Bicknell v. Richard M. Hearn Roofing & Remodeling, Inc., 68347
| Decision Date | 08 May 1984 |
| Docket Number | No. 68347,68347 |
| Citation | 318 S.E.2d 729,171 Ga.App. 128 |
| Court | Georgia Court of Appeals |
| Parties | BICKNELL v. RICHARD M. HEARN ROOFING & REMODELING, INC. |
James D. Patrick, Jr., Columbus, for appellant.
William B. Hardegree, Jerry A. Buchanan, Columbus, for appellee.
On March 16, 1978, the appellant, Larry Bicknell, contracted with the appellee, Richard M. Hearn Roofing and Remodeling, Inc. (Hearn), for the latter to re-roof a building in which Bicknell operated a dress shop. Hearn finished the roofing job on Bicknell's building on April 6 or April 7, 1978.
The contract provided that should Hearn give Bicknell "a written guarantee, the liability of the contractor shall be limited to the terms and provisions of such guarantee and confined to the work actually done hereunder, and nothing contained herein or to be contained in any such guarantee shall impose upon the contractor any liability for ... damage to interior fixtures, decorations, stock or equipment, due to leakage." Hearn extended a written 10-year guarantee on the roof regarding defects in material or workmanship, although there was some dispute over whether the guarantee was given at the time of contracting or upon the completion of the job.
In defining Hearn's liability, the guarantee provided that "if such material is found to be defective under the terms of this guarantee, or in the event a claim should be made under this guarantee as to workmanship, and/or in either event defects are found which cause leaks, the undersigned shall at its option, either make necessary repairs or corrections without charge, or allow a credit on the cost of replacing such defects at the then prevailing prices of the undersigned, at the rate of ten percent of the total cost of the same for each entire unexpired year of the period of this guarantee." The guarantee provided further that Hearn would not be liable for "damage to the building upon which such work has been done; nor to interior fixtures, decoration, stock or equipment, due to leakage..."
On or about February 12, 1981, Bicknell discovered a serious leak in the rear portion of the roof; the cumulative water leakage damaged the interior tile ceiling and carpet. Bicknell contacted Hearn about the problem, and despite at least three attempts by the latter to repair the roof, the leak was never eliminated. Hearn claimed that at the time of the attempted repairs, it appeared that Bicknell had removed some of the roofing flashing and that the roof had sustained some hail damage (which would not have been covered under the guarantee). Following the instructions of the company's insurer's claims adjuster, after late 1981 or early 1982 Hearn had no further contact with Bicknell. Bicknell eventually vacated the premises in August 1982.
On April 7, 1982, Bicknell commenced this action, seeking damages for negligent installation and repair of the roof and breach of contract (warranty). Bicknell moved for partial summary judgment on the issue of liability on both theories of negligence and breach of contract, and Hearn moved for partial summary judgment on the basis that not only was Bicknell's sole remedy that provided by the warranty but that the asserted negligence claim was barred by the statute of limitations. The trial judge granted Bicknell's motion as to liability on the breach of contract theory and denied Hearn's motion. Another trial judge, however, heard Hearn's subsequent motion for reconsideration, and then granted partial summary judgment for Hearn.
On October 28, 1983, the trial court entered a pre-trial order which, over Bicknell's objections, limited the issue for trial to the actual amount of damages Bicknell could recover for the cost of repair or replacement of the roof. The bench trial on that matter occurred on January 11, 1984, following which the trial court awarded Bicknell $2,000 for Hearn's breach of the warranty. On appeal, Bicknell contends that the trial court erred in limiting his remedy to that of the warranty.
Held:
1. The gravamen of Bicknell's appeal is that he should have been allowed to pursue a recovery for Hearn's alleged negligence in installing and repairing the roof to Bicknell's business premises, because the exculpatory provisions in the warranty violated public policy and were thus void and unenforceable. OCGA § 13-8-2(b) provides that "[a] covenant, promise, agreement, or understanding in or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair, or maintenance of a building ... purporting to indemnify or hold harmless the promisee against...
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...year statute of limitation to tortious damage to real property cases. Ga.Code Ann. § 3-1001. Bicknell v. Richard M. Hearn Roofing & Remodeling, Inc., 171 Ga.App. 128, 318 S.E. 2d 729 (1984). The cause of action accrues at the time of completion of construction, not at the time of the discov......
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