191 Conn. 150 | Conn. | 1983
In January, 1975, the plaintiffs, Henry and Louis Beckenstein (plaintiffs), filed this action against the defendants, Potter & Carrier, Inc. (Potter & Carrier), and General Aniline & Film Corporation (GAF). The plaintiffs claimed that Potter & Carrier had installed a defective roof on a manufacturing building constructed by the plaintiffs and that the materials for said roof had been manufactured by GAF. The plaintiffs have appealed the court’s decision, Alexander, J., sustaining a demurrer to two counts in their original complaint alleging a breach of implied warranty, and the trial court’s decision, Aspell, J., to direct a verdict for the defendants on the two counts in their substituted complaint. The first count of the substituted complaint alleged that Potter & Carrier had breached its contract with the plaintiffs by failing to construct the roof in a workmanlike manner. It also alleged that Potter & Carrier was the agent of GAF. The second count in the substituted complaint was based upon product liability.
In June of 1968, the plaintiffs entered into an agreement with Colt Industries, Inc. (Colt), whereby Colt conveyed a parcel of land located in the town of Rocky Hill to the plaintiffs, and the plaintiffs agreed to construct a manufacturing plant which they would then lease to Colt. In addition, Colt was given an option to repurchase both the land and the building under certain conditions. The lease between the parties contained a clause which stated, in part, that the building was to be constructed “substantially in accordance with the
The plaintiffs undertook to construct the building through a corporation which they owned, National Building Supply Company. This company acted as the “coordinator” for the project. In addition, the general superintendent
On May 29,1968, Muller entered into a contract with Potter & Carrier to construct the roof of the building for $37,000. One of the plans for the building stated that the roof was to be a “typical roof construction, twenty-year bond.” The contract entered into between Muller and Potter & Carrier called for the latter to install, inter alia, a “20 year smooth surface asbestos roof (Bonded).”
As explained by one of the plaintiffs’ witnesses, Robert Berryman, a roofing bond was something offered by the manufacturer of roofing materials, whereby, if one paid a premium, the manufacturer would agree to make any repairs on the roof during the period that the bond was in effect. There was also a dollar limit as to how much a manufacturer would be obligated to spend in making any repairs. The bond issued by GAF in this case, for example, was a twenty year bond which bound GAF to make repairs up to a sum not to exceed $8970.
There was no agreement between the plaintiffs and GAF to issue the bond covering the Colt building. Rather, the bond was issued pursuant to an agreement
Although Potter & Carrier used GAF materials in installing the roof on the Colt building, as noted previously, neither the architectural plans nor Potter & Carrier’s contract with Muller called for GAF products. Muller, in fact, testified that there were “several” different kinds of twenty year bonded roofs.
In regard to the date when Potter & Carrier installed the roof, Henry Beckenstein testified that he believed that the roof was completed prior to the end of 1968, and that Colt moved in by the end of 1968 or the beginning of 1969.
The defendants introduced two certificates of occupancy issued by the building department of the town of Rocky Hill. The first certificate was a temporary certificate and restricted Colt to installing “machinery and/or other equipment.” This certificate was dated November 12, 1968. The second certificate was dated January 24, 1969, and stated that the building was “completed.”
Finally, the plaintiffs introduced the bond issued by GAF for the building. It stated that the date of completion was March 10,1970. Henry Beckenstein testified, however, that the bond was received after the roof was completed and that March 10 was not the same date as when it was completed.
Henry Beckenstein testified that “[t]he roof started to leak almost immediately after the building was done. And they were plaguing us every time it rained.” The plaintiffs called Potter & Carrier a number of times to try and get it repaired, but “[t]he next rain we had the same calls all over again. We called [Potter & Carrier]. [They] came again. That continued and continued and continued.” Muller testified that the first winter, i.e., early 1969, after the roof was completed he went up on the roof and “saw many blisters and cracks. Two cracks, I believe. And what I saw I never seen before was that the cant [a triangle-like piece of wood that goes along the perimeter of the building] had pulled in.” Beckenstein also testified that he had a discussion with a representative from GAF, William H. Barnett, and that the “gist” of their conversation was that they “discussed the fallacies of the roof. . . . Mr. Barnett was telling us that the roof was not applied properly . . . .’’He was also on the roof when Barnett had
A meeting was finally held on November 14, 1974, at the request of the plaintiffs’ attorney to discuss the roof. At the meeting Barnett indicated that the main problem with the roof was that the insulation, which went underneath the roofing materials manufactured by GAF, was not adhered properly to the steel frame of the building.
Our disposition of the claims raised by the plaintiffs requires that we address these issues: (1) whether the court erred in directing a verdict for the defendants on the breach of contract count based upon its deter
We now turn to the statute of limitations defense that GAF raised to the plaintiffs’ breach of contract claim. General Statutes § 52-576, as it existed at the time of trial, provided in pertinent part that “[n]o action . . . upon any contract in writing, shall be brought but within six years next after the right of action accrues . . . .” In their briefs, both parties state that the date that the writ was served upon the defendants was February 4,1975. Therefore, the plaintiffs’ cause of action was barred unless it “accrued” within six years of that date, i.e., February 4,1969. See Broderick v. Jackman, 167 Conn. 96, 99, 355 A.2d 234 (1974).
Both parties also recognize that the law as to when a breach of contract action “accrues” was set out in Kennedy v. Johns-Manville Sales Corporation, 135 Conn. 176, 180, 62 A.2d 771 (1948). There we stated that “[i]n an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted.” Id. We also noted that while “the application of [this] rule may result in occasional hardship,” it is well established that ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to a fraudulent concealment of a cause of action. Kennedy v. Johns-Manville Sales Corporation, supra, 179.
The injury was inflicted in this case when Potter & Carrier completed the roof. Our review of the evidence presented at the trial as set out above establishes that
The plaintiffs claim, however, that GAF had a continuing duty in this case. They contend that pursuant to the principles set forth in Skidmore, Owings & Merrill v. Connecticut General Life Ins. Co., 25 Conn. Sup. 76, 197 A.2d 83 (1963), this continuing duty extended the period as to when the statute of limitations began to run. We find that the principles set out in that case are inapplicable to the facts presented here.
In the Skidmore, Owings & Merrill case, the court was faced with a contract for the provision of architectural services in constructing a building. As the court specifically noted, “[u]nder the agreement, [Skidmore, Owings & Merrill (Skidmore)] was given responsibility for each phase of the planning and construction . . . and was given the duty of complete supervision over the course of the ‘Work.’ ” (Emphasis added.) Id., 78. A defect arose in the heating, ventilating and air-conditioning system (HVAC), bids for which had been submitted in early 1955. The defendant occupied the building in early 1957, discovered the defect in 1960, and brought an action to arbitrate the dispute in 1962. Skidmore contended that the submission of bids in 1955, which was also when the work was done, tolled the statute. The court disagreed on the basis of its finding that, under the contract, the plaintiff remained in control of the work and had a continuing duty to condemn work it considered unfit. Id., 92-94.
In the present case, the plaintiffs contend that, pursuant to the bond it had issued for the roof, GAF had a continuing duty to repair the roof during the twenty year life of the bond. We disagree. As the plaintiffs’
The plaintiffs’ second contention in regard to the statute of limitations defense is that because Potter & Carrier and GAF “continued” to work on the roof after 1969, “the Plaintiffs should not have been required to sue GAF during the period when GAF was supposedly trying to rectify the problem in order to avoid a lawsuit.” The problem with this claim is that the plaintiffs have cited no evidence that the defendants were making the repairs “in order to avoid a lawsuit.” We note that courts are not in agreement as to whether repairs in this general type of case do toll the statute of limitations. Compare Boykins Narrow Fabrics Corporation v. Weldon Roofing & Sheet Metal, Inc., 221 Va. 81, 84-85, 266 S.E.2d 887 (1980) (repairs by roofer do not
We believe that, under the circumstances of this case, the better rule to apply is that the party trying to overcome a statute of limitations defense must, at least, allege actual reliance upon the repairs being made as the basis for not filing a lawsuit. The plaintiffs have not done so. This conclusion is guided by certain factors. First, had GAF not made any repairs on the roof, then, in all likelihood, it could have been liable on the bond. The plaintiffs point to no evidence that shows that in carrying out its repairs GAF had done anything other or different than it had undertaken to do for Potter & Carrier under the bond issued by them. For such repairs to constitute a circumstance tolling the statute would place GAF in a classic “Catch 22” position, i.e., either the statute is tolled if repairs are made or GAF is liable on the bond if repairs are not made. In addition, we have previously noted the hardship that failure to observe the statute of limitations may impose. See Kirwan v. State, 168 Conn. 498, 501, 363 A.2d 56 (1975); Kennedy v. Johns-Manville Sales Corporation, supra. In the final analysis, the policy of statutes of limitation includes promoting “ ‘repose by giving security and stability to human affairs.’ ” Much v. Sturm, Ruger & Co., 502 F. Sup. 743, 745 (D. Mont. 1980). We have also stated that “it is not the function
Finally, the plaintiffs claim that GAF should be estopped from denying that the roof was completed before February 4,1969, when the bond it issued stated that the date of completion was March 10, 1970. This claim is without merit for two reasons. First, we have already noted that the bond is issued pursuant to a completely separate agreement between Potter & Carrier and GAF. Issuing the bond is not a guarantee that the roof is not defective; rather, it obligates GAF to make certain repairs under certain circumstances. In addition, Henry Beckenstein explicitly stated that the date on the bond was incorrect. The plaintiffs, therefore, did not rely on this date in delaying the filing of this action. This factor would have been an essential element for asserting a claim of estoppel. See Zoning Commission v. Lescynski, 188 Conn. 724, 731, 453 A.2d 1144 (1982); Boykins Narrow Fabrics Corporation v. Weldon Roofing & Sheet Metals, Inc., supra.
We conclude that the trial court did not err in directing a verdict in favor of the defendants based on its determination that the breach of contract claim was barred by the statute of limitations.
The second issue presented by this appeal is whether the trial court erred in directing a verdict for the defendants on the product liability count on the ground that it was barred by the statute of limitations. The applicable statute of limitations was General Statutes
In Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 429 A.2d 486 (1980), we stated that “[w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed.” Id., 241, quoting Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957). In Giglio, we noted that the continuing defect was the defendant’s failure to give an adequate warning that a furnace it had converted in 1959 gave rise to an unreasonably dangerous condition. Giglio v. Connecticut Light & Power Co., supra, 237. Because of this continuing defect, we held that even though the furnace was converted in 1959, and the injury occurred in 1967, a suit filed in 1968 was not barred by the statute of limitations. Id., 242.
The plaintiffs’ second claim in regard to the product liability count is the suggestion that the statute was tolled by the conduct of the defendants in fraudulently concealing the fact that the plaintiffs had a potential cause of action against them. General Statutes § 52-595 provides that “[i]f any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall
In summation, although we continue to recognize that directed verdicts “are not generally favored”; Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979); Cruz v. Drezek, 175 Conn. 230, 232, 397 A.2d 1335 (1978); Mott v. Hillman, 133 Conn. 552, 555, 52 A.2d 861 (1947); and that this court must consider all the evidence in the light most favorable to the plaintiffs; Sestito v. Groton, supra; we cannot conclude that the trial court erred in directing a verdict in favor of the defendants on the two counts of the plaintiffs’ substituted complaint.
The plaintiffs’ final claim is that the trial court erred in sustaining a demurrer to the second and third counts of their original complaint. The second count alleged that GAF had breached its implied warranty that the
On appeal, the plaintiffs argue that the roofing “system” that was installed by Potter & Carrier and manufactured by GAF should be considered the sale of a product for the purpose of determining whether a warranty attached to it. They further contend that even if the warranties provided for by the UCC are inapplicable, the complaint is not limited to statutory warranties; rather, it raises an issue of warranty under Connecticut case law. See generally Cacace v. Morcaldi, supra; Milau Associates v. North Avenue Development Corporation, 42 N.Y.2d 482, 485, 368 N.E.2d 1247 (1977).
Even if we were to agree with the plaintiffs’ arguments, any error on the part of the trial court would be harmless because the claims would still be barred by the statute of limitations. Under the common law theories, the breach of warranty claims would be controlled by the statute of limitations applicable to contracts; Cacace v. Morcaldi, supra; or would be controlled by the statute of limitations applicable to tort actions. See Butova Watch Co. v. Celotex Corporation, supra, 610. We have already disposed of the contract issue.
The statute governing tort actions; General Statutes § 52-577; provides that “[n]o action founded upon a tort shall be brought but within three years from the date
Finally, General Statutes § 42a-2-725 is the applicable statute of limitations for breach of warranty claims brought under the UCC. That statute provides in part: “(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. . . . (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made . . . .” Here, the roofing “system” was tendered at the latest by the end of 1968, and suit was not brought until February 4,1975. Therefore, we cannot conclude that the trial court erred in sustaining the defendants’ demurrer.
There is no error.
In this opinion the other judges concurred.
Henry Beckenstein said that William Muller “was our general superintendent then . . . and still is.”
The lease entered into by the plaintiffs and Colt called for construction to be completed by December 31, 1968.
The defendants raise a question as to the applicability of this statute in light of the federal district court’s decision in Ferguson v. Sturm, Ruger & Co., 524 F. Sup. 1042 (D. Conn. 1981). In that case, the court found that General Statutes § 52-577a as it existed in 1976 would have been unconstitutional if the court had applied it to the facts of that case. Id., 1045-46. It did not, however, hold the statute unconstitutional. The same constitutional issues do not apply to the present case.