Structure of Civil Courts

Washington has a Supreme Court, Courts of Appeals divided into three divisions, the Superior Court, and courts of limited jurisdiction including District Courts. See, generally, Titles 2 and 3, Revised Code of Washington (RCW). The three appellate divisions include Division I (including Seattle and Everett); Division II (including Tacoma and Vancouver); and Division III (including Spokane and counties in Eastern Washington).

For practical purposes, most litigants in construction defect matters pursue claims in the Superior Court. This means that discretionary appeals and appeals as of right are within the appellate jurisdiction of the Courts of Appeal, in the division that encompasses the county in which the Superior Court matter is pending. Writs of Certiorari for review of decisions in the Courts of Appeal (and rarely, Petitions for Direct Review in Superior Court matters) are within the jurisdiction of the Supreme Court.

Precedential decisions are made by the Courts of Appeals, provided such decisions are published. The Superior Courts do not publish decisions, and typically are not required to make written findings of fact and conclusions of law when entertaining dispositive motions, unless such dispositive motions do not dispose of all claims and parties. See Civil Rule 56(d).

Basis of Jurisdiction

Washington’s court of general, original jurisdiction is the Superior Court. See RCW 2.08.010. Each of Washington’s thirty-nine counties has a Superior Court, and as such, local rules and general orders applicable to actions in each such court. The Superior Court also has appellate jurisdiction over matters in courts of limited jurisdiction, which would include Washington’s District Courts. See RCW 2.08.020.

Washington’s District Courts have concurrent jurisdiction with the Superior Court over certain matters where the amount at issue does not exceed one hundred thousand dollars, exclusive of interest, costs, and attorneys’ fees, including among other things, actions: arising on contract for the recovery of money; damages for personal injury or injury to personal or real property; actions upon a bond where the amount in principal does not exceed fifty thousand dollars; and proceedings to issue certain writs of attachment, garnishment and replevin. See RCW 3.66.020.

Commercial Courts

Washington has not established commercial courts or any programs within the courts intended to handle litigation of commercial disputes.

Mediation

Washington has mandatory mediation for disputes “where the sole relief sought is a money judgment, and where no party asserts a claim in excess of fifteen thousand dollars, or if approved by the superior court of a county by two-thirds or greater vote of the judges thereof, up to one hundred thousand dollars, exclusive of interest and costs, are subject to civil arbitration.” RCW 7.06.020.

For practical purposes, the counties with the highest population and density (i.e., King, Pierce, Snohomish, Spokane, and Clark) comprise about two-thirds of the state’s population, and have all adopted the increased damages cap.

Mandatory mediation is governed by the Mandatory Arbitration Rules (MAR) which “apply to mandatory arbitration of civil actions under RCW 7.06. These rules do not apply to arbitration by private agreement or to arbitration under other statutes, except by stipulation under rule 8.1.” MAR 1.1. Courts retain jurisdiction over matters referred to arbitration and are empowered to determine arbitrability as a threshold matter. See MAR 2.2. Parties to an award following mandatory arbitration are entitled to request trial de novo in the Superior Court. See MAR 7.1.

Since alternative dispute resolution clauses are ubiquitous in many types of contracts, such private agreements are worth noting. Both state and federal law strongly favor arbitration and require all presumptions to be made in favor of arbitration. Zuver v. Airtouch Commc’ns, Inc., 153 Wn.2d 293, 301, 103 P.3d 753 (2004).

Under Washington law, an arbitration agreement “is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of contract.” RCW 7.04A.060(1). This is substantially similar to the command under the Federal Arbitration Act that an agreement to arbitrate is “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Washington law vests courts with the power to determine “whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.” RCW 7.04A.060(2).

It is important to remember that courts will analyze choice of law with respect to an agreement to arbitrate and may ultimately apply substantive law pursuant to a contract provision or from the state where the contract was formed, notwithstanding the situs of litigation. See, e.g., Brown v. MHN Government Services, Inc., 178 Wn.2d 258, 263, 306 P.3d 948 (2013) (recognizing that Washington courts generally enforce choice of law provisions; discussing the elements required for a court to disregard such provisions). Washington courts regularly decide whether choice of law and forum selection clauses in arbitration clauses are enforceable. See, e.g., McKee v. AT & T Corp., 164 Wn.2d 372, 384-85, 191 P.3d 845 (2008).