Town of Kearny v. Brandt

• Decision Date: 20 June 2013
• Citation: 67 A.3d 601,214 N.J. 76
• Court: New Jersey Supreme Court
• Parties: TOWN OF KEARNY, Plaintiff–Appellant and Cross–Respondent, v. Louis F. BRANDT, AIA, Michael Kuybida, AIA, Robert Strebi, R.A., Brandt–Kuybida Architects, Defendants–Respondents and Cross–Appellants, and John N. Harrison, P.E., Harrison–Hamnett, P.C., William J. St. Pierre, P.E., Soils Engineering Services, Inc., Defendants.

214 N.J. 76

67 A.3d 601

TOWN OF KEARNY, Plaintiff–Appellant and Cross–Respondent,

v. Louis F. BRANDT, AIA, Michael Kuybida, AIA, Robert Strebi, R.A., Brandt–Kuybida Architects, Defendants–Respondents and Cross–Appellants,andJohn N. Harrison, P.E., Harrison–Hamnett, P.C., William J. St. Pierre, P.E., Soils Engineering Services, Inc., Defendants.

Supreme Court of New Jersey.

Argued Nov. 27, 2012.

Decided June 20, 2013.

Norma Garcia–Anstatt argued the cause for appellant and cross-respondent (Castano Quigley, attorneys).

Katherine Herr Solomon, a member of the New York bar, argued the cause for respondents and cross-appellants (Mauro Lilling Naparty and Cimino & Filippone, attorneys; Ms. Solomon and Matthew W. Naparty, of counsel and on the briefs).

Justice PATTERSON delivered the opinion of the Court.

This construction dispute requires the Court to consider two issues: 1) when a building can be considered substantially complete for purposes of calculating the ten-year period of the statute of repose, N.J.S.A. 2A:14–1.1(a), and 2) whether the Comparative Negligence Act, N.J.S.A. 2A:15–5.2, and the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A–2, authorize allocation of fault at trial to defendants who have obtained dismissals pursuant to the statute of repose, N.J.S.A. 2A:14–1.1(a).

Following structural failures in its public safety facility, plaintiff Town of Kearny (Town) sued the project's architectural firm, Brandt–Kuybida Architects (Brandt–Kuybida), and three of its individual architects, alleging that Brandt–Kuybida was liable for defects in the facility that rendered it unusable. The Town and Brandt–Kuybida filed claims against the project's soil engineering firm, Soils Engineering Services, Inc. (SESI), and one of its individual engineers, and structural engineering firm, Harrison–Hamnett, P.C. (Harrison–Hamnett), and its principal. The trial court granted summary judgment motions filed by SESI and Harrison–Hamnett on the ground that the Town's complaint was filed more than ten years after the engineers completed their work on the construction project, ruling that the claims against these defendants were barred by the statute of repose and the statute of limitations. The trial court, however, denied a similar motion filed by the defendant architect, holding that the ten-year periods prescribed by the statutes of repose and limitations were triggered by the issuance of the first Temporary Certificate of Occupancy, and, accordingly, the Town's claims against the architect were timely filed. The trial court also denied Brandt–Kuybida's application for an apportionment of fault at trial to SESI and Harrison–Hamnett, pursuant to the Comparative Negligence Act and the Joint Tortfeasors Contribution Law.

The Town appealed. The Appellate Division affirmed the trial court's application of the statutes of repose and limitations to Brandt–Kuybida but reversed the trial court's denial of the architect's application for an apportionment of fault to the dismissed codefendants.

We affirm. We hold that the trial court properly denied Brandt–Kuybida's motion for summary judgment on the statute of repose issue. We concur with the trial court's finding that the ten-year period prescribed in N.J.S.A. 2A:14–1.1(a) commenced when the first Temporary Certificate of Occupancy was issued for the Town's public safety facility. We further hold that, when the claims against a defendant are dismissed on statute of repose grounds, fault may be apportioned to the dismissed defendant under the Comparative Negligence Act and the Joint Tortfeasors Contribution Law.

I.

The South Kearny Improvement Projects Corporation (SKIP) was charged by the Town with the responsibility to oversee the design and construction of a new public safety facility, including police and fire stations. In October 1989, Brandt–Kuybida submitted a proposal to SKIP to design and plan the new facility. SKIP selected Brandt–Kuybida to perform the work. A principal of the firm, Louis Brandt, was initially designated as the lead architect. The Town and Brandt–Kuybida executed a contract on April 9, 1990. After Brandt–Kuybida dissolved in 1994, Michael Kuybida became the primary architect for the project.

Other professionals were hired for the Town's project. SKIP directly retained SESI to conduct a soil investigation. SESI completed and reported on its soil investigation in July 1990, and had no further involvement with the facility. Brandt–Kuybida hired Harrison–Hamnett to serve as the structural engineer, with responsibility to design the facility's foundations, piles, roof structure and wall reinforcement. Harrison–Hamnett completed its work on October 30, 1995.

SKIP chose Belcor Construction (Belcor) to build the facility in accordance with Brandt–Kuybida's design, and, on July 11, 1994, SKIP and Belcor entered into a construction contract. Among other provisions, the construction contract required Belcor to achieve substantial completion of the project within 360 days of the issuance of a Notice to Proceed. That notice was issued on September 12, 1994. The contract between SKIP and Belcor defined substantial completion to be the date upon which the project architect, Brandt–Kuybida, certified that the facility is “sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use.”

Construction of the facility began in the fall of 1994. On November 15, 1995, Belcor signed a document entitled “Certificate of Substantial Completion” (Certificate). On November 24, 1995, Brandt–Kuybida and SKIP signed that same document. In language similar to that of the July 11, 1994 contract, the Certificate defined the date of substantial completion as “the Date certified by the Architect when construction is sufficiently complete, in accordance with the Contract Documents, so the Owner can occupy or utilize the Work or designated portion thereof for the use for which it is intended, as expressed in the Contract Documents.” The signatories to the Certificate, however, failed to complete it. For reasons that the record does not disclose, the “date of issuance” and the “date of completion” of the project were left blank on the form.

According to a December 7, 1995 memorandum from Brandt–Kuybida, a November 28, 1995 inspection revealed that open items had to be completed and that, while municipal construction, fire and electrical approval had been obtained, approval for the facility's plumbing was still pending. A December 4, 1995 punch list identified eleven outstanding items requiring additional work. On January 18, 1996, Brandt–Kuybida wrote to Belcor confirming the continued existence of open items and a pending plumbing inspection of the facility's showers. It was not until April 5, 1996, that the Kearny Police Department requested permission to occupy its portion of the building. On April 9, 1996, the Town's Construction Official issued the first Temporary Certificate of Occupancy, limited to the police section of the building and subject to completion of the items in a March 28, 1996 punch list. On May 23, 1996, the Construction Official issued the second Temporary Certificate of Occupancy, permitting the Kearny Fire Department to use its section of the building.

Structural defects in the facility surfaced shortly after the Kearny Police Department took occupancy. The building settled differentially, causing gaps between the ceiling and a wall, as well as leaks, buckled tiles and cracks in the walls. The Kearny Police Department reported leaks in various parts of the building and doors that could not close because they did not fit in their frames. Although the Town continued to use the facility, there were further complaints about structural flaws in the building. In 2003, the Town's Construction Official received an emergency call that the ceiling in the police dispatch area of the building was about to collapse. By 2007, ceilings in the facility had fallen, pipes had separated and pulled, and glass had broken, all of which were attributed to uneven settlement. The Town never issued a final certificate of occupancy. The Town's Construction Official ordered all occupants to evacuate the building on February 8, 2007. The building has been vacant and unused since that date.

Belcor initiated arbitration proceedings against the Town because the Town withheld final payment under the contract. Belcorand the Town resolved their dispute by Stipulation of Settlement dated October 12, 1999. Both the Stipulation of Settlement and the related Town of Kearny Resolution 1999(R)–338 identified the date of substantial completion of the facility as February 1, 1996.

II.

On April 7, 2006, the Town filed an action in the Law Division, asserting negligence and breach of contract claims against Brandt–Kuybida and two of its principals, Louis Brandt and Michael Kuybida, and another architect, Robert Strebi (the Brandt–Kuybida defendants); negligence claims against Harrison–Hamnett and its principal, John N. Harrison (the Harrison–Hamnett defendants); and negligence and breach of contract claims against SESI and one of its engineers, William St. Pierre (the SESI defendants). The Brandt–Kuybida defendants pled an affirmative defense based upon their right to seek apportionment of fault to all other parties who contributed to the incident. They also asserted a cross-claim against their codefendants, premised upon common-law indemnification and contribution pursuant to the Comparative Negligence Act and the Joint Tortfeasors Contribution Law.

The Brandt–Kuybida defendants filed a motion for summary judgment. They asserted, among other theories, that the statute of repose, N.J.S.A. 2A:14–1.1(a), barred the Town's claims.¹ The trial court denied the Brandt–Kuybida defendants' summary judgment motion, concluding that the ten-year period for purposes of the statute of repose began on the date of substantial...