.At the arbitration, URS could argue that the building's problems were all caused by the other defendants. The arbitrator could agree, and award no damages against URS, even though he or she would have ordered the other defendants to pay the district full damages had those parties been in arbitration.Then at trial, the other defendants could argue that the building's problems were entirely the fault of URS. If a jury agreed, it could award no damages against the defendants in court, even though it would have ordered URS to pay full damages had URS been in court.As a result, the district would recover no money even though both the arbitrator and jury believe the district was blameless and badly damaged.Delay itself will not be particularly detrimental to the district, Prentke said.We have a good argument that we should be awarded interest on the amounts the district actually spent to make the repairs it undertook, he said. And for repairs yet to be made, we will be seeking to recover the costs in today's dollars, so even though construction costs are rising, the district would be okay. "

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