Marc Zimet’s trial victory in a construction defect case was recently affirmed by the Court of Appeals. Appellant was the general contractor which was party to an arbitration with the homeowner based upon a litany of alleged defects. Appellant attempted to drag our client (an HVAC subcontractor), into the arbitration pursuant to an unsigned subcontract agreement which the appellant alleged bound our client.
Although our client initially participated in the arbitration, once our office was retained to represent the client, we immediately filed an action for declaratory relief in superior court based upon the lack of any signed contract between the insured and Appellant. In the absence of any signed agreement between the parties, the trial court ruled that the only operative agreement between the parties was the insured’s written proposal, which did not include an arbitration provision (or, perhaps more importantly, an indemnity or attorneys’ fee provision).
The Court of Appeals agreed, stating that our client’s early participation in the arbitration did not serve to deny it the right to a jury and an appeal (both of which would be waived in arbitration). Moreover, the Court of Appeals was not persuaded by the appellant’s contention that the insured’s performance of work consistent with the terms of the proposed (but unsigned) subcontract proved that our client agreed to the terms of such proposed subcontract.