SEATTLE (LN) — U.S. District Judge Robert S. Lasnik on Monday denied a motion to dismiss a claim seeking to hold Shields Installation Commercial Flooring officer Kimberly L. Frakes personally liable for unpaid employee benefit contributions, ruling that her conduct may establish assent to the trust agreements despite her not signing them.
The Board of Trustees of the Employee Painters’ Trust and related entities sued Shields Installation and Frakes, alleging the company failed to remit fringe benefit contributions for work performed between September 2024 and April 2025. The unpaid contributions, liquidated damages, interest, and attorney’s fees total $0.23 million.
Plaintiffs seek to enforce officer-liability provisions in the Trust Agreements for the Employee Painters’ Trust and Western Washington Painters Defined Contribution Pension Trust, which impose personal liability on corporate officers responsible for payment of contributions.
Frakes moved to dismiss the personal liability claim, arguing that Washington’s statute of frauds requires a writing signed by her personally to enforce the obligation. She contended that because she did not sign the Collective Bargaining Agreement or the Trust Agreements, the alleged obligation is void.
Lasnik rejected the statute-of-frauds argument, noting that the claim arises under ERISA and the Labor Management Relations Act, meaning federal common law governs whether Frakes manifested assent to be bound.
The judge acknowledged that federal common law does not eliminate the need for mutual assent, but ruled that assent may be shown through conduct manifesting an intent to be bound, not just by an individual signature.
Plaintiffs allege Frakes was a primary manager, officer, director, owner, principal, and key employee with duties including decision-making regarding operations, procurement, hiring, financial affairs, and remitting contributions to the trusts.
The complaint alleges that Frakes knew of Shields Installation’s obligations under the agreements and, by agreeing to the terms of the collective bargaining agreement, separately agreed to the trust agreements containing the officer-liability provision.
Lasnik distinguished the case from his own 2008 summary judgment decision in Employee Painters Trust Health & Welfare Fund v. Pro-Tec Fireproofing, Inc., where he declined to impose personal liability on a nonsignatory officer. He noted that Pro-Tec was decided on a developed factual record where undisputed facts did not show personal liability, whereas this case is stage.
The judge cited Employee Painters’ Trust v. McIntosh Mirror Door & Glass Inc., where he denied a motion to dismiss based on similar allegations that the defendant was an owner, officer, and decisionmaker with responsibility for trust contributions.
"These allegations are not robust, and plaintiffs will ultimately need evidence showing that Frakes personally assented... but Rule 12(b)(6) does not require plaintiffs to prove assent now," Lasnik wrote.
He concluded that the allegations of Frakes’ officer role, her responsibility for payroll and contributions, her knowledge of the obligations, and her alleged separate agreement to the trust agreements are sufficient, though barely, to state a plausible claim.
Frakes may renew her arguments at summary judgment if the evidence fails to show personal assent.
Lasnik is a George H.W. Bush appointee.