Anthony's Pier Four, Inc. v. Crandall Dry Dock Engineers, Inc.

• Decision Date: 26 February 1986
• Citation: 396 Mass. 818,489 N.E.2d 172
• Parties: ANTHONY'S PIER FOUR, INC. v. CRANDALL DRY DOCK ENGINEERS, INC. et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 172

489 N.E.2d 172

396 Mass. 818

ANTHONY'S PIER FOUR, INC. v. CRANDALL DRY DOCK ENGINEERS, INC. et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 7, 1985.

Decided Feb. 26, 1986.

Jean M. Kelley, Boston, for plaintiff.

Phyllis Fine Menken (John M. Reed, Boston, with her), for Haley & Aldrich, Inc.

Robert S. Potters, Boston, for Crandall Dry Dock Engineers, Inc.

Before HENNESSEY, C.J., and WILKINS, ABRAMS and LYNCH, JJ.

ABRAMS, Justice.

On February 6 and 7, 1978, the "Great Blizzard of 1978" swept through Boston. ² High winds and flood tides in Boston Harbor caused the S.S. Peter Stuyvesant to rise off an underwater cradle, break loose from its mooring, and capsize, resulting in a total loss of the ship. In this case, we consider whether the owner of the ship, Anthony's Pier Four, Inc., may maintain its action against the designers of the mooring system for breach of express warranty.

The plaintiff commenced this action in 1980, naming as defendants the Perini Corporation (Perini), Haley & Aldrich, Inc. (Haley & Aldrich), and Crandall Dry Dock Engineering, Inc. (Crandall Dry Dock). On December 30, 1983, the plaintiff filed an amended complaint with leave of court, adding Bond Brothers, Inc. (Bond), as a party defendant and adding factual allegations against all defendants. The amended complaint alleges negligent design and construction, breach of implied warranties, and breach of express warranties. All four defendants moved for summary judgment, and their motions were allowed. The plaintiff appealed from the judgments entered for Haley & Aldrich and Crandall Dry Dock. We granted the plaintiff's application for direct appellate review. We affirm the judgment for Haley & Aldrich. Because there is a genuine issue of material fact on the claim against Crandall Dry Dock for breach of an express warranty, we reverse in part the judgment for that defendant.

1. The complaint. We summarize the allegations and factual circumstances giving rise to the complaint. The plaintiff is the owner of Anthony's Pier Four, a restaurant located in Boston. In 1968, the plaintiff purchased the S.S. Peter Stuyvesant, a former Hudson River cruise ship, for the purpose of converting it to a cocktail lounge and function area for the restaurant. The president of the plaintiff corporation, Anthony Athanas, intended permanently to moor the ship in the tide waters of Boston Harbor, alongside the pier immediately adjacent to the restaurant. Athanas consulted with James Haley of Haley & Aldrich, who in turn consulted with Paul Crandall of Crandall Dry Dock, to determine how best to achieve this installation. ³

Crandall Dry Dock agreed to design a foundation and mooring system for the ship. The concept of the design was that a foundation, consisting of wood piles sunk into the ocean floor, would support a timber cradle, and the cradle, in turn, would support the ship. Concrete ballast was to hold the ship down in the cradle against normal tidal forces, except that once or twice a year the boat would float during the high equinoctial tides. Two stanchions (vertical pipes) were connected by mooring attachments to the boat so that when it floated during severe tides, the mooring attachments would secure the boat and then guide it properly back into place on the cradle as the tide receded. Once the design was presented and approved, the plaintiff entered into written contracts with Perini and Crandall Dry Dock for the construction of the foundation and mooring system. The work was completed and the ship was floated into place in October, 1968. The defendants ended their involvement with the project shortly thereafter. Over nine years later, during the Great Blizzard of 1978, extraordinarily high tides caused the Stuyvesant to float off its cradle. The mooring apparatus allegedly failed, and the ship capsized and sank.

In count I of the amended complaint, the plaintiff alleges that the defendants were negligent in the design and construction of the cradle and mooring system. In count II, the plaintiff alleges breach of implied warranties. In count III, the plaintiff alleges that both defendants broke express warranties that the mooring system would be sufficient to withstand wind and tidal forces and that Crandall Dry Dock failed to comply with its obligation under the written construction contract to provide workmen and subcontractors skilled in their trades. ⁴

The defendants moved for summary judgment on the ground that the plaintiff's claim was time-barred by G.L. c. 260, § 2B, ⁵ a statute of repose, as well as a statute of limitations, which limits the time period within which tort claims may be brought against design professionals. See Tindol v. Boston Hous. Auth., 396 Mass. 515, 517 & n. 4, 487 N.E.2d 488 (1986); Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514 (1982). These motions were allowed. On appeal, the plaintiff argues that G.L. c. 260, § 2B, does not apply because its claim for breach of express warranty is a contract action, rather than a tort action. ⁶ The plaintiff further argues that the applicable statute of limitations is G.L. c. 260, § 2, ⁷ which allows contract actions to be commenced within six years from the date on which the cause of action accrues. The plaintiff contends that its cause of action accrued on February 7, 1978, when it first discovered the defendants' breach. Finally, the plaintiff argues that there exist genuine issues of material fact which make summary judgment inappropriate.

2. Standard for summary judgment. A judge presented with a motion for summary judgment must consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any" in determining whether summary judgment is appropriate. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). The burden on the moving party is to "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. The evidence is "considered with an indulgence in the [opposing party's] favor." National Ass'n. of Gov't. Employees v. Central Broadcasting Corp., 379 Mass. 220, 231, 396 N.E.2d 996 (1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788 (1980). We have reviewed the standards for summary judgment and the burden on the moving and opposing parties in two recent cases, Godbout v. Cousens, 396 Mass. 254, 485 N.E.2d 940 (1985), and Madsen v. Erwin, 395 Mass. 715, 481 N.E.2d 1160 (1985).

3. Applicability of G.L. c. 260, § 2B. The defendants first argue that the plaintiff's claim is barred by the six-year statute of repose, G.L. c. 260, § 2B. We disagree.

The plaintiff's claim is for breach of express warranty. The theory of such a claim is that the defendants are liable to the plaintiff for failure to provide a design that meets a standard of performance allegedly promised by the defendants. Because the standard of performance is set by the defendant's promises, rather than imposed by law, an express warranty claim is and generally has been understood to be an action of contract, rather than of tort. See W. Prosser & W. Keeton, Torts § 92, at 656, 657 (5th ed. 1984). On its face, § 2B applies only to "[a]ctions of tort." Thus, we reaffirm our holding that "G.L. c. 260, § 2B, does not apply to contract actions." Klein v. Catalano, 386 Mass. 701, 718, 437 N.E.2d 514 (1982). If a design professional expressly warrants a certain result, "the plaintiff may maintain an action for breach of express warranty." Id. at 720, 437 N.E.2d 514.

A plaintiff may not, of course, escape the consequences of a statute of repose or statute of limitations on tort actions merely by labelling the claim as contractual. The court must look to the "gist of the action." Hendrickson v. Sears, 365 Mass. 83, 85, 310 N.E.2d 131 (1974). Thus, in Klein, supra, we held that § 2B would bar a breach of implied warranty claim where the elements for breach of implied warranty and for negligence claims are the same. Id., 386 Mass. at 719 & n. 19, 437 N.E.2d 514. A claim for breach of express warranty differs, however, from a negligence claim because the plaintiff must demonstrate that the defendant promised a specific result. See Clevenger v. Haling, 379 Mass. 154, 157-159, 394 N.E.2d 1119 (1979); Sullivan v. O'Connor, 363 Mass. 579, 581-582, 296 N.E.2d 183 (1973). Cf. G.L. c. 106, § 2-313 (1984 ed.). Here the plaintiff alleges that the defendants promised that the mooring system would be sufficient and adequate to keep the Stuyvesant permanently moored under expected wind and tidal conditions. This promise, if given, imposes a higher duty on the defendants than the implied promise that in designing the mooring system they would "exercise that standard of reasonable care required of members of [their] profession." Klein, supra, 386 Mass. at 719, 437 N.E.2d 514. We therefore conclude that § 2B does not apply to the plaintiff's express warranty claims. ⁸

4. Discovery rule in contract actions. The defendants contend that, even if § 2B does not apply, then the claims would nonetheless be barred by the six-year statute of limitations for contract actions under G.L. c. 260, § 2. We first consider the applicability of § 2 to the plaintiff's claims that Haley & Aldrich and Crandall Dry Dock expressly warranted that the design of the mooring system would be sufficient. The plaintiff argues that its cause of action did not accrue until 1978, when, by reason of the failure of the system, it first discovered the defendants' breach. The defendants respond that in a contract action the statute of limitations begins to run on the date of the breach, not on the date of discovery. See Wolverine Ins. Co. v. Tower Iron Works, Inc., 370 F.2d 700, 702 (1st Cir.1966). If there was a breach, the defendants argue, it occurred in 1968 and the plaintiff's action is now time-barred.

"The determination of when a cause of action 'accrues' has generally been...