What is the effect of RCW19.100.190 on provisions in the 360 Painting franchise agreement requiring franchisees to waive exemplary damages?
360_Painting Franchise · 2025 FDDAnswer from 2025 FDD Document
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- Waiver of Exemplary & Punitive Damages. RCW19.100.190 permitsfranchiseesto seek treble damages under certain circumstances.
Accordingly, provisions contained in the franchise agreementor elsewhere requiringfranchiseestowaive exemplary,punitive,or similardamagesarevoid, exceptwhenexecutedpursuanttoanegotiatedsettlementafter the agreement is in effect and where the parties are represented by independent counsel, in accordancewithRCW19.100.220(2).
Source: Item 17 — RENEWAL, TERMINATION, TRANSFER, AND DISPUTE RESOLUTION (FDD pages 42–46)
What This Means (2025 FDD)
According to the 2025 FDD, RCW19.100.190 permits franchisees to seek treble damages under certain circumstances. As a result, any provisions within the 360 Painting franchise agreement that require franchisees to waive exemplary, punitive, or similar damages are void. This means that 360 Painting franchisees in Washington State are not required to waive their right to seek such damages.
However, there is an exception to this rule. If a negotiated settlement is reached after the franchise agreement is already in effect, and both parties are represented by independent counsel, then a waiver of exemplary, punitive, or similar damages may be valid, in accordance with RCW19.100.220(2). This exception allows for flexibility in resolving disputes, provided that both the franchisee and 360 Painting have legal representation and agree to the terms of the settlement.
In practical terms, this addendum ensures that 360 Painting franchisees in Washington State retain their rights to pursue exemplary or punitive damages unless specific conditions for a negotiated settlement are met. This protection is particularly important in the context of franchise agreements, where power imbalances may exist between the franchisor and franchisee.