Fine v. Huygens, Dimella, Shaffer & Asso.

• Decision Date: 20 February 2003
• Docket Number: No. 99-P-2007.,99-P-2007.
• Citation: 783 N.E.2d 842,57 Mass. App. Ct. 397
• Parties: Albert FINE & others<SMALL><SUP>1</SUP></SMALL> v. HUYGENS, DiMELLA, SHAFFER & ASSOCIATES & others.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

783 N.E.2d 842

57 Mass. App. Ct. 397

Albert FINE & others¹ v. HUYGENS, DiMELLA, SHAFFER & ASSOCIATES & others.²

No. 99-P-2007.

Appeals Court of Massachusetts, Suffolk.

Argued November 26, 2002.

Decided February 20, 2003.

COPYRIGHT MATERIAL OMITTED

John A. Donovan, III, Boston, for Architectural Cladding Systems.

Thomas C. Federico for Coastal G.F.R.C., Inc.

James E. Harvey, Jr., Boston, for Howard Industries, Inc.

Seth H. Emmer, Braintree, for the plaintiffs, submitted a brief.

Present: PERRETTA, DUFFLY, & GREEN, JJ.

DUFFLY, J.

After our decision in this matter, see 55 Mass.App.Ct. 1114, 774 N.E.2d 685 (2002), issued pursuant to Appeals Court Rule 1:28, as amended, 46 Mass.App.Ct. 1001 (1998), we granted the petitions for rehearing submitted by three of the defendants, and heard argument thereon on November 26, 2002. Our earlier decision, reversing in part the dismissal of the plaintiffs' claims as not timely filed, was in connection with the plaintiffs' appeal from entry of summary judgment in favor of nine of twelve defendants who played varying roles in the planning and construction of a condominium development, the St. George Seaside Condominiums and Beach Club Association (St. George). In their complaint, the plaintiffs alleged (among other things not relevant at this stage of the appeal) that defects and deficiencies in the design of exterior wall panels and window systems of the St. George resulted in leaks to their condominium units and common areas.

The motion judge dismissed the plaintiffs' claims on the basis that the December 31, 1993, complaint was filed more than three years after June, 1988, when the plaintiffs first observed water leaks in their units. In our earlier decision, we determined that, based on the summary judgment record, the plaintiffs were not put on notice as to the likely cause of their injury until May, 1990, when surface irregularities in the window seals and the glass fiber reinforced concrete (GFRC) panels became apparent.³ We affirmed the dismissal of negligence claims against all defendants, including Coastal G.F.R.C., Inc. (Coastal), Architectural Cladding Systems (ACS),⁴ and Howard Industries, Inc. (Howard), because those claims were barred by the statute of limitations under either the June, 1988, or the May, 1990, date. However, we reversed the dismissal of counts alleging breach of implied warranty and unfair trade practices under G.L. c. 93A, against ACS, Coastal, and Howard (the only defendants against whom such claims were made), and did not consider whether the claims against Coastal and Howard were also barred by operation of G.L. c. 260, § 2B, the statute of repose applicable to improvements to real property.

The petitions for rehearing. The defendants Coastal, Howard, and ACS petitioned for rehearing as to our disposition on counts IV, V, VII, VIII, X, XI, XXV, and XXVI of the complaint.⁵ Coastal and Howard ask that we now address whether the statute of repose bars suit against them on the breach of implied warranty and c. 93A counts. ACS and Howard argue that, even if not barred by operation of the statute of repose, the breach of implied warranty claims must be dismissed because they depend on the same facts and elements as the negligence claims, and are therefore subject to a three-year statute of limitations. ACS and Howard further argue that, because the breach of warranty claims must be dismissed as untimely, the c. 93A claims, which are premised on these claims, also fail.

Discussion. 1. Breach of implied warranty. We agree that the breach of implied warranty claims must be dismissed as untimely.

The plaintiffs' counts alleging breach of warranty state two theories of liability: that the defendants are in breach of (1) the implied warranty of merchantability; and (2) the implied warranty of fitness for a particular purpose. "The appropriate statute of limitations to apply to a breach of warranty claim under art. 2 of the Uniform Commercial Code is found by determining the nature of that particular breach of warranty claim." Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 110, 533 N.E.2d 1350 (1989).⁶

With respect to the breach of an implied warranty of merchantability, "breach of this implied warranty provides a cause of action in tort where the harm is a physical injury to person or property rather than an `economic' loss of value in the product itself (for which contractual remedies must still be pursued)" (emphasis added). Commonwealth v. Johnson Insulation, 425 Mass. 650, 653, 682 N.E.2d 1323 (1997) (upholding liability based on implied warranty of merchantability for costs of remediation activities in connection with removal of asbestos-containing materials installed in plaintiff's buildings. Cf. Berish v. Bornstein, 437 Mass. 252, 268, 770 N.E.2d 961 (2002) (negligence claim improperly dismissed under "economic loss doctrine" where claim gave rise to reasonable inference that "enumerated `defects and deficiencies' caused property damage beyond the defects in the condominium units themselves"). Consistent with Commonwealth v. Johnson Insulation, supra, we conclude that the plaintiffs' summary judgment materials state a claim for liability that could be grounded in tort. See Aldrich v. ADD Inc., 437 Mass. 213, 222, 770 N.E.2d 447 (2002). Governing provisions of the UCC impose a three-year period of limitation. G.L. c. 106, § 2-318. Because the claims were filed in December, 1993, more than three years after the May, 1990 accrual date, they were properly dismissed.⁷

Our conclusion does not, however, require that we also dismiss the G.L. c. 93A claims as to each defendant. We first consider whether, as to Coastal and Howard, the c. 93A claims are barred by application of the statute of repose.

2. Statute of repose. The statute of repose, see G.L. c. 260, § 2B, as amended by St.1984, c. 484, § 53, bars claims against design professionals made more than six years following the "substantial completion of [an] improvement [to real property] and the taking of possession for occupancy by the owner." Nor can such protected actors be added to a complaint after the six-year period by way of "relation back" to the date of the original complaint.⁸ Coastal and Howard were added as party defendants in the plaintiffs' third amended complaint, filed in November, 1995, some seven years after substantial completion of the project in September, 1988. Thus, § 2B would bar claims against them to the extent the defendants were acting as design professionals.⁹

The repose statute applies to those who perform acts of "individual expertise' akin to those commonly thought to be performed by architects and contractors & mdash; that is to say, ... parties who render particularized services for the design and construction of particular improvements to particular pieces of real property." Dighton v. Federal Pac. Elec. Co., 399 Mass. 687, 696, 506 N.E.2d 509, cert. denied, 484 U.S. 953, 108 S.Ct. 345, 98 L.Ed.2d 371 (1987) (manufacturer of defective circuit breaker panel who did not claim to have rendered any particularized services with respect to design or construction of building in which component it supplied was installed, could not claim protections of § 2B. "The Legislature enacted G.L. c. 260, § 2B, to limit the liability of architects, engineers, contractors, or others involved in the design, planning, construction, or general administration of an improvement to real property." Klein v. Catalano, 386 Mass. 701, 720, 437 N.E.2d 514 (1982).¹⁰

In the instant matter, the plaintiffs' claims are premised on the design, manufacture, and supply to the project of the GFRC exterior wall panels (in the case of Coastal) and window systems (in the case of Howard). The parties dispute whether these defendants are "mere suppliers of standardized products, ... [or whether they] perform[ed] acts of `individual expertise' akin to those commonly thought to be performed by architects and contractors." Dighton v. Federal Pac. Elec. Co., 399 Mass. at 696, 506 N.E.2d 509.

Thus, whether the statute of repose bars claims against Coastal or Howard depends upon whether the summary judgment record discloses that "there is no genuine issue of material fact as to whether the defendants were involved in the design, planning, construction or general administration of [an improvement to real property]." Rosario v. M.D. Knowlton Co., 54 Mass.App.Ct. 796, 799, 767 N.E.2d 1126 (2002).

(a) Coastal. Coastal manufactured and supplied the GFRC panels that comprised the "skin" of the St. George. Suppliers of building components have been determined to be protected acotrs entitled to protection by the repose provision of § 2B, only where the role of supplier was incidental and the actor's primary function was to provide individual expertise and particularized services relating to design and construction. See McDonough v. Marr Scaffolding Co., 412 Mass. 636, 642, 591 N.E.2d 1079 (1992) (defendant protected by § 2B where its role of supplying bleachers was incidental to primary function of performing particularized construction services in assembling and installing bleachers). See also Rosario v. M.D. Knowlton Co., 54 Mass.App.Ct. at 802, 767 N.E.2d 1126 (§ 2B protection extended to supplier of lift who provide individual expertise and particularized services, collaborated in design of lift, supervised installation, and specified and supervised building modifications).

The summary judgment materials reflect that GFRC¹¹ is not a fungible product designed for public sale or for general use, but is a component of an exterior wall system that Coastal custom-manufactured specifically for the St. George project pursuant to the specifications of architects and engineers, and that Coastal collaborated in the design and erection of the panels. Rosario v. M.D. Knowlton Co., 54 Mass.App. Ct. at 801, 767 N.E.2d 1126. Coastal, therefore, is entitled to the protection...