Dillon County School Dist. No. Two v. Lewis Sheet Metal Works, Inc.

• Decision Date: 26 March 1985
• Docket Number: No. 0508,0508
• Citation: Dillon County School Dist. No. Two v. Lewis Sheet Metal Works, Inc., 286 S.C. 207, 332 S.E.2d 555 (S.C. App. 1985)
• Parties: , 26 Ed. Law Rep. 855, Prod.Liab.Rep. (CCH) P 10,627 DILLON COUNTY SCHOOL DISTRICT NUMBER TWO, Appellant, v. LEWIS SHEET METAL WORKS, INC., Dargan Construction Co., Inc., Bonitz Insulation Company of South Carolina, Gene K. King d/b/a Johnson and King Engineers, William N. Geiger, Donald H. McElveen, Robert H. Kennedy d/b/a Geiger, McElveen & Kennedy, and/or G.M.K., Inc., the Celotex Corporation, and W.R. Grace & Company, Inc., Respondents. . Heard
• Court: South Carolina Court of Appeals

Page 555

332 S.E.2d 555

286 S.C. 207, 26 Ed. Law Rep. 855,

Prod.Liab.Rep. (CCH) P 10,627

DILLON COUNTY SCHOOL DISTRICT NUMBER TWO, Appellant, v. LEWIS SHEET METAL WORKS, INC., Dargan Construction Co Inc., Bonitz Insulation Company of South Carolina, Gene K King d/b/a Johnson and King Engineers, William N. Geiger Donald H. McElveen, Robert H. Kennedy d/b/a Geiger, McElveen & Kennedy, and/or G.M.K., Inc., the Celotex Corporation, and W.R. Grace & Company, Inc., Respondents.

No. 0508.

Court of Appeals of South Carolina.

Heard March 26, 1985.

Decided June 24, 1985.

Kermit S. King, Columbia, for appellant.

John Gregg McMaster, John U. Bell, III, Joel H. Smith, Peter L. Murphy and Celeste T. Jones, Columbia, Harry C. Wilson, Jr., Sumter, Lawrence B. Orr, Mark W. Buyck, Jr., Wm. Reynolds Williams and Finley B. Clarke, Florence, for respondents.

GOOLSBY, Judge:

This action by the appellant Dillon County School District Number Two seeks recovery for losses resulting from the defective design and construction of a roof to a school building. The circuit court granted summary judgment in favor of the respondents Lewis Sheet Metal Works, Inc. (Lewis), Dargan Construction Company, Inc. (Dargan), Bonitz Insulation Company of South Carolina (Bonitz), Gene King doing business as Johnson and King Engineers (King), William N. Geiger, Donald H. McElveen, Robert H. Kennedy doing business either as Geiger, McElveen & Kennedy, a partnership, or as G.M.K., Inc. (G.M.K.), The Celotex Corporation (Celotex), and W.R. Grace & Company (Grace). The issues on appeal relate to whether the statute of limitations bars the School District's action against each of the several respondents.

We affirm the grant of summary judgment to Bonitz, King, Celotex, and Grace. We reverse the grant of summary judgment to Lewis, Dargan, and G.M.K. and remand the case for trial.

The School District contracted with Dargan to construct a building to house Dillon County High School. Construction began in 1970 with the roof being completed the same year. The building was dedicated in September, 1970, and was completely finished by January, 1971. G.M.K. served as the project's architect, and Johnson and King served as its engineer. Bonitz installed the metal roof work and the roof's concrete deck and acoustical ceiling. Grace provided the roof's decking material, and Lewis installed the roofing membrane, metal flashing, and roof balance. Celotex manufactured roofing materials used in the construction of the roof.

The first report of a leak in the roof occurred in October, 1970. Other leaks were found in December, 1970. The problem with the roof became a persistent one.

As early as November 30, 1972, G.M.K. in a letter to the Chairman of the School District's Board of Trustees referred to the problem as a "continual problem" and suggested involving the county attorney if the situation were not soon remedied. Despite assurances from G.M.K. that "this problem will be resolved to your satisfaction" and despite meetings arranged by G.M.K. with Dargan and Lewis, matters did not improve.

More leaks were discovered in February, 1973, and in the months that followed. This discovery prompted G.M.K. and Lewis to agree with the School District that "the roof had leaked from the beginning and ... the warranty would not commence until ... corrections had been made and the roof had performed satisfactorily."

On October 31, 1973, the School District wrote G.M.K. expressing "grave concern over the continuous roof leaks at the high school" and threatening legal action if corrective measures were not immediately undertaken. G.M.K. notified Dargan of the threat and on November 9, 1973, Dargan in turn notified Lewis. Dargan also informed Lewis of "a jobsite meeting" scheduled by G.M.K. and reminded Lewis that the problem had been a "continuous" one that "must be resolved ... without any court action."

The same day Dargan wrote G.M.K. confirming G.M.K.'s employment of a roofing expert to investigate the leaks at the high school. Dargan also confirmed its understanding that G.M.K. had made the School District aware of the meeting and that the School Board would "await any action until after this meeting."

After meeting with Lewis and Dillon High School's principal on December 11, 1973, G.M.K.'s roofing expert on December 28, 1973, reported his findings to G.M.K. and made several recommendations to correct the problems with the roof. Two weeks later, G.M.K., Dargan, and Lewis met with the district superintendent at the high school to discuss the roof situation.

G.M.K. thereafter wrote the School District advising it that the roofing expert found "no deficiencies in construction or design and that the roof was in good condition." Nonetheless, it admitted that the roof had "an unusual number of small problems." G.M.K. also informed the School District that it had isolated all but a few of the leaks and that Lewis had "agreed to make the necessary repairs." G.M.K. closed its letter acknowledging that "these leaks have been a constant source of irritation and aggravation" to the School District and that G.M.K. "appreciate[d] the [School District's] patience and understanding."

Lewis repaired the roof during the spring of 1974. The roof, however, continued to leak damaging furnishings, books, and equipment and impairing school operations.

The School District retained counsel. On September 18, 1974, he wrote G.M.K. to report that the roof still leaked and sent copies of his letter to Dargan and Lewis. Counsel urged the parties to "unite and commence immediate action to alleviate these roof leaks."

G.M.K. replied to counsel's letter and conceded the situation involving the leaks "obviously has not been corrected." It advised counsel, however, that another roofing consultant had been retained "to help us solve the problems." G.M.K. sent a copy of its letter to Dargan.

Dargan subsequently wrote G.M.K. observing that the School District was "getting extremely uneasy about this roof" and inquired of G.M.K. whether "there is anything that we should be doing." G.M.K. responded that it had spoken with the School District's attorney and had asked the "school maintenance superintendent ... to help us in solving the problems." G.M.K. noted in its letter the attorney "was seemingly understanding."

Meanwhile, new leaks developed in the roof and were reported to G.M.K. The latter proposed a meeting at the school with the contractor. Dargan and Lewis met at the school with school district officials on January 24, 1975, to inspect the roof.

Afterward, G.M.K. outlined a plan to repair the leaks and Lewis undertook to make repairs to the roof apparently in accordance with the plan. Lewis, under pressure from Dargan, completed the repairs by the latter part of March, 1975.

A hard rain in May, 1975, however, revealed the presence of nine more leaks. Dargan, G.M.K., and Lewis again visited the school.

On June 4, 1975, G.M.K. advised the School District of its meeting with Dargan and Lewis and of their plan to correct the new leaks by installing additional flashing and replacing a portion of the roof membrane. This work was completed between August 12 and November 11, 1975.

Upon the completion of the work, G.M.K. wrote the School District suggesting it "keep a close look-out to determine if any further leaks develop." G.M.K. promised to clean carpets and walls "[a]s soon as we can determine if the leaks have been corrected."

Notwithstanding the repair, problems surfaced.

The School District's attorney wrote G.M.K. on December 30, 1975, and mailed copies of his letter to "all concerned." He advised G.M.K. of the reoccurrence of old leaks and the appearance of new ones and indicated the School District had retained its own roofing expert.

His letter also summarized a report made by the expert to the School District and warned G.M.K. that if the "[a]rchitect and the contractors concerned" failed "within a reasonable period of time" to comply with the School District's recommendation to submit plans and specifications to the School District for the correction of the roof problems identified by its expert the School District would have "no other alternative than to enter suit for damages against all parties concerned."

G.M.K. immediately scheduled a meeting with the School District's roofing expert. They, together with the district superintendent, and representatives from Dargan, Lewis, and Celotex, conducted a conference at the school on January 29, 1976, for the purpose of discussing the roof problems.

Lewis's additional repair work performed in August, 1976, was inspected by G.M.K. The School District, however, advised G.M.K. of more leaks in September and November, 1976, and again in October, 1977.

Another effort to repair the roof was made in August, 1978. Lewis again performed the work and G.M.K. supervised it. Celotex furnished the materials.

The effort, however, failed. In a letter to the School District dated November 8, 1979, G.M.K. recommended additional repairs be attempted and a law suit be instituted against the contractor.

A roofing expert retained by the School District thereafter investigated the roof and reported his findings in March, 1980. He determined that a major portion of the leakage occurred in areas previously repaired and concluded that the leakage resulted "from the same causes that existed in 1975" when he last inspected the roof.

The roofing expert prepared another report in August, 1980. The report noted that the roof exhibited deficiencies in workmanship and in design. The report also disclosed that the venting of the roof was possibly inadequate and that the roofing membrane had completely deteriorated. G.M.K. sent copies of this report to Dargan, Lewis, Celotex, King, and Bonitz on September 9, 1980.

Two months later, G.M.K. made a settlement offer to the School District on behalf of itself, "the general contractor, roofing contractor,...