42 N.E.3d 1194
Mass. App. Ct.2016Background
- In 2005 the Downeys hired Chutehall to replace the roof and roof deck on their Beacon Hill townhouse; written contract line items identified stripping the existing roof system.
- Building code (780 C.M.R. § 1512.3) prohibits installing a new roof over more than two existing layers; Chutehall installed a new rubber membrane over the existing roof (which later proved to be four layers).
- Disputed trial facts: Christopher Downey allegedly told Chutehall there was only one existing layer and instructed Chutehall not to strip the roof or perform test cuts; jury likely credited Chutehall on fact issues.
- After an HVAC contractor cut into the roof some years later, water damage and four layers of roofing were discovered; the Downeys replaced the roof and sued Chutehall for costs, asserting a G. L. c. 93A claim based on a building-code violation under G. L. c. 142A, § 17(10).
- At trial the judge allowed evidence of Downey’s alleged directions and instructed the jury that if the code violation occurred only because the Downeys directed Chutehall to proceed, the Downeys’ waiver could defeat c. 93A liability; the jury found a code violation but that it resulted from the Downeys’ directions and assessed no damages.
- The Appeals Court reviewed whether a homeowner’s oral waiver of building-code requirements can bar contractor liability under G. L. c. 142A, § 17(10) and c. 93A, particularly where safety/public-safety concerns exist.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a homeowner's oral waiver of a building-code requirement can bar contractor liability under G. L. c. 142A, § 17(10) and c. 93A | Downeys: Oral waiver cannot defeat contractor liability for code violations that give rise to c. 93A claims, especially where safety/public-safety is implicated | Chutehall: Reliance on homeowner representations/directions (even oral) can negate knowing/intentional violation and bar recovery; jury instruction was proper | Held: Oral homeowner waiver cannot defeat contractor liability under § 17(10)/c. 93A in these circumstances; trial instructions allowing waiver as a complete defense were erroneous and require reversal |
| Whether the trial judge properly admitted evidence of homeowner's statements/instructions and submitted special verdict question on waiver | Downeys: Evidence and special verdict question should have been excluded because waiver is not a defense here | Chutehall: Evidence and question were proper to determine if violation resulted from homeowner direction | Held: Admission and instruction were erroneous because waiver cannot defeat liability on these facts; reversal required |
| Whether the jury's finding that the violation resulted from Downeys' directions precluded judgment for Downeys | Downeys: Jury finding based on erroneous instruction; proper legal standard would not allow waiver to defeat liability | Chutehall: Jury verdict stands; special verdict resolves liability | Held: Because instruction was legally incorrect, the jury's special finding cannot preclude recovery; judgment for Downeys must enter on liability and case remanded for damages |
| Whether appellate attorney's fees are recoverable if Downeys succeed on c. 93A | Downeys: Entitled to appellate fees upon successful c. 93A claim | Chutehall: Opposes fees | Held: Downeys entitled to seek appellate fees; court directed submission of fee request and response schedule |
Key Cases Cited
- Reddish v. Bowen, 66 Mass. App. Ct. 621 (2006) (discusses homeowner misinformation and contractual disclaimers in a contractor liability context)
- Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118 (1986) (limits interlocutory review of summary-judgment denials after trial)
- Canal Elec. Co. v. Westinghouse Elec. Corp., 406 Mass. 369 (1990) (statutory rights may be waived only when waiver does not frustrate public policy)
- Simas v. House of Cabinets, Inc., 53 Mass. App. Ct. 131 (2001) (G. L. c. 142A reflects legislative intent to facilitate homeowner c. 93A remedies)
- Garrity v. Conservation Commn. of Hingham, 462 Mass. 779 (2012) (waiver analysis in light of statutory purposes)
- Rollins Envtl. Servs., Inc. v. Superior Ct., 368 Mass. 174 (1975) (procedural limits on interlocutory appeals)
- Campbell v. Cape & Islands Healthcare Servs., Inc., 81 Mass. App. Ct. 252 (2012) (standard for showing the trier of fact might have reached a different result)