402 A.2d 1275 (D.C. 1979), 13821, Western Union Tel. Co. v. Massman Const. Co.

Docket Nº:13821.
Citation:402 A.2d 1275
Party Name:WESTERN UNION TELEGRAPH COMPANY, Appellant, v. MASSMAN CONSTRUCTION COMPANY and Fred J. Early, Jr., Company, Inc., Appellees.
Case Date:June 19, 1979
Court:Court of Appeals of Columbia District

Page 1275

402 A.2d 1275 (D.C. 1979)



MASSMAN CONSTRUCTION COMPANY and Fred J. Early, Jr., Company, Inc., Appellees.

No. 13821.

Court of Appeals of Columbia District

June 19, 1979

Argued April 16, 1979.

Page 1276

Kevin W. Carmody, Washington, D. C., for appellant. Michaela M. Twomey, Washington, D. C., also filed an appearance for appellant.

J. Joseph Barse, Washington, D. C., for appellees.

Before NEWMAN, Chief Judge, and KERN and HARRIS, Associate Judges.

KERN, Associate Judge:

Appellant Western Union seeks reversal of the trial court's ruling that its claim against appellees for recovery of damages is grounded in tort, not contract, and therefore must be dismissed as untimely filed under the applicable statute of limitations, D.C.Code 1973, s 12-301(3), which commenced in its view to run from the date of damage to appellant's facilities. The court, in dismissing the complaint, rejected appellant's theory that it was a third-party beneficiary of a contract to which appellees were promisors. Instead, the court found that appellant was merely an incidental beneficiary to the contract and therefore unable to assert rights under it.

The record reflects that in May 1972, the Washington Metropolitan Area Transit Authority (WMATA) contracted with appellees (operating as a joint venture under the name of Early-Massman) for the construction of part of the McPherson Square section of the Metro subway system. As part of the contract Early-Massman agreed to maintain, protect and restore those utilities affected by the construction, to perform the construction in such a manner as to keep existing utilities in operation and to repair at its expense all damage to utilities caused by its work. Among the utilities named in the contract were "Telegraph Company Facilities." No work could begin until Early-Massman had located utility facilities and submitted its plans to appellant and other utility owners for approval. The contract further required collaboration between Early-Massman and all utility owners in preparation of schedules and working drawings that affected the utilities.

On June 20, 1973, Early-Massman struck and damaged appellant's underground equipment. Appellant made temporary repairs on its facilities in order to maintain service and sent Early-Massman a bill on March 11, 1974 for $807.21...

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