Appeal from Circuit Court, Marion County. Val D. Sloper, Judge. No. 76602.
Peter S. Herman, Senior Counsel, Salem, argued the cause for appellant. With him on the briefs were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Ridgway K. Foley, Jr., Portland, argued the cause for respondents. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe and Kenneth E. Roberts, Portland.
Langtry, Judge. Schwab, Chief Judge, and Holman, Judge.
Plaintiff, State of Oregon, appeals from an order abating its malpractice action for damages against defendant architects. Two interrelated questions are presented: (1) whether the order from which the appeal was taken had the finality to be an appealable order, and (2) whether the dispute growing out of the contract between plaintiff and defendants (defendants were to perform architectural services in the
construction of a food services building at Fairview Hospital and Training Center) is one which must be arbitrated.
The plaintiff contends in its complaint that the contract for the construction of the building was completed by virtue of a final acceptance of the building by plaintiff on September 25, 1968 and a one-year guarantee inspection of the completed building on September 16, 1969,*fn1 a certificate given for final payment of money under the contract to the contractor by the defendant architects on June 24, 1970, and final payment to the construction contractor on or about July 1, 1970. The complaint alleges that continuing water leaks in the floor between the first and second stories of the building creates a serious sanitation and health hazard which requires replacement of portions of the floor and use of a catering service to feed the Fairview home population during the time the repair work is done, that these general and special damages in a total amount of $292,118 were caused by defendants' negligence, lack of care and professional skill in the designing, planning and supervision of the construction of the building.
It was against this complaint that the plea in abatement prevailed. The defendants rely upon Article IX of the contract between plaintiff and defendants which provides:
"All questions in dispute under this agreement shall be submitted to a board of arbitration composed of three members * * *. Such board shall meet as promptly and frequently as may be
necessary in order not to impede progress of the work, and shall, within forty-eight hours after any question is submitted to it, render its findings and recommendations ...