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Posted on: March 7, 2018

City of Puyallup Prevails in Counterclaims Against 39th Contractor

Trench Photo that led to LI Citation

The City of Puyallup prevailed in many of its counterclaims and defenses against Conway Construction in Pierce County Superior Court according to a final judgment entered by Judge Stanley Rumbaugh on February 21, 2018 as well as other court documents.  Conway’s claims against the City totaled $1,982,306.50; however, Conway received close to $900,000 less in the final judgment of $1,163,816.77.  A portion of that savings occurred due to the City resolving claims directly with Conway’s electrical subcontractor.

Safety concerns and defective work led the City to terminate Conway’s contract in March of 2016.  Conway was cited by the Washington State Department of Labor & Industries for a serious safety violation involving exposing workers to threat of serious injury or death in an unsafe utility trench (see accompanying photo). In addition, the City and its inspectors observed several instances of questionable safety practices during the work.  Despite finding that Conway breached its duty to follow safety regulations, the Court found that the safety concerns and violation was not sufficient cause for termination.  The City is considering whether to appeal this ruling.

The Court denied nearly all of Conway’s damages claims and did not award Conway any more than what was already due under the terms of the contract. In addition, the Court upheld many of the City’s counterclaims including Conway’s claim for replacing a misplaced concrete retaining wall.  Conway had attempted to bill the City for replacing the retaining wall after the City found that the wall had been installed in the wrong location.  The Court noted in its findings that Conway had “… unilaterally … (built) a nonconforming structure.”

The City has consistently recognized that it should pay for quality work.  However, Conway produced a significant amount of defective work on this project.  The City’s counterclaims for numerous defective concrete panels were denied by the Court because the unacceptable work was not discovered until after the City had already terminated Conway. The City is determining whether to appeal this ruling.  The City believes that under the terms of the contract it is not required to pay for defective work regardless of when it is discovered.  Despite Conway’s statements to the contrary, at no time did Conway agree to replace the defective panels. 

A final hearing in the case to determine whether Conway is entitled to receive attorney fees is scheduled for March 21, 2018.  The City is evaluating whether to appeal the Court’s earlier decision that Conway’s safety violations and defective work were not sufficient reason to terminate the construction contract for this heavily-travelled arterial.  The City will also consider the results of the motion to award attorney fees and the cost of further litigation in determining whether to pursue an appeal of the Court’s rulings.

Contact:  Brenda Fritsvold, Public Affairs Officer, 253-770-3370

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