Business Men's Assur. Co. of America v. Graham, WD

• Decision Date: 08 November 1994
• Docket Number: No. WD,WD
• Citation: 891 S.W.2d 438
• Parties: BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA, Respondent-Appellant, v. Bruce GRAHAM, et al., Appellants-Respondents. 45876.
• Court: Missouri Court of Appeals

Page 438

891 S.W.2d 438

BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA, Respondent-Appellant, v. Bruce GRAHAM, et al., Appellants-Respondents.

No. WD 45876.

Missouri Court of Appeals,

Western District.

Nov. 8, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 27, 1994.

Application to Transfer Denied

Feb. 21, 1995.

Lawrence M. Berkowitz, Kansas City, for appellant-respondent.

Roy C. Bash, Kansas City, for respondent-appellant.

Before BRECKENRIDGE, P.J., KENNEDY, J., and SHANGLER, Senior Judge.

BRECKENRIDGE, Presiding Judge.

Bruce Graham, as the representative of the current partners of Skidmore, Owings & Merrill, appeals from the judgment entered on the jury verdict against Skidmore, and in favor of Business Men's Assurance Company (BMA), in the amount of $5,287,991.87. Skidmore raises seven points on appeal arguing that the trial court erred in: A) denying Skidmore's motion for a directed verdict on its statute of limitations defense; B) refusing to submit Skidmore's statute of limitations defense to the jury as an affirmative defense; C) refusing to give Skidmore's comparative fault instruction; D) submitting the issue of damages to the jury under a cost-of-repair measure of damages and refusing Skidmore's instruction on the issue of damages; E) submitting Instructions 8, 11 and 14 to the jury on the issue of prejudgment interest; F) submitting BMA's negligence and negligence per se claims to the jury because they were based on purely economic loss; and G) submitting BMA's negligence per se claim to the jury because BMA failed to state a claim for negligence per se. ¹ BMA cross-appeals from the trial court's refusal to submit its punitive damages claim to the jury.

After granting BMA's motion for a rehearing, this court finds that the trial court erred in failing to submit the statute of limitations issue to the jury, in awarding BMA damages for loss of use of money and in submitting BMA's negligence per se claim to the jury as a cause of action. This court reverses the denial of Skidmore's affirmative defense of statute of limitations and the award of damages for BMA's loss of use of money. We affirm the remaining provisions of the judgment and order that they be held in abeyance, pending remand for a new trial on the issue of statute of limitations only.

In 1960, BMA contracted with Skidmore, an architectural firm, to design the BMA Tower which was to be built in Kansas City, Missouri. Skidmore specifically agreed to furnish professional services to BMA in connection with design and construction of the BMA Tower, including preparation of preliminary design documents and final construction documents, consisting of drawings, outlining specifications, preliminary cost estimates, and models or renderings, working drawings and specifications for architectural, structural, civil, mechanical and electrical engineering work. Skidmore agreed to provide professional services to assist in the taking of bids, selection of contractors and the development of construction contracts, checking of contractors and manufacturer's shop drawings, approval of material samples, issuance of certificates of payment, and full-time supervision of construction by an architectural superintendent on site who was to be responsible for "the coordination, performance and completion of all architectural, structural, civil, mechanical and electrical engineering work in accordance with approved drawings and specifications." Further, Skidmore agreed to use its best efforts to protect BMA against defects and deficiencies in the work of contractors but did not guarantee performance by contractors of their contracts.

Construction of the building began in 1961 and was completed in 1963. The exterior of the building consisted of over four thousand panels of one-and-one-fourth inch thick white marble, described as marble cladding. The building has vertical columns with horizontal cross pieces, called spandrels, connecting the columns at each floor. The marble panels covered all four sides of the building's vertical columns and, at each floor level, marble was installed on the outside face of the horizontal spandrels. The individual pieces of marble were attached to the frame of the building with metal anchors. The windows are set approximately eight feet back from the edge of the building and this overlap is called the gallery.

In May of 1985, three of the marble panels fell from their installed positions. Two of the three panels fell from the spandrels. The third panel fell from the penthouse section of the building. ² BMA notified Skidmore in June of 1985 that the panels had fallen. BMA also hired Black & Veatch to perform tests on the marble to determine what caused the panels to fall. Black & Veatch discovered that there were significant design problems with regard to the marble and the anchoring system. The thin marble cladding system failed to meet the minimum requirements of the Kansas City Building Code. Black & Veatch also found that the properties of the marble at the original installation date failed to meet industry standards for the early 1960's and, with the passage of time, the marble had warped, cracked and lost strength.

In addition, Black & Veatch identified workmanship anomalies in that the anchor system for the marble cladding was not constructed in accordance with specifications. At a minimum, twenty-five percent of the anchors specified were either missing or were of an incorrect type. All of the anchors installed were one-sixteenth of an inch thick rather than the specified one-eighth of an inch. A significant number of the anchors were not embedded in the dovetail slot to the required depth, were not even inserted into the dovetail slot or there was was no dovetail slot. Some anchors were not inserted into the slot, but were attached by molding cement or a Ramset nail. In the areas where a wire anchor was specified, in many instances the wire was missing, the wire was not anchored into the dovetail slot or there was no dovetail slot. The bearing of the marble panels on the shelf angles did not meet the specification of three-fourths of an inch. The bearing on quite a few panels was less than one-half inch, some almost zero. Where the marble panels formed a corner around the columns, the specifications called for a stainless steel cramp anchor. Copper was used in every instance instead of stainless steel.

Black & Veatch prepared a report which indicated that it could not guarantee the building's safety. After considering two possible methods of repair, Black & Veatch determined that neither method would guarantee the building's safety and recommended that the panels be removed and replaced. BMA decided to remove the marble panels on the building and replace them with a synthetic crystalline material called neoparium. The cost of the replacement was approximately four million dollars. BMA filed suit against Skidmore on August 12, 1986 for negligence and breach of contract. ³

Skidmore moved for summary judgment prior to trial on the basis that §§ 516.100 and 516.120, RSMo 1986, ⁴ required BMA to file its action within five years of the time when the damage resulting from Skidmore's breach of contract or duty was sustained or capable of ascertainment. Skidmore maintained that BMA's damages were sustained and capable of ascertainment long before August 12, 1981 and, as a result, BMA's claims were barred. BMA opposed summary judgment and claimed that it would present evidence at trial to dispute Skidmore's contentions. The trial court reserved ruling on Skidmore's summary judgment motion until trial.

There was evidence at trial that the incidents in May of 1985, although the first time entire panels had fallen from the building, were not the first problems BMA had experienced with the marble panels. A cracked panel, which did not fall from its installed position, was replaced in the late 1960's. As early as the winter of 1966-67, BMA experienced problems with chipping of the marble panels in specific areas of the building. The design of the building included the placement of an aluminum cap over the gap between the gallery edge and the top edge of the horizontal spandrel panels. The cap met the bottom corner of the vertical column panels where the column intersected with the gallery on each floor. The aluminum cap expanded when exposed to heat causing the bottom corner of some column panels to chip and fall to the gallery. After consulting Skidmore, expansion joints were cut in the aluminum caps to remedy this problem. The evidence also showed that, in 1975, the joints between the marble panels and the frame to which they were attached were recaulked.

At trial Skidmore and BMA each offered the testimony of a witness who had responsibility for some aspect of the maintenance of the BMA Tower. Skidmore presented deposition testimony from Robert Hicklin, the maintenance carpenter responsible for maintaining the exterior of the building from 1966 until his retirement in 1983. Hicklin did not work directly for BMA. He was employed first by IT & T and then by Penn Valley Management, both entities owned by BMA.

While he was the maintenance carpenter, Hicklin reported exclusively to Mark Crew, except for the last year of his employment when Crew was retired. Crew was a witness for BMA. Crew served as secretary to the building committee during the time the BMA Tower was being constructed. In that position he was BMA's on-site representative during the construction. After the completion of construction, Crew became building manager. He served in that position until he was promoted to director of BMA Tower services, the position he held at his retirement.

Hicklin testified that every winter during his employment at the BMA Tower, pieces of marble from the corners of the column panels would break off and fall onto the gallery decks. Hicklin testified that some of these pieces were reattached by ...