Beckenstein v. Potter and Carrier, Inc.

• Decision Date: 16 August 1983
• Court: Connecticut Supreme Court
• Parties: , 37 UCC Rep.Serv. 158 Louis BECKENSTEIN et al. v. POTTER AND CARRIER, INC., et al.

Page 18

464 A.2d 18

191 Conn. 150, 37 UCC Rep.Serv. 158

Louis BECKENSTEIN et al. v. POTTER AND CARRIER, INC., et al.

Supreme Court of Connecticut.

Argued April 7, 1983.

Decided Aug. 16, 1983.

Alexandra Davis, Hartford, with whom were Wesley W. Horton, Hartford, and, on the brief, William R. Moller, Hartford, for appellants (plaintiffs).

John Crosskey, Hartford, with whom were Robert Poyourow, Charleston, W.Va., and, on the brief, David J. Elliott, Hartford, for appellee (defendant Gen. Aniline and Film Corp.).

Before PETERS, HEALEY, PARSKEY, GRILLO and DUPONT, JJ.

ARTHUR H. HEALEY, Associate Justice.

In January, 1975, the plaintiffs, Henry and Louis Beckenstein (plaintiffs), filed this action against the defendants, Potter & Carrier, Inc. (Potter & Carrier), and General Aniline & Film Corporation (GAF). The plaintiffs claimed that Potter & Carrier had installed a defective roof on a manufacturing building constructed by the plaintiffs and that the materials for said roof had been manufactured by GAF. The plaintiffs have appealed the court's decision, Alexander, J., sustaining a demurrer to two counts in their original complaint alleging a breach of implied warranty, and the trial court's decision, Aspell, J., to direct a verdict for the defendants on the two counts in their substituted complaint. The first count of the substituted complaint alleged that Potter & Carrier had breached its contract with the plaintiffs by failing to construct the roof in a workmanlike manner. It also alleged that Potter & Carrier was the agent of GAF. The second count in the substituted complaint was based upon product liability.

In June of 1968, the plaintiffs entered into an agreement with Colt Industries, Inc. (Colt) whereby Colt conveyed a parcel of land located in the town of Rocky Hill to the plaintiffs, and the plaintiffs agreed to construct a manufacturing plant which they would then lease to Colt. In addition, Colt was given an option to repurchase both the land and the building under certain conditions. The lease between the parties contained a clause which stated, in part, that the building was to be constructed "substantially in accordance with the outline plans and specifications agreed upon by the parties." Some of the plans and specifications referred to in the lease were introduced into evidence. Henry Beckenstein also testified that it was his understanding that he was required to construct the building in accordance with these plans and specifications.

The plaintiffs undertook to construct the building through a corporation which they owned, National Building Supply Company. This company acted as the "coordinator" for the project. In addition, the general superintendent ¹ for the project was William Muller, one of whose responsibilities was to hire the subcontractors.

On May 29, 1968, Muller entered into a contract with Potter & Carrier to construct the roof of the building for $37,000. One of the plans for the building stated that the roof was to be a "typical roof construction, twenty-year bond." The contract entered into between Muller and Potter & Carrier called for the latter to install, inter alia, a "20 year smooth surface asbestos roof (Bonded)."

As explained by one of the plaintiffs' witnesses, Robert Berryman, a roofing bond was something offered by the manufacturer of roofing materials, whereby, if one paid a premium, the manufacturer would agree to make any repairs on the roof during the period that the bond was in effect. There was also a dollar limit as to how much a manufacturer would be obligated to spend in making any repairs. The bond issued by GAF in this case, for example, was a twenty year bond which bound GAF to make repairs up to a sum not to exceed $8970.

There was no agreement between the plaintiffs and GAF to issue the bond covering the Colt building. Rather, the bond was issued pursuant to an agreement entered into between Potter & Carrier and GAF. This agreement was entitled: "Approved Roofer's Agreement." In order to qualify for a bond pursuant to this agreement, Potter & Carrier had to satisfy certain conditions. For example, it had to notify GAF that it had been awarded a particular job at least two days before it commenced working on such job, as well as sending GAF notice of when it completed the job. In addition, the roofer had to comply with certain specifications of GAF governing the application of a particular roof. One of these conditions was that if GAF determined that any additional work or materials were required, it could direct Potter & Carrier to complete them. Finally, once a bond had been issued, the agreement between Potter & Carrier and GAF required Potter & Carrier to give a two year guarantee to GAF for its workmanship during which time Potter & Carrier was obligated to make all repairs.

Although Potter & Carrier used GAF materials in installing the roof on the Colt building, as noted previously neither the architectural plans nor Potter & Carrier's contract with Muller called for GAF products. Muller, in fact, testified that there were "several" different kinds of twenty year bonded roofs.

In regard to the date when Potter & Carrier installed the roof, Henry Beckenstein testified that he believed that the roof was completed prior to the end of 1968, and that Colt moved in by the end of 1968 or the beginning of 1969. ² Muller, the plaintiffs' superintendent for the project, testified that the building was occupied by the end of 1968. The plaintiffs also introduced into evidence five bills submitted to them by Potter & Carrier. The first bill was dated August 21, 1968, and indicated that the roof was 85 percent complete. There was also a bill dated September 18, 1968, and two that were dated January 27, 1969. The final bill was dated March 26, 1969. The amount of this last bill was only $93.25.

The defendants introduced two certificates of occupancy issued by the building department of the town of Rocky Hill. The first certificate was a temporary certificate and restricted Colt to installing "machinery and/or other equipment." This certificate was dated November 12, 1968. The second certificate was dated January 24, 1969, and stated that the building was "completed."

Finally, the plaintiffs introduced the bond issued by GAF for the building. It stated that the date of completion was March 10, 1970. Henry Beckenstein testified, however, that the bond was received after the roof was completed and that March 10 was not the same date as when it was completed.

Henry Beckenstein testified that "[t]he roof started to leak almost immediately after the building was done. And they were plaguing us every time it rained." The plaintiffs called Potter & Carrier a number of times to try and get it repaired, but "[t]he next rain we had the same calls all over again. We called [Potter & Carrier]. [They] came again. That continued and continued and continued." Muller testified that the first winter, i.e., early 1969, after the roof was completed he went up on the roof and "saw many blisters and cracks. Two cracks, I believe. And what I saw I never seen before was that the cant [a triangle-like piece of wood that goes along the perimeter of the building] had pulled in." Beckenstein also testified that he had a discussion with a representative from GAF, William H. Barnett, and that the "gist" of their conversation was that they "discussed the fallacies of the roof.... Mr. Barnett was telling us that the roof was not applied properly...." He was also on the roof when Barnett had Potter & Carrier cut core samples out of the roof. The plaintiffs then introduced two letters sent by Barnett to Potter & Carrier dated April 30, 1971, and September 9, 1971, in which Barnett stated that the problems were "not normal" but that he did not know what exactly was causing the problems. He also suggested possible steps that could be taken to determine the cause. The plaintiffs also introduced a memorandum from another GAF employee, R.J. Sobol, to Barnett dated May 30, 1972, referring to an inspection of the roof they had made with Potter & Carrier and people representing the plaintiffs. It states, inter alia, that "John [Potter] ... did promise the owners that he would make whatever repairs necessary to put this roof in shape.... In private [Potter] asked me if we would stand part of the cost of these repairs and I reiterated what you told me and him--that it is not the responsibility of the bonding company." Finally, the plaintiffs introduced a letter dated November 1, 1974, from a GAF field sales manager to Barnett's boss indicating that the sales manager had tried to get in touch with the plaintiffs' attorney about setting up a meeting. It states, in part, that GAF has "a Bond issued on the Colt's facility at Rocky Hill and [two GAF employees] have been on this job on numerous occasions."

A meeting was finally held on November 14, 1974, at the request of the plaintiffs' attorney to discuss the roof. At the meeting Barnett indicated that the main problem with the roof was that the insulation which went underneath the roofing materials manufactured by GAF, was not adhered properly to the steel frame of the building.

Our disposition of the claims raised by the plaintiffs requires that we address these issues: (1) whether the court erred in directing a verdict for the defendants on the breach of contract count based upon its determination that the claim was barred by the applicable statute of limitations, General Statutes § 52-576; (2) whether the court erred in directing a verdict for the defendants on the product liability count based upon its determination that the claim was also barred by the applicable statute of limitations, Public Acts 1976, No. 76-293; and (3) whether the court erred in sustaining the demurrer.

We now turn to the statute of limitations defense that GAF raised to the plaintiffs' breach of contract claim. General Statutes § 52-576, as it...