Morgan v. Criterium-Mooney Engineers
| Decision Date | 16 December 2009 |
| Docket Number | Civil Action CV-07-381 |
| Parties | KATHERINE MORGAN, Plaintiff, v. CRITERIUM-MOONEY ENGINEERS, et al., Defendants |
| Court | Maine Superior Court |
Defendants Criterium-Mooney Engineers' and Colin and Nancy Sargent's motions for summary judgment are before the Court. The Court grants judgment for Criterium-Mooney on plaintiff Katherine Morgan's claims for intentional misrepresentation and violations of Maine's Unfair Trade Practices Act because the plaintiff has failed to make her prima facie case, and on Morgan's breach of contract claim as a matter of law. The Court denies Criterium-Mooney summary judgment on Morgan's negligence claim because the plaintiff has generated triable issues of fact sufficient to survive this motion, and finds the liability-limitation clause in the parties' contract void against public policy. The Court denies the Sargents' motion on all claims.
Criterium-Mooney is an engineering firm that performs pre-purchase residential home inspections. In 1997, Colin and Nancy Sargent purchased a residential home at 114 Baxter Boulevard in Portland Maine. At that time, Criterium-Mooney Engineers inspected the property and issued a report suggesting optional improvements the Sargent's could make to the home.
The Sargents acted on this report and upgraded the building by installing a new slate roof, flashing, and ridge vent installing new wooden gutters; installing a new furnace and boiler; installing new custom windows throughout the home and removing asbestos from the existing furnace. The Sargents also had an electrician review the wiring in the house replace the existing fuses with circuit breakers, and install GFCI outlets.
The Sargents never observed any signs of moisture in the home's attic, but did experience what they characterized as "minor water seepage" in the basement. At one point the Sargents noticed a small amount of water coming into the home through the fireplace, and they had their roofing contractor investigate. The roofer could not locate any problems, but as a preventative measure the Sargents installed a liner in the chimney and had the exterior masonry facing the street water-sealed. They disclosed this information to plaintiff Katherine Morgan.
In 2001 the Sargents listed the home for sale and hired Adele Aronson as their agent. Morgan, an Administrative Judge for the Social Security Administration, visited the residence on three occasions between 2001 and 2003. In 2003 she became seriously interested in purchasing the property and visited it repeatedly. Her own real-estate broker accompanied her during each visit. Morgan hired Criterium-Mooney to conduct a standard pre-purchase home inspection in October of that year. Their inspection contract defined a "Standard Inspection," as:
A limited visual inspection to identify significant deficiencies and/or repairs needed in the major systems (structural, heating, air conditioning, plumbing, electrical, roof, exterior) as well as provide a general understanding of the property. This is a limited inspection based on visible evidence readily available during the inspection (without moving furnishings, removing finishes, etc.) and is the opinion of the engineer performing the inspection. It is not a guarantee or warranty regarding the condition of this building. Our maximum liability for loss suffered by the client due to any cause is limited to our inspection fee.
The inspection fee was $590.00. Other more comprehensive inspection options with correspondingly higher liability caps were available, but Morgan declined them.
The engineer from Criterium-Mooney spent at least one hour inspecting the home, and was accompanied by Morgan and her broker through the basement, kitchen, living room, and other areas. Neither Morgan nor her broker saw anything that caused them concern during this or any other visit, including a final pre-closing walk-through performed after the inspection.
On October 22, 2003, Criterium-Mooney completed a Home Inspection Report based on the engineer's visit to the home. The report identified "evidence of some water seepage in the basement," which "did not appear to be extensive." It stated that "only a monitoring over an extended period of time will help understand exactly how much [basement water] seepage might occur." The plumbing was identified as being in "good to fair condition" and the possibility of future repairs was expressly addressed. The report also noted that some walls were probably not insulated. In its final assessment, the report concluded that the home was "in average condition when compared to others of similar age and construction type."
Morgan purchased the home and took up residence in November 2003. On January 1, 2004 a sewer pipe burst in the home's basement, and was repaired by Pine State Plumbing. Later that winter the basement of the house experienced significant flooding through the foundation walls. Morgan contracted David Dalessandri of Concrete Prescriptions, LLC, to prevent the water intrusion, but his efforts were only partially successful. Morgan waited approximately one year to have follow-up work performed. That year Morgan also had shutters installed on the interior of the home's windows.
In 2005 Morgan's attorney sent a letter to the Sargents, Criterium-Mooney, and the real estate agents demanding $3,000.00 compensation for the water intrusion. The letter alleged that both the Sargents and Criterium-Mooney had "minimized" the extent of the water problems in the basement, but it did not mention water intrusion in any other portion of the home.
Morgan claims she initially noticed evidence of water entering the first floor of the residence between 2004 and 2006, though her testimony on this point has been inconsistent. She definitely noticed water entering the home around the first floor windows in 2005. This water eventually damaged the shutters that she had installed the previous year. In 2006 Morgan noticed significant problems caused by water intrusion in the aboveground floors of the home, including crumbling, cracking, and peeling paint and plaster. Finally, in May 2006 a water pipe burst in Morgan's basement. Pine State Plumbing repaired the burst.
In 2007 Morgan made an insurance claim for the water damage to her home. Her insurer sent engineer James Thibodeau to inspect the damage, and subsequently denied coverage. The insurer later released Thibodeau to testify as Morgan's expert witness. On July 9, 2007 Morgan filed her complaint against Criterium-Mooney alleging breach of contract, negligent misrepresentation, fraudulent misrepresentation, claims under Maine's Unfair Trade Practices Act (the "UTPA"), 5 M.R.S.A. § 205-A et seq. She later amended her Complaint to join the Sargents and their realtors as defendants. The Sargents stand accused of fraudulent or negligent misrepresentation, and Morgan seeks punitive damages.
On March 10, 2009 all claims relating to the realtors were dismissed with prejudice. On August 7, 2009 the Sargents filed their motion for summary judgment. Criterium-Mooney filed its own motion on August 20, 2009.
The gist of Morgan's complaint is that the Sargents and Criterium-Mooney conspired to hide severe structural problems in the home to induce Morgan to purchase the property. Absent actual intent on the part of either or both parties, Morgan alleges that the Sargents and Criterium-Mooney negligently failed to discover or disclose defects that they were duty-bound to reveal. But for this negligence Morgan claims she would not have purchased the home and would not be facing the massive repairs she says are necessary.[1]Specific to Criterium-Mooney, Morgan alleges that the home-inspection contract was breached through the engineer's negligence and that Criterium-Mooney's actions amount to an unfair or deceptive business practice.
Both defendants attack Morgan's evidence as insufficient to make a prima facie case for her claims. The Sargents strenuously claim that they never experienced water intrusion other than what they disclosed prior to sale. Criterium-Mooney argues that it competently performed its inspection contract and attacks the legal applicability of Morgan's tort claims. In the alternative Criterium-Mooney argues that its liability is contractually limited to $590.00.
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, ¶ 4, 770 A.2d 653, 655. A motion for summary judgment must be supported by citations to record evidence of a quality that would be admissible at trial. Id. at ¶ 6, 770 A.2d at 656 (citing M.R. Civ. P. 56(e)). An issue of "fact exists when there is sufficient evidence to require a fact-finder to choose between competing versions of the truth at trial." Inkell v. Livingston, 2005 ME 42, ¶ 4, 869 A.2d 745, 747 (quoting Lever v. Acadia Hosp. Corp., 2004 ME 35, ¶ 2, 845 A.2d 1178, 1179). Any ambiguities "must be resolved in favor of the non-moving party." Beaulieu v. The Aube Corp., 2002 ME 79, ¶ 2, 796 A.2d 683, 685 (citing Green v. Cessna Aircraft Co., 673 A.2d 216, 218 (Me. 1996)).
Morgan admits that she has no direct evidence to support her allegations. Aside from the circumstantial evidence of the water intrusion itself, Morgan relies primarily on her contractors' affidavits to support her claims. The first contractor is James Thibodeau, a professional engineer who first inspected the property in 2007 on behalf of Morgan's insurer.
Thibodeau testified that he "observed past and ongoing water infiltration issues in the...
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