Phaneuf Funeral Home v. Little Giant Pump Co.

• Decision Date: 29 June 2012
• Docket Number: No. 2011–151.,2011–151.
• Citation: 48 A.3d 912,163 N.H. 727
• Court: New Hampshire Supreme Court
• Parties: PHANEUF FUNERAL HOME v. LITTLE GIANT PUMP COMPANY & a.

163 N.H. 727

48 A.3d 912

PHANEUF FUNERAL HOME

v.LITTLE GIANT PUMP COMPANY & a.

No. 2011–151.

Supreme Court of New Hampshire.

Argued: April 11, 2012.

Opinion Issued: June 29, 2012.

Sherman Law, PLLC, of Portsmouth (John P. Sherman on the brief), and Cozen O'Connor, of Philadelphia, Pennsylvania (Joseph F. Rich on the brief and orally), for the plaintiff.

Law Offices of John B. Schulte, of Manchester (Nicholas J. Deleault on the brief and orally), for defendant Little Giant Pump Company.

Mallory & Friedman, PLLC, of Concord (Christine Friedman on the brief and orally), for defendant Boyer Interior Design.

Cornell & Gollub, of Boston, Massachusetts (Peter M. Durney on the brief), and Littleton Joyce Ughetta Park & Kelly LLP, of Purchase, New York (Jason P. Sultzer on the brief and orally), for defendant Leviton Manufacturing Company.

Law Offices of Thomas M. Niarchos, of Boston, Massachusetts (David J. Donovan on the brief and orally), for defendant The Elegant Earth, Inc. d/b/a The Arbor.

LYNN, J.

The plaintiff, Phaneuf Funeral Home (Phaneuf),¹ appeals orders of the Superior Court ( Colburn, J.) granting motions for summary judgment in favor of the defendants, Little Giant Pump Company (Little Giant), Boyer Interior Design (Boyer), Leviton Manufacturing Company (Leviton), and The Elegant Earth, Inc. (Elegant). We affirm the grant of summary judgment in favor of Boyer, but otherwise reverse.

I

The record reflects the following facts. In 1998, Phaneuf hired Boyer to do interior design and light renovation work in the basement and adjacent hallway of the funeral home. In the hallway, Boyer installed a wall-mounted water fountain that it purchased from Elegant, an Alabama-based household goods retailer. Defendant Leviton supplied the fountain's power cord to Little Giant, which manufactured the fountain.

The water fountain was pre-assembled, and could be used simply by hanging it from the wall and plugging it into an existing wall power outlet. Phaneuf, however, wanted something more permanent that would blend with the wall. To satisfy this preference, Boyer designed a back plate to be affixed to the wall, attached the fountain to the back plate, and used a faux finish paint application to blend the fountain and the back plate with the wall. Boyer finished installing the water fountain in January 1999.

On March 17, 2007, a fire broke out at the funeral home. Alleging that the water fountain's defective pump and power cord caused the fire, Phaneuf brought negligence and strict product liability claims against each defendant,although it later withdrew its negligence claim against Boyer. Each defendant moved for summary judgment, arguing that Phaneuf's claims were time-barred by RSA 508:4–b, I (2010), the statute of repose for “Damages From Construction.” The superior court agreed, and granted each motion. This appeal followed.

II

The statute of repose for damages from construction provides, in pertinent part:

Except as otherwise provided in this section, all actions to recover damages ... arising out of any deficiency in the creation of an improvement to real property, including without limitation the design, labor, materials, engineering, planning, surveying, construction, observation, supervision or inspection of that improvement, shall be brought within 8 years from the date of substantial completion of the improvement, and not thereafter.

RSA 508:4–b, I.

Phaneuf concedes that its action was filed outside the eight-year time period set forth in RSA 508:4–b, but argues: (1) that this statute is inapplicable to product liability actions; ² (2) that the fountain did not constitute an “improvement to real property” as the statute requires; and (3) in the alternative, that the statute applies only to those who provide products and services that are particularized to or “specifically designed” for the improvement in which they are used or incorporated—thus excluding product manufacturers and retail sellers.

In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Big League Entm't v. Brox Indus., 149 N.H. 480, 482, 821 A.2d 1054 (2003). If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment. Id. We review the trial court's application of the law to the facts de novo. Id.

In matters of statutory construction, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385, 13 A.3d 145 (2011). When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. We read words and phrases not in isolation, but in the context of the entire statute and statutory scheme. Id. When the language of a statute is plain and unambiguous, we do not look beyond it for further indications of legislative intent. Id.

A

Phaneuf first argues that, because the statute does not use the words “product,” “products,” or “product liability,” it does not afford protection against product liability claims, but rather is “limited to claims of negligence for design or construction of an improvement.” RSA 508:4–b provides, however, that “all actions to recover damages ... arising out of any deficiency in the creation of an improvement to real property” must be brought within eight years from the date of substantial completion of the improvement. That language unambiguously encompasses all types of claims, as long as they arise from a deficiency in the creation of an improvement to real property. We therefore decline Phaneuf's invitation to adopt a categorical rule excluding product liability actions from the statute's coverage.

We also do not share Phaneuf's concern that by applying RSA 508:4–b to product liability claims we will effectively “extinguish” them. While RSA 508:4–b, I, applies to all types of claims regardless of the theory of liability, the statute's reach is limited to actions “arising out of any deficiency in the creation of an improvement to real property.” Although the statute may result in certain product manufacturers or sellers escaping liability in certain circumstances, RSA 508:4–b, I, does not in any sense create a statute of repose for all product liability claims.

B

Next, Phaneuf contends that there is a genuine question of material fact as to whether the wall fountain constitutes an improvement to real property. In interpreting RSA 508:4–b, we construe its words and phrases according to their common and approved usage unless from the statute it appears that a different meaning was intended. N.H. Resident Ltd. Partners of Lyme Timber Co. v. N.H. Dep't of Revenue Admin., 162 N.H. 98, 101, 27 A.3d 829 (2011). RSA 508:4–b does not define the term “improvement”; nor have we had occasion, before today, to adopt a definition. After carefully reviewing the common law from other jurisdictions, we conclude that an improvement means an alteration to or development of real property that either (1) enhances or is intended to enhance its value or (2) improves or is intended to improve its use for a particular purpose. See Plato Associates v. Envtl. Compliance Svcs., 298 Conn. 852, 9 A.3d 698, 706 (2010); Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 639 N.E.2d 425, 429 (1994) (focusing on whether the item “ increased value ... to the realty when installed for its intended purpose”); Barron v. Kerr–McGee Rocky Mountain Corp., 181 P.3d 348, 350–51 (Colo.App.2007) (noting that an improvement is a permanent addition to real property that “may, among other things, enhance the real property's capital value”); accord Black's Law Dictionary 826 (2009) (defining improvement as “[a]n addition to real property, whether permanent or not; esp., one that increases its value or utility or that enhances its appearance”); 41 Am.Jur.2d Improvements § 1, at 336 (2005) (defining improvement as “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor and money and is designed to make the property more useful or valuable as distinguished from ordinary repairs”). See generally Annotation, What Constitutes “ Improvement to Real Property” for Purposes of Statute of Repose or Statute of Limitations, 122 A.L.R.5th 1 (2004).

We need not set forth a comprehensive list of factors trial courts must use in determining whether a particular item constitutes an improvement under RSA 508:4–b as defined above. Even construing the facts in a light most favorable to the plaintiff, the undisputed facts in the record establish that the water fountain at issue was both custom-designed by Boyer to become a permanent installation in the funeral home's structure and constructed for the particular purpose of improving the home's aesthetics. See41 Am.Jur.2d Improvements § 1, at 336 (“[A] fixture, by definition, is an improvement to real property, but an improvement to real property need not be a fixture.”). Additionally, removing the fountain would have damaged the wall. Aside from the conclusory assertion in its brief that a question of fact exists as to whether the installed fountain was an improvement, Phaneuf has identified no facts in the summary judgment record to undercut the superior court's conclusion that, while the fountain may not have been an improvement when first purchased and hung upon the wall, it became one when Boyer integrated it into the building's structure.

C

Phaneuf next contends that, to the extent that RSA 508:4–b affords any protection to manufacturers and sellers of products that later become improvements to real property, it bars claims only against those who provide products particularized to the improvement at issue— i.e., those who ...