Big League Entm't, Inc. v. Brox Indus., Inc.

• Citation: 821 A.2d 1054,149 N.H. 480
• Decision Date: 05 May 2003
• Docket Number: No. 2002–198.,2002–198.
• Parties: BIG LEAGUE ENTERTAINMENT, INC., d/b/a Chunky's Cinema Pub, v. BROX INDUSTRIES, INC. & a.
• Court: Supreme Court of New Hampshire

149 N.H. 480

821 A.2d 1054

BIG LEAGUE ENTERTAINMENT, INC., d/b/a Chunky's Cinema Pub,

v.BROX INDUSTRIES, INC. & a.

No. 2002–198.

Supreme Court of New Hampshire.

Argued Feb. 6, 2003.

Opinion Issued May 5, 2003.

Sulloway & Hollis, P.L.L.C., of Concord (Martin L. Gross & a. on the brief, and John Garvey orally), for the plaintiff.

Ouellette, Hallisey, Tanguay and Masse, P.A., of Dover (William L. Tanguay on the brief and orally), for defendant Brox Industries, Inc.

Mark F. Sullivan, of Exeter, by brief and orally, for defendant Bill Hall, Inc.

Donovan Hatem LLP, of Boston, Massachusetts (Jeffrey L. Alitz on the brief), and Hatem & Donovan, PC, of Salem (Michael D. Hatem on the brief), for the American Institute of Architects (New Hampshire Chapter) & a., as amici curiae.

BRODERICK, J.

The plaintiff, Big League Entertainment, Inc., d/b/a Chunky's Cinema Pub, appeals from an order of the Superior Court (Groff , J.) granting summary judgment in favor of the defendants, Brox Industries, Inc. (Brox) and Bill Hall, Inc. (Hall). We reverse and remand.

The following facts are undisputed. The plaintiff hired Hall to install a septic system and Brox to construct an adjacent parking lot at Chunky's Cinema Pub in Pelham. The defendants completed construction in June 1997. On February 15, 1998, the plaintiff began experiencing problems with the septic system, and, on February 27, a site inspection took place. Present at the inspection were, among others, Bill Hall of Bill Hall, Inc., Jim Nagel, owner of Chunky's Cinema Pub, and Steve Haight of Edward Herbert Associates, the system's designer. Haight subsequently drafted a memorandum (Haight memorandum), dated March 2, in which he stated that he did not know the exact nature of the problem, but that it "appear[ed] that the leach bed [had] failed." He recommended that the system be replaced. Construction of a new system began in late March. By letter dated May 7, 1998, the plaintiff's insurance carrier denied coverage for the septic system failure, concluding that the cause was "a defect in either the design or construction of the system."

In April 2001, the plaintiff initiated suit against the defendants, alleging one count of negligence against each. The defendants moved for summary judgment on the grounds that the plaintiff's action was barred by the three-year statute of limitations. See RSA 508:4, I (1997). The plaintiff countered that its claim was subject to an eight-year statute of limitations, see RSA 508:4–b, I (1997), or, alternatively, that the discovery rule of RSA 508:4, I, applied and, accordingly, that its claims were timely filed under that statute's three-year limitations period.

The trial court ruled that RSA 508:4–b is a statute of repose, rather than a statute of limitation. It further ruled that the plaintiff's claim was subject to the three-year limitation period set forth in RSA 508:4, I, and that the discovery rule applied. It concluded that the plaintiff's cause of action arose on February 16, 1998, the date on which the plaintiff began incurring expenses related to the defendants' alleged negligence. The court also concluded, however, that the plaintiff should reasonably have discovered the causal relationship between the defendants' alleged negligence and the injury in early March as a result of the Haight memorandum, which, according to the court, the plaintiff received on or about March 2, 1998. Because the suit was not commenced within three years of this date, the court granted the defendants' motions for summary judgment. This appeal followed.

On appeal, the plaintiff argues that the trial court erroneously: (1) construed RSA 508:4–b as a statute of repose rather than as a statute of limitation; and (2) granted summary judgment despite the existence of a genuine factual dispute.

In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. See Del Norte, Inc. v. Provencher, 142 N.H. 535, 537, 703 A.2d 890 (1997). If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment. Id . We review the trial court's application of the law to the facts de novo. See id .

I

The plaintiff first argues that RSA 508:4–b operates as both a statute of limitation and a statute of repose and that, for construction deficiency actions such as this, the legislature intended RSA 508:4–b to supplant the general statute of limitation found in RSA 508:4, I. Accordingly, it contends that it had eight years after construction was substantially completed to bring suit against the defendants.

RSA 508:4–b, I, provides:

Except as otherwise provided in this section, all actions to recover damages for injury to property, injury to the person, wrongful death or economic loss arising out of any deficiency in the creation of an improvement to real property, including without limitation the design, labor, materials, engineering, planning, surveying, construction, observation, supervision or inspection of that improvement, shall be brought within 8 years from the date of substantial completion of the improvement, and not thereafter.

In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Matarese v. N.H. Mun. Assoc. Prop.—Liab. Ins. Trust, 147 N.H. 396, 401, 791 A.2d 175 (2002). We interpret statutes in the context of the overall statutory scheme and not in isolation. Appeal of Brady , 145 N.H. 308, 310, 761 A.2d 1072 (2000). We look first to the statutory language itself, and where possible, we ascribe the plain and ordinary meanings to words used. Matarese , 147 N.H. at 401, 791 A.2d 175. Where the statutory language is ambiguous or where more than one reasonable interpretation exists, we review legislative history to aid in our analysis. Appeal of Inter–Lakes Sch. Bd ., 147 N.H. 28, 32, 780 A.2d 1275 (2001).

"Statutes of limitation and repose may be distinguished both by their method of operation and their underlying purpose." See v. Hartley , 257 Kan. 813, 896 P.2d 1049, 1052 (1995) (quotation omitted). Statutes of limitation generally begin to run at the time of injury or discovery of the injury. Id . They serve to place a limit on the time in which a plaintiff may bring suit after a cause of action accrues. 51 Am.Jur.2d Limitation of Actions § 9 (2000). "The main purpose of such statutes is the prevention of stale claims, serving as instruments of public policy and of court management, which do not confer upon defendants any right to be free from liability, although this may be their effect." See v. Hartley, 896 P.2d at 1053 (quotations and brackets omitted).

By contrast, statutes of repose "create time limitations which are not measured from the date of injury," id . at 1052 (quotation omitted), but rather "usually run[ ] from an act of a defendant," id . at 1053 (quotation omitted). They extinguish a cause of action after a fixed period of time regardless of when the action accrues, potentially barring a plaintiff's suit before there has been an injury or before the action has arisen. 51 Am.Jur.2d Limitation of Actions § 31. They thereby establish an absolute outer boundary in time within which a claim may be asserted. Id . "Statutes of repose ... operate as a grant of immunity serving primarily to relieve potential defendants from anxiety over liability for acts committed long ago." See v. Hartley, 896 P.2d at 1053 (quotations omitted). "An action timely filed pursuant to a statute of repose may nevertheless stand barred by an applicable statute of limitations." Cinco Enterprises, Inc. v. Botts, 931 P.2d 81, 83 (Okla.Ct.App.1996).

Although we have inconsistently labeled RSA 508:4–b in prior cases, compare Deschamps v. Camp Dresser & McKee, Inc., 113 N.H. 344, 346, 306 A.2d 771 (1973) (categorizing previous version of RSA 508:4–b as statute of limitation), and Henderson Clay Prod's, Inc. v. Edgar Wood & Assoc's, Inc., 122 N.H. 800, 801, 451 A.2d 174 (1982) (same), with Antoniou v. Kenick, 124 N.H. 606, 608, 474 A.2d 566 (1984) (categorizing previous version of RSA 508:4–b as statute of repose), we have not directly addressed the issue of whether it is a statute of limitation or a statute of repose. On its face, RSA 508:4–b functions as a statute of repose because it begins to run from "the date of substantial completion of the improvement," wholly independent of any accrual of the cause of action. Furthermore, the legislative findings and purpose clearly demonstrate that the purpose of the statute is to relieve potential defendants from infinite liability perpetuated by the discovery rule. As stated in Laws 1990, 164:1:

The general court finds that, under current law, builders, designers, architects and others in the building trade are subject to an almost infinite period of

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