Boisse v. Miller

Decision Date08 August 2013
Docket NumberC.A. WC 2003-0281
PartiesPAUL R. BOISSE AND MICHELE C. BOISSE v. JOSEPH R. MILLER, JR. d/b/a JOSEPH MILLER CONSTRUCTION; LYNNE N. MILLER; PLEASANT HILLS DEVELOPMENT, LTD.; MARK L. HAWKINS; THOMAS A. CHAMPLIN; and ASSURANCE COMPANY OF AMERICA v. ZURICH AMERICA INSURANCE COMPANY
CourtSuperior Court of Rhode Island

PAUL R. BOISSE AND MICHELE C. BOISSE
v.

JOSEPH R. MILLER, JR. d/b/a JOSEPH MILLER CONSTRUCTION; LYNNE N. MILLER; PLEASANT HILLS DEVELOPMENT, LTD.; MARK L. HAWKINS; THOMAS A. CHAMPLIN; and ASSURANCE COMPANY OF AMERICA
v.

ZURICH AMERICA INSURANCE COMPANY

C.A. No. WC 2003-0281

Superior Court of Rhode Island

August 8, 2013


Washington County Superior Court

Turner C. Scott, Esq. For Plaintiff: Peter J. Comerford, Esq.; William R. Landry, Esq.

For Defendant: Patrick L. McKinney, Esq.; Daniel F. Sullivan, Esq.; Dana M. Horton, Esq.

DECISION

SAVAGE, J.

This matter, which involves the unfortunate tale of a dream home misplaced, is before the Court for decision following a non-jury trial as to liability. In their Revised Second Amended Complaint, Plaintiffs Paul R. Boisse and Michele C. Boisse seek damages as against all Defendants arising from the improper siting of their home in South Kingstown, Rhode Island. Plaintiffs first discovered this problem upon receiving notice from National Grid USA Service Company that their home encroached on an easement recorded in favor of Narragansett Electric Company.

Plaintiffs assert claims of negligence against: Defendant Joseph R. Miller, Jr. d/b/a Joseph Miller Construction, the bankrupt developer of the Property; Defendant Lynne N. Miller, his ex-wife, who owned the Property, executed the deed transferring the Property to Plaintiffs, and granted Mr. Miller a limited power of attorney with respect to the sale of the Property to Plaintiffs; Defendant Pleasant Hills Development, Ltd., the developer of the subdivision who sold the Property to Ms. Miller; Defendant Mark L. Hawkins, sole director and shareholder of Pleasant Hills Development; and Defendant Thomas A. Champlin, the now-deceased surveyor who performed survey work on the Property. Plaintiffs also assert claims of breach of contract and breach of warranty deed covenants against Ms. Miller, claims of fraud, misrepresentation and deceptive trade practices against Mr. Miller, and claims of wrongful concealment against both Mr. and Ms. Miller. Finally, given Mr. Miller's bankruptcy, Plaintiffs seek to hold Defendant Assurance Company of America, Mr. Miller's insurer, liable for his negligence in a direct action under R.I. Gen. Laws § 27-7-2.4.

Defendant Champlin asserts a Cross-Claim against Mr. and Ms. Miller for negligence. In his Third-Party Complaint against Zurich America Insurance Company, Mr. Miller seeks to hold his insurer liable for the alleged breach of its duty to defend and indemnify him.[1]

For the reasons set forth in this Decision, this Court grants judgment in favor of Plaintiffs on their claim of breach of warranty deed covenants against Ms. Miller and their claims of fraud, misrepresentation, wrongful concealment, and deceptive trade practices against Mr. Miller. It grants judgment for the Defendants as to all other claims of the Plaintiffs.[2]

I

FACTS AND TRAVEL

The chronology pertinent to this case begins sometime in early October 1995. On October 13, 1995, Defendant Pleasant Hills Development purchased the Pleasant Hills subdivision in South Kingstown, Rhode Island with the intention of developing a number of residential lots. (Joint Ex. 6, Warranty Deed.) At trial, it was undisputed that the original Pleasant Hills subdivision plan showed the proposed location of a house, driveway, and well within the contours of Lot 15—the Property ultimately purchased by Plaintiffs that is at issue in this litigation. (Joseph Miller Trial Tr. 39:2-15, Dec. 5, 2011.) On June 2, 1997, Pleasant Hills Development obtained a permit from the Rhode Island Department of Environmental Management (DEM) for an individual sewage disposal system (ISDS) on Lot 15. (J. Miller Trial Tr. 41:16 - 43:23, Dec. 5, 2011; Joint Ex. 9, ISDS Application.) The ISDS permit application included an engineered plan prepared by Defendant Thomas A. Champlin, who is now deceased, showing the location of the proposed house, ISDS system and well within the boundaries of Lot 15. (Joint Ex. 9.) Champlin was deposed in 2006 during discovery and testified that he worked for Pleasant Hills and set the boundary points for the Pleasant Hills subdivision, including the points for Lot 15, in June and August of 1997. (Joint Ex. 62, Champlin Dep. 6:8-8:16, Aug. 22, 2006.) Champlin testified that he put four-foot high stakes at the corners of Lot 15. (Joint Ex. 62, Champlin Dep. 19:10-15, Aug. 22, 2006.) Champlin further stated that he also placed semipermanent markers in the boundary corners which he described as being spikes "with a red plastic cap at the top or a nail head at the top, with a red plastic cap saying 'survey marker.'" (Joint Ex. 62, Champlin Dep. 19:16 - 20:4, Aug. 22, 2006.)

Following this initial approval from DEM, on January 22, 1998, Defendant Lynne N. Miller purchased Lot 15, located at 44 Erica Court in South Kingstown, Rhode Island, from Pleasant Hills Development through a limited power of attorney which Ms. Miller executed in favor of her ex-husband, Defendant Joseph R. Miller, Jr. (Joint Ex. 19, Warranty Deed; Joint Ex. 20, Limited Power of Attorney.) According to her testimony, Ms. Miller executed the power of attorney, dated January 21, 1998, to allow Mr. Miller to leverage her good credit to build a residence on the Property for sale to a third party. (L. Miller Trial Tr. 136:13 – 23, 153:24 – 154:10, Dec. 7, 2011.) Ms. Miller stated that her impetus for granting Mr. Miller a limited power of attorney was to provide him an opportunity to start a business that would make him a "better provider." (L. Miller Trial Tr. 155:14 – 156:1, Dec. 7, 2011.) Specifically, she envisioned the business producing income for Mr. Miller that would enable him to provide child support payments for the couple's daughter. (L. Miller Trial Tr. 155:14 – 156:1, Dec. 7, 2011.) Ms. Miller further affirmed that aside from providing Mr. Miller with a limited power of attorney for the purchase and sale of the lots in the Pleasant Hills subdivision, she had no other involvement with the construction of the houses built in the subdivision. (L. Miller Trial Tr. 154:7-23, Dec. 7, 2011.)

Mr. Miller retained Champlin as the surveyor for the lots that his ex-wife purchased in the Pleasant Hills development in order to obtain the necessary approvals from DEM for installation of the ISDS. (Ex. 62, Champlin Dep. 17:8-11, Aug. 22, 2006.) Champlin testified that he told Mr. Miller where the corner stakes were that marked the boundaries of the Property and that the corners were marked with four-foot high stakes. (Ex. 62, Champlin Dep. 19:11-15, Aug. 22, 2006.) At trial, Mr. Miller confirmed that he was familiar with surveyor stakes in the field, testifying that at the time he purchased Lot 15, he found all of the stakes at the corners, describing the stakes as being about three feet high with the top painted orange or with an orange flag. (J. Miller Trial Tr. 8:1-20, Dec. 5, 2011.)

After securing a building permit from the Town of South Kingstown, Mr. Miller hired an excavation contractor, Michael Netro, to dig the foundation for a home on the Property. (J. Miller Trial Tr. 9:23-25, 51, 66, Dec. 5, 2011.) Mr. Miller also hired a well contractor to place a well on the Property in late June or early July of 1998. (J. Miller Trial Tr. 11:14-17, Dec. 5, 2011). While the engineered plan prepared by Champlin as part of the ISDS application showed the proposed home and well within the contours of Lot 15, Mr. Miller was responsible for siting the home on the Property and informing the contractors where to dig the foundation and well. (Joint Ex. 9; J. Miller Trial Tr. 9:14-17, 11:14-17, Dec. 5, 2011.) Additionally, Mr. Miller testified that the house and well were placed where he had directed the contractors. (J. Miller Trial Tr. 66:16 – 67:2, Dec. 5, 2011.)

At trial, Mr. Miller further testified that the distance from Erica Court to the house was meant to be fifty feet long. (Def.'s Ex. A, Soil Erosion Plan; J. Miller Trial Tr. 69:9-18, Dec. 5, 2011.) Mr. Miller then confirmed that according to the survey plan obtained by the Plaintiffs, the actual distance from Erica Court to the house appeared to be approximately 112 feet long. (Joint Ex. 53, Survey Plan; J. Miller Trial Tr. 71:2-13, Dec. 5, 2011.) Mr. Miller testified that along with siting the house and the ISDS, he also paid to have someone install and pave the driveway, the excavation of which was completed by July 24, 1998. (J. Miller Trial Tr. 72:1-4, Dec. 5, 2011; Joint Ex. 27, Building Permit.) Mr. Miller admitted that in building the driveway, he was off by a distance of approximately fifty feet. (J. Miller Trial Tr. 71:15-18; 72:14-18, Dec. 5, 2011.) Mr. Miller testified that he does not remember how much he was charged for having the driveway built, but he did not dispute the suggestion that a driveway is usually paid for by the square foot. (J. Miller Trial Tr. 72:3-24, Dec. 5, 2011.) Upon being questioned as to whether he would notice a difference of fifty feet in the field, Mr. Miller tellingly responded, "You would think you would, yeah." (J. Miller Trial Tr. 73:8-9, Dec. 5, 2011.)

Seeking a larger home and a better school system for their two daughters, Plaintiffs Paul and Michele Boisse discovered the Pleasant Hills subdivision in South Kingstown toward the end of July in 1998. (Paul Boisse Trial Tr. 101:1 - 103:24, Dec. 5, 2011.) After negotiations with Mr. Miller and repeated visits to the subdivision, the Boisses decided to purchase Lot 15 and the home being built by Mr. Miller on the Property. (P. Boisse Trial Tr. 102:5-10, Dec. 5, 2011.) Mr. Boisse testified that according to his recollection, the Property had been cleared and a foundation laid at this time. (P. Boisse Trial Tr. 103:22-25, Dec. 5 2011.) Plaintiffs and Mr. Miller executed a Purchase and Sale Agreement for "Builder's Lot 15- on September 10, 1998. (Joint Ex. 28, 9/10/98 Purchase and...

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