John C. Abajian, M.D. and Margaret C. Abajian v. TruexCullins, Inc. and Thermal Efficiency Construction, Ltd.
No. 2016-317
Supreme Court of Vermont
2017 VT 74
January Term, 2017
Helen M. Toor, J.
NOTICE: This opinion is subject to motions for reargument under
On Appeal from Superior Court, Chittenden Unit, Civil Division
David Bond of Strouse & Bond, PLLC, Burlington, for Plaintiffs-Appellants.
Evan A. Foxx and Christopher D. Ekman of Heilmann, Ekman, Cooley & Gagnon, Burlington, for Defendant-Appellee TruexCullins, Inc.
Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Defendant-Appellee Thermal Efficiency Construction, Ltd.
PRESENT: Reiber, C.J., Dooley,1 Skoglund, Robinson and Eaton, JJ.
¶ 1. EATON, J. Plaintiffs
¶ 2. The following facts are undisputed.2 In 2001, plaintiffs Margaret and John Abajian
¶ 3. Plaintiffs had experienced problems with ice damming on their old roof, which was shingled. Defendants recommended that plaintiffs install a metal roof to alleviate the problem.3 Plaintiffs accepted the suggestion, hoping that the metal roof would result in fewer ice dams. Mr. Abajian4 testified in his deposition that he “thought that the metal roof was going to eliminаte” the ice damming.
¶ 4. Very soon after the new roof was complete, plaintiffs noticed that ice dams were continuing to occur at the eaves and that the problem was worse than before. Plaintiff John Abajian called third-party defendant Murphy‘s to shovel the roof shortly after it was installed. Mr. Abajian also hired a different company to install snоw guards on the roof to prevent snow from sliding down the roof toward the eaves. It was Mr. Abajian‘s idea to install the snow guards; he did not discuss this idea with defendants. In 2004, Mr. Abajian had the snow guard installer return to move the guards higher up the roof because he thought they had been installed too low. Mrs. Abajian testified that the snow guards made the ice damming worse.
¶ 5. During the winter of 2002-2003, water lеaked through the roof and caused damage to the interior of plaintiffs’ home. Plaintiffs’ master bedroom and bathroom, office, dining room, living room, and kitchen were damaged. According to Mrs. Abajian, the walls “bubbled up, and everything peeled off.” Although plaintiffs had experienced ice dams on the roof since the 1970s, the leaking was unprecedentеd, according to Mr. Abajian.5 Plaintiffs filed an insurance claim to cover the cost of repainting.6
¶ 6. Plaintiffs believed the damage they experienced in 2002 and 2003 was due to ice damming that resulted in water coming through the roof. Mr. Abajian believed that the water was penetrating the roof “because these seams weren‘t good enough.” In the summer of 2003, Mr. Abajiаn had one of his sons apply caulking along the standing seams in an attempt to address what he thought was the source of
¶ 7. Within a few years after the metal roof was instаlled, rust spots began to appear on the roof‘s surface. Plaintiffs first noticed the rust spots in 2005. Mr. Abajian believed rust was eating through the galvanized metal from above, which struck him as unusual. He and his sons painted over the rust spots when they appeared, hoping that it would eliminate the problem. Mrs. Abajian was concerned about the rust spots on the roоf panels because “[t]hey were disintegrating, I believe. Oxidizing.” Plaintiffs painted over rust spots approximately every other year starting in 2005.
¶ 8. By 2005, Mr. Abajian understood that the metal roof was not performing consistent with his expectations. Mrs. Abajian knew in 2005 that the roof was “failing” because it was rusting.7
¶ 9. During the winter of 2012-2013, plaintiffs experienced major roof leaks that cаused damage throughout the interior of the house. They hired a builder, Polli Construction, Inc., to investigate the cause. When Polli removed the roof panels in the summer of 2014, it found widespread rusting on the underside of the panels. Portions of the underlayment were also rotted. Polli opined that the corrosion was due to inadequate insulation.
¶ 10. On November 6, 2014, plаintiffs filed a complaint alleging negligence and breach of contract against defendants TruexCullins and TEC. TEC asserted a third-party claim against Murphy‘s. Following discovery, TruexCullins and TEC moved for summary judgment on the ground that the six-year statute of limitations applicable to civil actions barred plaintiffs’ claims. The trial court granted the motion. It ruled that no reasonable jury could find that plaintiffs “were not on inquiry notice of some roof defect by 2005,” and therefore plaintiffs’ action was untimely.
¶ 11. We review summary judgment rulings de novo, using the same standard as the trial court. Gallipo v. City of Rutland, 2005 VT 83, ¶ 13, 178 Vt. 244, 882 A.2d 1177. We will affirm if, “viewing the evidence in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Glassford v. Dufresne & Assocs., P.C., 2015 VT 77, ¶ 10, 199 Vt. 422, 124 A.3d 822 (quotation omitted);
¶ 12. A civil action must “be commenced within six years after the cause of action accrues.”
¶ 13. Plaintiffs contend that the issue of when their claims accrued was a question of fact that wаs for the jury rather than the trial court to decide. They argue that they do not have any expertise in roofing design or construction and thus had no way of knowing that the roof was defective until Polli removed the roof panels in 2014 and discovered the corrosion underneath. According to plaintiffs, there was nothing to put them on inquiry notice regarding the condition of the roof until they experienced major leaks during the winter of 2012-13.
¶ 14. Plaintiffs are correct that the determination of when a claim accrues is usually reserved for the trier of fact. Towns, 168 Vt. at 454, 724 A.2d at 1025. However, “it is appropriate for a court to determine the issue when there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmоving party on that issue.” Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, ¶ 48, 186 Vt. 396, 987 A.2d 960. This is such a case.
¶ 15. The undisputed facts show that plaintiffs’ brand-new roof began to leak almost immediately after it was installed, resulting in such extensive interior damage that they filed an insurance claim to cover the cost of repainting. Plaintiffs had experienced ice damming before, but there is no evidence that the previous ice dams caused extensive leaking and interior water damage. They installed a metal roof in 2001-2002 with the hope that it would reduce ice damming. Plaintiffs recognized that the new roof had a problem because they attempted to address it by caulking the seams. However, they did not contact TruexCullins or TEC or anyone else to investigate the source of the problem. “New roofs do not leak; they do not require a period to ‘settle’ before they become watertight.” Bernard Schoninger Shopping Ctrs., Ltd. v. J.P.S. Elastomerics, Corp., 102 F.3d 1173, 1179 (11th Cir. 1997). In Vermont, like anywhere else, a brand-new roof is expected to keep water out of the building it covers. A reasonable homeowner who had just paid to have his or her entire roof replaced would likely investigate the condition of the roof if he or she experienced significant, unprecedented leaking.
¶ 16. Even if reasonable minds could differ as to whether the first leak was enough to put plaintiffs on notice of a roof defect, see A.J. Aberman, Inc. v. Funk Bldg. Corp., 420 A.2d 594, 601 (Pa. Super. Ct. 1980), we agree with the trial court that by 2005, plaintiffs were aware of facts sufficient tо lead any reasonable homeowner to investigate the condition of the roof. At that point, they had already experienced a major, unprecedented leak that was severe enough for them to file an insurance claim. Rust spots had begun to appear. The ice damming problem, which the metal roof was supposed to mitigate, was worse than ever. Plaintiffs themselves stated that by 2005, the roof was not living up to their expectations and was “failing.” They clearly recognized that the roof had problems because they attempted various repairs, including caulking the seams, installing snow guards, and painting the rust spots. There is no genuine dispute regarding these facts, which were sufficiеnt to place a reasonable person on notice that something was wrong with the roof. At that point, it was up to plaintiffs to exercise due diligence and investigate the cause of the problem.
¶ 18. We affirmed the trial court‘s grant of summary judgment to the defendants on the ground that the action was time-barred. Id. We rejected the plaintiff‘s argument that the statute of limitations did not begin to run until they discovered the precise cause of the injury in January 1972:
[I]t is not the actual discovery of the reason for the injury which is the criteria. . . . [D]iscovery means discovery of facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery.
Id. at 427, 365 A.2d at 511 (quotation omitted). Although we declined to determine exactly when the statute began to run, we implicitly agreed with the defendants that the latest possible date triggering the limitations period was when the roof began to leak following occupancy in September 1966.
¶ 19. As in Lench, the question here is not when plaintiffs discovered the true nature of the roof defect, but when sufficient facts existed that would have led a reasonable person to begin the investigation that would lead to the discovery. In this case, that date was 2005 at the latest. Although plaintiffs did not yet understand the precise source of the problems by then, sufficient facts existed to put them on notice that something was wrong with the roof generally, requiring further investigation. “The plaintiff need not have an airtight case before the limitations period begins to run. Flеshing out the facts will occur during investigation of the matter or during discovery after the lawsuit is filed.” Rodrigue v. VALCO Enters., Inc., 169 Vt. 539, 541, 726 A.2d 61, 63 (1999).
¶ 20. Plaintiffs contend that the ice damming, the initial leak, and the rust spots that began to appear in 2005 were minor defects that were distinguishable from the extensive corrosion discovered in 2014 and that this creates a dispute of material fact regarding the date of accrual. We disagree. Plaintiffs’ claims against defendants are based on the allegedly defective roof. Although they may not have known the extent of the defect in the roof, it was apparent by 2005 that it was defective. “The fact that further damage which plaintiff did not expect was discovered does not bring about a new cause of actiоn, it merely aggravates the original injury.” Pembee Mfg. Corp. v. Cape Fear Const. Co., 329 S.E.2d 350, 354 (N.C. 1985) (affirming summary judgment where undisputed facts showed that plaintiffs were aware of defective roof but took no legal action until statute of limitations had run).
¶ 21. The cases cited by plaintiffs to support their argument that the trial court should not have decided when their claims accrued are inapplicable here, as they involve either an incorrect application of law by a lower court or a genuine dispute as to when the plaintiffs became aware of damage that should have alerted them to problems with their roofs. See Wildridge Venture v. Ranco Roofing, Inc., 971 P.2d 282, 283 (Colo. App. 1998) (holding that issue of
¶ 22. Courts have not hesitated to grant summary judgment where the undisputed facts show that plaintiffs were aware of sufficient facts to put them on inquiry notice of a roof defect, even if they did not yet understand the full extent of the problem. See, e.g., Pembee Mfg. Corp., 329 S.E.2d at 354; see also John Q. Hammons Hotels, Inc. v. Acorn Window Sys., Inc., 394 F.3d 607, 611 (8th Cir. 2005) (affirming summary judgment because no reasonаble jury could find that owner‘s knowledge of water intrusion through windows, combined with repairs to windows, were insufficient to put owners on inquiry notice of defect in windows); Town of Mansfield v. GAF Corp., 364 N.E.2d 1292, 1295 (Mass. Ct. App. 1977) (“In this case there is no dispute that the plaintiff learned that the roof was defective no later than November or December of 1969. The fact that it did not appreciate the extent of the damage until later is immaterial.“); Day Masonry v. Indep. Sch. Dist. 347, 781 N.W.2d 321, 333-34 (Minn. 2010) (affirming summary judgment for defendant contractor under Minnesota‘s two-year statute of limitations where there was no dispute that plaintiff had knowledge of roof leaks more than two years before it filed its arbitration demand, even if plaintiff did not know full extent of injury by then); A.J. Aberman, Inc., 420 A.2d at 601 (affirming summary judgment that mall owners’ December 1973 action against contractor for failure to properly install roof was barred by Pennsylvania‘s six-year statute of limitations, where undisputed facts showed that mall owners experienced leaks in multiple locations since roof was installed in 1965, putting them on notice of defect well before December 1967).
¶ 23. In this case, there is no dispute regarding what material facts plaintiffs knew in 2005. These facts were sufficient as a matter of law for plaintiffs’ claims against defendants to accrue at that time. Therefore, the trial court did not err by deciding the issue. See Rodrigue, 169 Vt. at 541, 726 A.2d at 63. The court was correct that the statute of limitations had run before this action was filed.
Affirmed.
FOR THE COURT:
Associate Justice