City of Birmingham v. Cochrane Roofing & Metal Co., Inc.

• Decision Date: 10 March 1989
• Citation: 547 So.2d 1159
• Parties: CITY OF BIRMINGHAM v. COCHRANE ROOFING & METAL COMPANY, INC., et al. 86-1187.
• Court: Alabama Supreme Court

Page 1159

547 So.2d 1159

CITY OF BIRMINGHAM v. COCHRANE ROOFING & METAL COMPANY, INC., et al.

86-1187.

Supreme Court of Alabama.

March 10, 1989.

Rehearing Denied June 30, 1989.

Charles Cleveland of Cleveland & Cleveland, Birmingham, for appellant.

W. Eugene Rutledge and Kay S. Kelly, Birmingham, for appellee Cochrane Roofing & Metal Co.

Thomas A. Carraway of Rives & Peterson, Birmingham, for appellee Warren, Knight & Davis.

James H. Starnes and E. Martin Bloom of Starnes & Atchison, Birmingham, for appellee Robins Corp.

J. Gusty Yearout of Yearout, Meyers & Traylor, Birmingham, for amicus curiae Associated General Contractors of America, Alabama Branch, Inc.

ON APPLICATION FOR REHEARING

ADAMS, Justice.

The original opinion in this case is withdrawn, and the following opinion is substituted therefor:

This is an appeal by the City of Birmingham (hereinafter "the City") from the summary judgments entered in favor of the architect, the general contractor, and the roofing subcontractor for the Birmingham Municipal Airport Terminal Building. The building was certified as substantially complete by the architect, and on April 27, 1973, the City formally accepted the building. On March 9, 1983, the City sued the architect, the general contractor, and the roofing subcontractor, as well as the supplier of the roofing subcontractor, as well as the supplier of the roofing materials, for breach of contract and negligence. The complaint alleged that these parties had failed to properly design and install the roof on the airport terminal building. The trial court granted a summary judgment in favor of each defendant, except the supplier of the roofing materials, on the grounds that the claims against them were barred by the applicable statute of limitations. The court certified these summary judgments as final judgments pursuant to Rule 54(b), A.R.Civ.P. We affirm.

The City had plans to expand the Birmingham airport. On November 6, 1968, the City entered into a contract with Warren, Knight & Davis, Architects, Inc. (hereinafter "WK & D"). The contract required WK & D to design an airport terminal; to see that the structure was built in accordance with the contract documents; to represent the City during the construction of the terminal; and to certify when the project was substantially completed.

Subsequently, the City entered into a contract with Robins Corporation (hereinafter "Robins"), a general contractor, for the construction of the airport terminal pursuant to the plans and specifications of WK & D. That contract included a bid bond dated March 9, 1971. It also included a performance bond and a labor and material bond, each dated May 8, 1971. Each of the bonds was under seal, although the contract itself was not. Robins also gave a one-year warranty guaranteeing all workmanship and materials.

On May 19, 1971, Robins subcontracted the roofing work on the airport terminal to Cochrane Roofing and Metal Company (hereinafter "Cochrane"), who agreed to construct the roof and give a two-year warranty.

GAF Corporation (hereinafter "GAF") supplied the roofing materials and routinely inspected the roof as it was being installed by Cochrane. GAF gave a ten-year warranty on the workmanship and the roofing materials.

Construction of the roof began in November 1971. The roof on the terminal building had an unusual design and used "state of the art" roofing materials. It was described in a GAF report as a "butterfly roof with crickets to interior drains." The roof of the rotunda was shaped like a funnel. In describing the material used to construct the roof, GAF wrote on its warranty: "Tarred Felt, Coal Tar Pitch and Gravel Surfaced Asbestos Felts, Asphalt and Gravel Surfaced." The unusual design, combined with the quality of the materials available on the United States market at that time, caused several problems during the installation of the roof. Specifically, asphalt roofing material is a petroleum-based product. As a result of the severe energy crisis occurring at that time, the asphalt on the market in the United States was of unusually poor quality. Nonetheless, the roof was completed and GAF made its final inspection of the roof on March 13, 1973.

There were three separate guarantees on the building and materials. Robins gave a one-year warranty guaranteeing workmanship and materials, dated March 30, 1973; Cochrane gave a two-year warranty for workmanship and materials, dated March 9, 1973; and GAF gave a ten-year warranty on the workmanship and the roofing materials, dated March 19, 1973.

On March 22 and 23, 1973, WK & D inspected the building and found several problems, none of which was related to the roof. The repairs were made and on April 26, 1973, WK & D certified that the building had been substantially completed. The City accepted the building the following day. The City began operating the building in November 1973, and has stated that the leaks in the roof occurred almost immediately.

After designing the building, the architect's duty to the City under the contract was to visit the site; to observe the work in progress; and to become generally familiar with the construction to see that the contractor's work was going to be in conformity with the construction documents at its completion. The contract between the City and WK & D did not include post-construction services. Nevertheless, after the City formally accepted the building as complete, WK & D assisted the City with its problems, at no cost to the City. In fact, from the record, it appears that the City was not charged by any of the defendants for their attempts to repair the roof.

Subsequent to the completion and acceptance of the building, WK & D was contacted regarding problems with the roof. After WK & D responded to that problem, the airport manager started calling WK & D every time there was a problem. Generally, when the roof began leaking, the airport manager would contact WK & D. Typically, WK & D would inspect the roof and then contact Robins, who, in turn, would contact Cochrane. Cochrane, who had warranted the roof for two years following its completion, initially made the necessary repairs. WK & D's actions were limited to inspecting the roof and contacting the proper parties to repair the roof.

GAF made its standard "two-year" inspection of the roof in October 1974. It noted several problems, and Cochrane, pursuant to its warranty, made the repairs. After these repairs were made, Cochrane did nothing else with regard to the roof until 1977. GAF was not contacted again until 1979.

From approximately 1977 to 1979, WK & D was contacted by the City many times. After the City called, WK & D would contact Robins and Cochrane. All three cooperated in the effort to repair the roof, at no cost to the City, although no one acknowledged responsibility for causing the problems. In March 1977, at the request of the City, WK & D inspected the roof and then wrote a letter outlining the problems. The letter, which was sent to Robins and the City's aviation director, suggested that Robins contact Cochrane and have Cochrane make the necessary repairs. Cochrane was contacted and made the repairs, even though its warranty had expired. The City contacted WK & D again in December 1977 and requested that it inspect the roof. WK & D inspected the roof and wrote Robins another letter outlining the problems. In January 1978, WK & D was called again, this time to find a particular leak. WK & D located the leak and Cochrane repaired it.

In late January, apparently frustrated with the circumstances, Cochrane wrote to Robins, stating:

This is to advise you that we feel that we have gone far beyond the limits of our liability as it concerns the roof of the terminal building. We have in effect been maintaining the roof since its completion in March of 1973. There is a manufacturers inspection and service guarantee in force on the roof of this building. The owner should advise the manufacturer whenever a roof problem is experienced. The manufacturer would have its representative investigate the complaint and then would take the appropriate action under the terms of the guarantee.

In February 1979, the City wrote WK & D a letter, stating in pertinent part: "I suggest you, Robins and the roofing contractor get together and have these problem areas corrected.... We have had leaks throughout the building; some of which have been corrected and some of which have not.... We are not satisfied with this roof at all. It has given us nothing but trouble from the time the building was occupied." As a result of that letter, a meeting was held by representatives of all of the parties in this lawsuit. The purpose of the meeting was to determine the cause of the leaks and to find some method of preventing new leaks in the future. Additional repairs were made following the meeting, but a few leaks continued.

Following that meeting, WK & D wrote to the City, stating:

As of this time we have failed to receive any criticism of the way in which our drawings were prepared or the specifications written. Therefore, it results that the problem lies within the scope of the contractor's work or that of his subcontractors. It is the feeling of this office that Robins Engineering did a masterful job at the Birmingham Airport. Mr. Sizemore, Mr. Forrester and the roofing contractor, Mr. Cochrane, all made extra efforts to perform their work in a first quality manner. This office has no criticism of the Robins Corporation; however, we hope you realize that the true problem lies with the materials on the market at the time the Terminal was constructed and with the problems of the mechanical installation of the roof by its nature.

Please be advised that this office will continue to work with you and assist you and your personnel in any problem at the Birmingham Airport to which we feel we can contribute any help whatsoever.

(Emphasis supplied.)

On January 23, 1980, all of ...