Editor’s Notes

A choice of venue clause appears to be classic contractual boilerplate language: boring, standard, and likely inconsequential. The clause stipulates the jurisdiction and the court in which any litigation must occur. In application, however, the clause is significant. It affects the cost and convenience of litigation. It creates – in appearance, if not in fact – “home field advantage.”

In response to these concerns, some legislatures have restricted the enforceability of choice of venue clauses. The state of Washington rendered unenforceable clauses in county public works contracts that require litigation in the county where the project is located. The statute left unchanged, however, a separate provision that requires county project owners to sue contractors in the county where the contractor’s home office is located. This has produced an incongruous situation.

A Washington appellate court has ruled that a contractor could not be forced to sue the county government in the county where the project was located. But the county was entitled to sue the contractor in the local county court because the contractor was headquartered there. In other words, the county, on behalf of the taxpayers, could compete on the home field in spite of the anti-choice of venue statute.

The other case in this issue involved a “Certificate of Merit” required by state statute in a suit against design professionals. The failure to include a certificate with the original complaint necessitated dismissal of the suit, calling into question the project owner’s ability to timely re-file a suit against the A/Es.




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