Union School Dist. No. 20 v. Lench, 134-75

Decision Date17 September 1976
Docket NumberNo. 134-75,134-75
PartiesUNION SCHOOL DISTRICT NO. 20 v. Charles H. LENCH, Jr. and David M. Berg, Inc. v. TIMBER STRUCTURES, INC. and Connecticut Valley Construction co.
CourtVermont Supreme Court

Divoll & Doores, Bellows Falls, for plaintiff.

Robinson E. Keyes of Ryan, Smith & Carbine, Ltd., Rutland, for David M. Berg, Inc.

Richard H. Gregory, III, of Dinse, Allen & Erdmann, Burlington, for Connecticut Valley Const. Co.

Before BARNEY, C. J., SMITH, DALEY and LARROW, JJ., and KEYSER, J. (Ret., Specially Assigned).

LARROW, Justice.

Plaintiff School District, confronted with a new school building with a defective roof, brought suit against defendant architects Lench and David M. Berg, Inc., employed by Lench, alleging negligent design of the roof in violation of their contract for architectural services. Defendants pleaded the statute of limitations, and joined as third-party defendants Timber Structures, Inc., and Connecticut Valley Construction Co., who had constructed the building. By later motion for summary judgment under V.R.C.P. 56, supported by uncontested affidavits that the last work on design had been performed in January, 1966, the principal defendants obtained that summary judgment, along with a resulting dismissal of their third-party actions.

In the absence of findings of fact and conclusions of law, desirable though not required in this type of judgment, the salient time elements contained in the pleadings and affidavits and uncontested by the parties may be briefly summarized. The architectural contract was entered into in January, 1965. The last design work under it, checking shop drawings, was performed in January, 1966. The building was completed and occupied in September, 1966, and almost immediately the roof began to leak continuously. Unsuccessful attempts at correction were made, and in the fall of 1971 a wall cracked and bulged. Plaintiff then sought professional advice, and about January 31, 1972, 'first became aware' that the roof was latently defective due to negligent design. Suit was instituted December 8, 1972.

The parties agree, and we concur, that the applicable statute of limitations, whether the action sounds in tort or contract, is 12 V.S.A. § 511, the general statute. This requires that civil actions, except as otherwise provided, be commenced within six years after the cause of action accrues and not thereafter. The precise question before us, therefore, is whether the cause of action here accrued prior to December 8, 1966. The lower court, without specifying when it did accrue, in effect ruled that it was prior to that date. We agree, and affirm.

Appellant urges that we should overrule our holding in Murray v. Allen, 103 Vt. 373, 154 A. 678 (1931), and adopt what it terms the 'more flexible and justifiable time of discovery rule.' This, it says, would make its cause of action 'accrue' in this case in January, 1972, when, from its professional advisor, it 'first became aware' of the latently defective roof design. Defendants argue for retention of the Murray rule. They dispute any modern tendency toward the 'discovery rule' except in cases of medical malpractice. They refer to statutes in a majority of the states providing for accrual of the action against architects at a time no later than the date of building occupancy. And they point out, correctly, that of all the dates here involved as possible accrual dates, only January, 1972, when plaintiff allegedly discovered what it claims to be the real cause of its troubles, is within the six year statute. They argue, without great preference since any choice would support the ruling below, that the statute should begin to run (a) under Murray, when the last services were rendered (b) in September, 1966, when the extensive leaks appeared, giving the plaintiff notice of some defect. This, they say, would start the statute running even under the 'discovery rule.' A possible alternative, not argued, would be the date when the plans, claimed defective, were delivered to the plaintiff under its contract. Certainly for stock plans, prepared in advance of sale, no earlier date would appear equitable.

A review of Murray convinces us that we have no need to reappraise its precise holding. With a short dictum indicating the rule would also be applied to legal malpractice, it held that where a sponge was negligently left in a surgical incision, the omission to remove the sponge when the incision was closed triggered the statute, or, if there was negligence in the after treatment, the statute began to run with termination of the after treatment. Consequential damages, later accruing, were held not to give rise to any new...

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18 cases
  • In re Vasquez
    • United States
    • U.S. Bankruptcy Court — District of Vermont
    • 23 Febrero 2018
    ...discovery." Vermont Agency of Natural Resources v. Towns, 168 Vt. 449, 452, 724 A.2d 1022 (Vt. 1998) (citing Union Sch. Dist. v. Lench, 134 Vt. 424, 427, 365 A.2d 508 (Vt. 1976) ). Applying Vermont law, the Debtor's causes of action cannot be said to have accrued before March 1, 2013, the d......
  • Lamell Lumber Corp. v. Newstress Intern.
    • United States
    • Vermont Supreme Court
    • 31 Agosto 2007
    ...of limitations of § 511 to action against builder for improper "design and construction" of fireplace); Union Sch. Dist. No. 20 v. Lench, 134 Vt. 424, 424-25, 365 A.2d 508, 509 (1976) (in action for breach of contract and negligent "design" of roof by defendant architects "the applicable st......
  • Peggy Rose Revocable Trust v. Eppich
    • United States
    • Minnesota Supreme Court
    • 21 Marzo 2002
    ...by Lewis, 124 Pa.Cmwlth. 568, 557 A.2d 40, 43 (1989); Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997); Union School Dist. No. 20 v. Lench, 134 Vt. 424, 365 A.2d 508, 511 (1976). 9. In fact the arbitrator's finding in this case that Buyers, using reasonable diligence, did not discover th......
  • Fitzgerald v. Congleton
    • United States
    • Vermont Supreme Court
    • 19 Octubre 1990
    ...to a malpractice action solely on the basis of whether the action sounds in tort or contract. See, e.g., Union School Dist. No. 20 v. Lench, 134 Vt. 424, 425, 365 A.2d 508, 509 (1976) (in action against architect for negligent design of roof, Court agreed with parties that "whether the acti......
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