Friends University v. W. R. Grace & Co.

• Decision Date: 05 April 1980
• Docket Number: No. 50468,50468
• Citation: 227 Kan. 559,608 P.2d 936
• Parties: FRIENDS UNIVERSITY, a not for profit corporation, Appellant, v. W. R. GRACE & CO.; GAF Corporation; the Pennsylvania Insurance Co.; and Commercial Union Insurance Co., Appellees.
• Court: Kansas Supreme Court

Page 936

608 P.2d 936

227 Kan. 559

FRIENDS UNIVERSITY, a not for profit corporation, Appellant, v. W. R. GRACE & CO.; GAF Corporation; the Pennsylvania Insurance Co.; and Commercial Union Insurance Co. Appellees.

No. 50468.

Supreme Court of Kansas.

April 5, 1980.

Syllabus by the Court

In an action concerning defects in roofing materials, wherein the plaintiff alleges the statute of limitations was tolled until the precise cause of its leaking roof was ascertained and that certain acts of the defendants also tolled the statute of limitations, the record is examined and it is held : The trial court did not err in granting summary judgment in favor of the defendant manufacturers on the ground that the action was barred.

Kenneth P. Stewart, of Boyer, Donaldson & Stewart, Wichita, argued the cause, and Martin R. Ufford, Wichita, of the same firm, was with him on the brief for appellant.

H. E. Jones, of Hershberger, Patterson, Jones & Roth, Wichita, argued the cause, and J. Michael Kennalley, Wichita, of the same firm, was with him on the brief for appellee, W. R. Grace & Co.

McFARLAND, Justice:

This is an action brought by Friends University against the manufacturers of certain roofing materials used in the construction of the university's new library building. The roof leaked and Friends alleges the defendants are liable therefor on theories of negligence, strict liability in tort, and breach of implied warranty. The two defendant insurance companies are successive sureties on defendant GAF Corporation's bond. The district court granted summary judgment to defendants on the ground the claims were barred by the relevant statutes of limitations. Friends appeals from that judgment.

The library roof was completed in September, 1969. The general contractor for the building was the Johnson Construction Company, with the roofing subcontractor being the Buckley Roofing Company. Neither company is party to this action. The alleged defects are in the "built-up" roof, as opposed to the structural roof. The roof first leaked in 1970 or 1971 and continued to leak during virtually every rain occurring thereafter. Friends was particularly concerned with the leaks, inasmuch as the water presented a serious risk to the library contents. Complaints were initially made to the roofing company, but ultimately the manufacturers, W. R. Grace & Co., and GAF Corporation, were also involved. The roofing company made the first repairs in 1970. On October 18, 1974, the president of Friends wrote the following letter to the architect, the general contractor, the roofing company, and GAF:

"Gentlemen:

"Re: Edmund Stanley Library on Friends University campus

"I have been very reluctant to get involved in the problems of the leaking roof on the library on this campus. However, the situation seems to be getting no better and, as President of the school, I feel it is important for me to review the situation. I have been on campus only two years, but I have heard nothing but complaints about the leaking library roof.

"It is my understanding that the building was completed and ready for use in September, 1969. Less than two years later the roof started leaking. Mr. Bushfield sent a letter under the date of April 27, 1971 to the Buckley Roofing Company (copy attached).

"Again, according to my understanding, nothing was done even though the roof leaked almost every time it rained. Soon after I arrived on campus in August, 1972, I became aware of the seriousness of this situation. After much pressure, Mr. Buckley wrote a letter dated January 19, 1973, to Mr. Cramer, our Business Manager (copy attached).

"We had hoped that with the completion of the work of the Buckley Company that the leaking problem would be over. Such was not the case.

"In October 1973, Ray Winchester wrote to G.A.F. Corporation (copy attached). This reply also attached. No action was forthcoming.

"Early this fall, 1974, we were faced once again with severe leaking problems.

"I feel that it was mandatory that we do something. Damage to thousands of books would indeed be a serious matter. Roof Mechanics, Inc. have just completed the following contract (copy attached). Again we have no guarantee that this is going to complete the job.

"Why should a college and the owner have to be the one to suffer for something that should have been right when the building was built in the first place? The college has very limited funds and it is quite a loss to have to spend this kind of money on a building that is only five years old.

"I wish, somehow, all of you people, who were involved in the building of this building, could get together to really solve the problem once and for all so that we would not have to worry constantly about the leaking roof. You can well appreciate how very frustrating this is, especially in a library.

"Any help or guidance you can give to this very troublesome matter will be greatly appreciated.

"Sincerely,

"Harold C. Cope

President"

The defendants participated in various conferences and inspections of the roof, but each consistently denied liability for the problem. In April of 1975 an independent expert was retained, who pinpointed the cause of the problem as being the failure of the W. R. Grace Zonolite Dyzone Board to bond to the substructure, and who was of the opinion that the structure would require complete reroofing. A like problem had occurred in other structures, and in 1971 W. R. Grace had developed a special Zonolite nail which apparently resolved the bonding difficulty. The special nail must be used at the time of initial roofing or reroofing and is not suitable for partial repairs of existing roofs. The action herein was commenced on March 29, 1977, and sought recovery on theories of negligence, strict liability in tort, and breach of implied warranty causes of actions with two and three-year statutes of limitations (K.S.A. 60-512 and 60-513). The two defendant manufacturers filed motions for summary judgment based on the relevant statutes of limitations. The district court sustained the motions, determining:

"(T)he building in question was completed in September of 1969, and that Plaintiff was aware that the roof of the library was leaking less than two years after that date. At that time, Plaintiff knew or should have known that it had suffered a substantial injury giving rise to a cause of action. This action was commenced on March 29, 1977.

"The Court finds that claims of Plaintiff against these Defendants founded upon tort, breach of implied warranty, and strict liability are barred by the Statute of Limitations. The Court further finds that conduct of Defendant, W. R. Grace & Co., did not toll the Statute of Limitations as claimed by Plaintiff."

Friends appeals from the entry of the summary judgments. Preliminarily, we note that whereas the appeal was taken from the summary judgment entered as to all three theories, the appellant's brief is devoted wholly to the negligence claim. Defendant-appellees correctly point out that this constitutes a waiver or abandonment of claims of error relative to the other theories. Steele v. Harrison, 220 Kan. 422, 552 P.2d 957 (1976). However, by virtue of the result we reach herein the outcome of the appeal is not altered by the waiver of the claims of error relative to the other theories.

Friends contends the statute of limitations did not commence to run until April, 1975, when the expert's report disclosed the substantial injury plaintiff had suffered. The position of Friends is that only upon receipt of such report was the severity of the problem revealed only then did Friends ascertain the roof had wholly failed and would have to be redone in its entirety. Friends seeks to extend the two-year statute of limitations by application of K.S.A. 60-513(b ), which provides:

"(b ) Except as provided in subsection (c ) of this section, the cause of action in this section shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action."

Friends relies heavily on Hecht v. First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649 (1971), which was a medical malpractice action arising from radiation therapy administered to treat Hodgkin's disease. In Hec...