Abajian v. Truexcullins, Inc.

• Decision Date: 25 August 2017
• Docket Number: No. 2016-317,2016-317
• Citation: 2017 VT 74
• Parties: John C. Abajian, M.D. and Margaret C. Abajian v. TruexCullins, Inc. and Thermal Efficiency Construction, Ltd.
• Court: Vermont Supreme Court

2017 VT 74

John C. Abajian, M.D. and Margaret C. Abajian v. TruexCullins, Inc. and Thermal Efficiency Construction, Ltd.

No. 2016-317

Supreme Court of Vermont

January Term, 2017

August 25, 2017

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Chittenden Unit, Civil Division

Helen M. Toor, J.

David Bond of Strouse & Bond, PLLC, Burlington, for Plaintiffs-Appellants.

Evan A. Foxx and Christopher D. Ekman of Heilmann, Ekman, Cooley & Gagnon, Burlington, for Defendant-Appellee TruexCullins, Inc.

Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Defendant-Appellee Thermal Efficiency Construction, Ltd.

PRESENT: Reiber, C.J., Dooley,¹ Skoglund, Robinson and Eaton, JJ.

¶ 1. EATON, J. Plaintiffs had a new roof installed on their home in 2001. In 2014, after the roof turned out to be defective, plaintiffs sued the architecture and construction firms that designed and installed the roof for negligence and breach of contract. The trial court granted summary judgment to defendants on the ground that the action was barred by the statute of limitations. We now affirm.

¶ 2. The following facts are undisputed.² In 2001, plaintiffs Margaret and John Abajian hired architectural firm TruexCullins, Inc., to design additions to both ends of their home in Williston, Vermont. Plaintiffs hired Thermal Efficiency Construction, Ltd. (TEC) to serve as the general contractor for the project. As part of the project, a new metal standing seam roof was installed on the entire house. TEC contracted with Murphy's Metals, Inc. to do the roofing work. The roof was installed during the winter of 2001-2002.

¶ 3. Plaintiffs had experienced problems with ice damming on their old roof, which was shingled. Defendants recommended that plaintiffs install a metal roof to alleviate the problem.³ Plaintiffs accepted the suggestion, hoping that the metal roof would result in fewer ice dams. Mr. Abajian⁴ testified in his deposition that he "thought that the metal roof was going to eliminate" the ice damming.

¶ 4. Very soon after the new roof was complete, plaintiffs noticed that ice dams were continuing to occur at the eaves and that the problem was worse than before. Plaintiff John Abajian called third-party defendant Murphy's to shovel the roof shortly after it was installed. Mr. Abajian also hired a different company to install snow guards on the roof to prevent snow from sliding down the roof toward the eaves. It was Mr. Abajian's idea to install the snow guards; he did not discuss this idea with defendants. In 2004, Mr. Abajian had the snow guard installer return to move the guards higher up the roof because he thought they had been installed too low. Mrs. Abajian testified that the snow guards made the ice damming worse.

¶ 5. During the winter of 2002-2003, water leaked through the roof and caused damage to the interior of plaintiffs' home. Plaintiffs' master bedroom and bathroom, office, dining room, living room, and kitchen were damaged. According to Mrs. Abajian, the walls "bubbled up, and everything peeled off." Although plaintiffs had experienced ice dams on the roof since the 1970s, the leaking was unprecedented, according to Mr. Abajian.⁵ Plaintiffs filed an insurance claim to cover the cost of repainting.⁶

¶ 6. Plaintiffs believed the damage they experienced in 2002 and 2003 was due to ice damming that resulted in water coming through the roof. Mr. Abajian believed that the water was penetrating the roof "because these seams weren't good enough." In the summer of 2003, Mr. Abajian had one of his sons apply caulking along the standing seams in an attempt to address what he thought was the source of the problem. Besides the leaking which resulted in the insurance claim, plaintiffs noticed leaks at least two other times between 2002 and 2012. Neither of these leaks required interior repairs.

¶ 7. Within a few years after the metal roof was installed, rust spots began to appear on the roof's surface. Plaintiffs first noticed the rust spots in 2005. Mr. Abajian believed rust was eating through the galvanized metal from above, which struck him as unusual. He and his sons painted over the rust spots when they appeared, hoping that it would eliminate the problem. Mrs.Abajian was concerned about the rust spots on the roof panels because "[t]hey were disintegrating, I believe. Oxidizing." Plaintiffs painted over rust spots approximately every other year starting in 2005.

¶ 8. By 2005, Mr. Abajian understood that the metal roof was not performing consistent with his expectations. Mrs. Abajian knew in 2005 that the roof was "failing" because it was rusting.⁷

¶ 9. During the winter of 2012-2013, plaintiffs experienced major roof leaks that caused damage throughout the interior of the house. They hired a builder, Polli Construction, Inc., to investigate the cause. When Polli removed the roof panels in the summer of 2014, it found widespread rusting on the underside of the panels. Portions of the underlayment were also rotted. Polli opined that the corrosion was due to inadequate insulation.

¶ 10. On November 6, 2014, plaintiffs filed a complaint alleging negligence and breach of contract against defendants TruexCullins and TEC. TEC asserted a third-party claim against Murphy's. Following discovery, TruexCullins and TEC moved for summary judgment on the ground that the six-year statute of limitations applicable to civil actions barred plaintiffs' claims. The trial court granted the motion. It ruled that no reasonable jury could find that plaintiffs "were not on inquiry notice of some roof defect by 2005," and therefore plaintiffs' action was untimely.

¶ 11. We review summary judgment rulings de novo, using the same standard as the trial court. Gallipo v. City of Rutland, 2005 VT 83, ¶ 13, 178 Vt. 244, 882 A.2d 1177. We will affirm if, "viewing the evidence in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law."Glassford v. Dufresne & Assocs., P.C., 2015 VT 77, ¶ 10, 199 Vt. 422, 124 A.3d 822 (quotation omitted); V.R.C.P. 56(a).

¶ 12. A civil action must "be commenced within six years after the cause of action accrues." 12 V.S.A. § 511. A cause of action accrues upon "discovery of facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery." Union Sch. Dist. No. 20 v. Lench, 134 Vt. 424, 427, 365 A.2d 508, 511 (1976) (quotation omitted); see also Univ. of Vt. v. W.R. Grace & Co., 152 Vt. 287, 290, 565 A.2d 1354, 1357 (1989) (holding that discovery rule applies to § 511). At that point, the limitation period begins to run, "and the plaintiff is ultimately chargeable with notice of all the facts that could have been obtained by the exercise of reasonable diligence in prosecuting the inquiry." Agency of Nat. Res. v. Towns, 168 Vt. 449, 452, 724 A.2d 1022, 1024 (1998) (quotation and alteration omitted).

¶ 13. Plaintiffs contend that the issue of when their claims accrued was a question of fact that was for the jury rather than the trial court to decide. They argue that they do not have any expertise in roofing design or construction and thus had no way of knowing that the roof was defective until Polli removed the roof panels in 2014 and discovered the corrosion underneath. According to plaintiffs, there was nothing to put them on inquiry notice regarding the condition of the roof until they experienced major leaks during the winter of 2012-13.

¶ 14. Plaintiffs are correct that the determination of when a claim accrues is usually reserved for the trier of fact. Towns, 168 Vt. at 454, 724 A.2d at 1025. However, "it is appropriate for a court to determine the issue when there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party on that issue." Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, ¶ 48, 186 Vt. 396, 987 A.2d 960. This is such a case.

¶ 15. The undisputed facts show that plaintiffs' brand-new roof began to leak almost immediately after it was installed, resulting in such extensive interior damage that they filed aninsurance claim to cover the cost of repainting. Plaintiffs had experienced ice damming before, but there is no evidence that the previous ice dams caused extensive leaking and interior water damage. They installed a metal roof in 2001-2002 with the hope that it would reduce ice damming. Plaintiffs recognized that the new roof had a problem because they attempted to address it by caulking the seams. However, they did not contact TruexCullins or TEC or anyone else to investigate the source of the problem. "New roofs do not leak; they do not require a period to 'settle' before they become watertight." Bernard Schoninger Shopping Ctrs., Ltd. v. J.P.S. Elastomerics, Corp., 102 F.3d 1173, 1179 (11th Cir. 1997). In Vermont, like anywhere else, a brand-new roof is expected to keep water out of the building it covers. A reasonable homeowner who had just paid to have his or her entire roof replaced would likely investigate the condition of the roof if he or she experienced significant, unprecedented leaking.

¶ 16. Even if reasonable minds could differ as to whether the first leak was enough to put plaintiffs on notice of a roof defect, see A.J. Aberman, Inc. v. Funk Bldg. Corp., 420 A.2d 594, 601 (Pa. Super. Ct. 1980), we agree with the trial court that by 2005, plaintiffs were aware of facts sufficient to lead any...