Rankin v. S. St. Downtown Holdings, Inc.
| Decision Date | 06 August 2019 |
| Docket Number | No. 2018-0604,2018-0604 |
| Parties | John C. RANKIN & a. v. SOUTH STREET DOWNTOWN HOLDINGS, INC. South Street Downtown Holdings, Inc. v. TruexCullins and Partners Architects & a. |
| Court | New Hampshire Supreme Court |
Shaheen & Gordon, P.A., of Dover, for the plaintiffs, John C. Rankin and MaryAnne Rankin, filed no brief.
Devine, Millimet & Branch, Professional Association, of Manchester (Andrew D. Dunn and Tavish M. Brown on the brief, and Mr. Dunn orally), for the defendant/third-party plaintiff, South Street Downtown Holdings, Inc.
Lewis Brisbois Bisgaard & Smith LLP, of Boston, Massachusetts (Kenneth B. Walton and Elena M. Brander on the brief, and Mr. Walton orally), for third-party defendant TruexCullins and Partners Architects.
Morrison Mahoney LLP, of Manchester (William A. Staar and Nicholas Meunier on the brief, and Mr. Staar orally), for third-party defendant Wagner Hodgson, Inc.
This case is before us on an interlocutory transfer without ruling from the Superior Court (MacLeod , J.). See Sup. Ct. R. 9. The trial court transferred the following question:
Does RSA 508:4-b ("the statute of repose") as amended in 1990 apply to and bar third party actions by a property owner defendant (in a premises liability action) for indemnity and/or contribution against architects involved in the design of the improvement to real property which the injured plaintiff alleges was dangerous and did not meet applicable building codes?
We conclude that it does.
We accept the facts as presented in the interlocutory transfer statement. See In re C.M., 163 N.H. 768, 770, 48 A.3d 942 (2012). We recite additional facts, for background only, as alleged in the complaint brought by John C. Rankin (Rankin) and his wife MaryAnne (collectively, the underlying plaintiffs) and in South Street Downtown Holdings, Inc.'s (South Street) third-party complaint. In March 2015, Rankin fell while leaving a business located at 70 South Main Street in Hanover (the property). The property is owned by South Street. In March 2017, the underlying plaintiffs sued South Street for negligence and loss of consortium, alleging that Rankin fell on an "inadequate and dangerous ramp or partial stair" that "did not meet applicable building codes."
South Street, in turn, filed a third-party complaint against the third-party defendants, project architect TruexCullins and Partners Architects (TruexCullins) and landscape architect Wagner Hodgson, Inc. (Wagner Hodgson), seeking indemnity and/or contribution. South Street had hired the third-party defendants to serve as design professionals for renovations to the property that took place between 2002 and 2009, and were substantially completed by January 2009. South Street alleged that both third-party defendants were involved in designing the area in which Rankin allegedly fell. On appeal, South Street concedes that its "third-party action[ ] was brought more than 8 years after the date of substantial completion."
Wagner Hodgson moved to dismiss on grounds that the claims against it are barred by the statute of repose, RSA 508:4-b (2010). The trial court found that "a substantial basis exists for a difference of opinion as to whether the current version of [ RSA 508:4-b ] applies to indemnity and/or contribution claims arising out of a deficiency in the creation of an improvement to real property," and transferred the question now before us.
To answer the transferred question, we must engage in statutory interpretation.
The interpretation of a statute is a question of law, which we review de novo. In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. In construing its meaning, we first examine the language found in the statute, and when possible, we ascribe the plain and ordinary meanings to the words used. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. We interpret statutory provisions in the context of the overall statutory scheme. Absent an ambiguity, we will not look beyond the language of the statute to discern legislative intent.
Bank of N.Y. Mellon v. Dowgiert, 169 N.H. 200, 204, 145 A.3d 138 (2016) (citations omitted).
The statute at issue, RSA 508:4-b, currently provides, in relevant part:
Each of the parties contends that the plain language of the statute supports its position. South Street focuses first upon the specific list of actions subject to the statute — "all actions to recover damages for injury to property, injury to the person, wrongful death or economic loss arising out of any deficiency in the creation of an improvement to real property" — and notes that actions for indemnity and contribution are not included in that list. Id. Citing the interpretive canon expressio unius est exclusio alterius, South Street contends that "it must be presumed that the legislature excluded all other types of actions." See Appeal of Cover, 168 N.H. 614, 622, 134 A.3d 433 (2016) (). South Street also argues that to interpret RSA 508:4-b as applying to indemnity and/or contribution actions would add language to the statute in violation of the rule that "[w]e interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include." Bank of N.Y. Mellon, 169 N.H. at 204, 145 A.3d 138. Finally, South Street argues that the words "all actions" in RSA 508:4-b cannot be read to include actions for indemnity and/or contribution without violating the rule that "all of the words of a statute must be given effect and that the legislature is presumed not to have used superfluous or redundant words." Merrill v. Great Bay Disposal Serv., 125 N.H. 540, 543, 484 A.2d 1101 (1984). According to South Street, "[t]o read RSA 508:4-b to apply to any action regardless of the category of damage the claim seeks to recover would render the serial list in RSA 508:4-b, I[,] superfluous."
The third-party defendants,1 on the other hand, point to the statute's expansive language, covering "all actions to recover damages for injury to property, injury to the person, wrongful death or economic loss arising out of any deficiency in the creation of an improvement to real property." RSA 508:4-b, I (emphases added). They note that we have broadly interpreted the statute's "language [as] unambiguously encompass[ing] all types of claims, as long as they arise from a deficiency in the creation of an improvement to real property." Phaneuf Funeral Home v. Little Giant Pump Co., 163 N.H. 727, 731, 48 A.3d 912 (2012) (emphasis added). They conclude that RSA 508:4-b bars the claims against them because "[i]ndemnity and contribution claims linked to building-improvement-deficiency claims are ‘actions’ to recover ‘economic loss’ that ‘arise out of’ such improvements."
South Street challenges two of the premises underlying the third-party defendants' interpretation; namely, that the third-party action is a claim for "economic loss" and that it "arise[s] out of" a deficiency in the creation of an improvement to real property. South Street first asserts that " ‘economic loss’ is a term of art which has acquired a meaning at common law" and that, pursuant to RSA 21:2, that term must be construed accordingly. See RSA 21:2 (2012) (). South Street contends that "[t]his Court defines an economic loss as ‘that loss resulting from the failure of the product to perform to the level expected by the buyer and ... commonly measured by the cost of repairing or replacing the product.’ " (Quoting Lempke v. Dagenais, 130 N.H. 782, 792, 547 A.2d 290 (1988).) It also cites Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 891 A.2d 477 (2005), for the proposition that "economic loss is characterized as damage that occurs to the inferior product itself, through deterioration or non-accidental causes ... [and] encompass[es] both damage to the defective product itself and the diminution in value of the product because it is inferior in quality." Kelleher, 152 N.H. at 835, 891 A.2d 477 (citation omitted). It then argues that because its third-party action is not one to recover damages to repair or replace the allegedly defective stairs or for the diminution in their value, it is not an action to recover damages for economic loss under the statute.
South Street's reliance upon Lempke and Kelleher is misplaced. Lempke involved structural problems in a recently constructed garage that required repair, and presented the question "whether a ...
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