Opinion
22-P-426
01-19-2023
UNIVERSITY OF MASSACHUSETTS BUILDING AUTHORITY & another[1] v. ADAMS PLUMBING & HEATING, INC., & others.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
The plaintiffs, University of Massachusetts Building Authority and University of Massachusetts Amherst (interchangeably, UMass), appeal from a summary judgment dismissing their complaint against the defendants, numerous contractors and subcontractors who worked on the renovation of a UMass dining hall, as barred by the statute of repose. UMass asserted claims for negligence, breach of contract, and indemnification. UMass acknowledges that the statute of repose bars its claims for negligence but argues that its claims for breach of contract and indemnification were erroneously dismissed. Because we conclude that UMass's claims for breach of contract and indemnification sounded in negligence, we affirm.
We summarize the background of this case as set forth in the order on the defendants' motions for summary judgment, "supplemented by other uncontroverted facts in the summary judgment record and viewing the evidence in the light most favorable to [UMass]" (quotation and citations omitted). Williams v. Board of Appeals of Norwell, 490 Mass. 684, 685 (2022) .
In 2013, UMass sought to renovate the Blue Wall, one of its dining halls. In 2013 and 2014, UMass entered into contracts with the following defendants: Leftfield, LLC (Leftfield), to serve as the project manager; Bruner/Cott & Associates, Inc. (Bruner/Cott), to provide architectural and engineering services; Lee Kennedy Company, Inc. (Lee Kennedy), to serve as the general contractor; and WSP Group and WSP USA Buildings, Inc. (collectively, WSP), to provide engineering and commissioning agent services, including designing and commissioning the heating, cooling, and ventilation systems. Also in 2013 and 2014, various subcontracts were entered into with the following defendants: Garcia, Galuska & DeSousa, Inc. (Garcia), to provide mechanical, electrical, and plumbing services; Tekon - Technical Consultants, Inc. (Tekon), to perform testing, adjusting, and balancing work; Adams Plumbing & Heating, Inc. (Adams), to fabricate and install the ductwork for the kitchen's exhaust system; and Halton Group Americas, Inc. (Halton), to install the ventilation system and associated sensor and control systems.
UMass's appeal also presents the question whether UMass was an intended third-party beneficiary of the subcontractors' contracts. Where we conclude that UMass's claims were properly dismissed as barred by the statute of repose, we need not and decline to address the question.
On September 2, 2014, the dining hall opened for use. In the spring of 2018, UMass found that the ductwork of the kitchen's exhaust system had collapsed. The exhaust system also exhibited other deficiencies, including seam leaks, joint separations, duct panel damage, and irregularities with control systems. On December 1, 2020, UMass commenced this action, bringing claims for negligence, breach of contract, and indemnification.
Discussion.
1. Statute of repose.
"A statute of repose eliminates a cause of action at a specified time, regardless of whether an injury has occurred or a cause of action has accrued as of that date." Bridgwood v. A.J. Wood Constr., Inc., 480 Mass. 349, 352 (2018). See Moran v. Benson, 100 Mass.App.Ct. 744, 746 (2022). As a statute of repose contained in G. L. c. 260, § 2B, places an absolute six-year time limitation on "[a]ctions of tort for damages arising out of any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property." While the statute applies specifically to actions of tort, a plaintiff may not escape the consequences of the statute by recasting a negligence claim in the form of another claim. See McDonough v. Marr Scaffolding Co., 412 Mass. 636, 642 (1992); Anthony's Pier Four, Inc. v. Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818, 823
(1986). In determining whether the statute of repose applies, we look to the nature -- or "gist" -- of the claim. See Bridgwood, supra at 354, and cases cited. On appeal, there is no dispute regarding the following: (1) the statute of repose's six-year time limitation began to run when the dining hall was opened for use on September 2, 2014, (2) UMass commenced this action just outside that time limitation on December 1, 2020, and (3) the statute of repose bars UMass's claims for negligence. The issue, instead, is whether UMass's claims for breach of contract and indemnification were properly dismissed as barred by the statute of repose on the basis that they sounded in negligence.
UMass asserted breach of contract claims against all of the defendants.
UMass claims that the defendants committed breaches of express warranties, that claims for breach of express warranty are contractual in nature, and that UMass's claims for breach of contract therefore survived the bar imposed by the statute of repose. While we agree that claims for breach of express warranty are not barred by the statute of repose, UMass's argument falters where UMass has not identified any express warranties that were breached.
It has long been held that claims for breach of express warranty are not barred by the statute of repose because they require proof that the defendant guaranteed a heightened level of workmanship, and in that way differ from claims for negligence. See Klein v. Catalano, 386 Mass. 701, 720 (1982). See also Anthony's Pier Four, Inc., 396 Mass. at 823. A defendant may guarantee a heightened level of workmanship by promising a specific result, see Anthony's Pier Four, Inc., supra; Coca-Cola Bottling Co. of Cape Cod v. Weston & Sampson Eng'rs, Inc., 45 Mass.App.Ct. 120, 128-129 (1998), or by agreeing to comply with technical specifications in a written contract, see Melrose Hous. Auth. v. New Hampshire Ins. Co., 24 Mass.App.Ct. 207, 211 n.5 (1987), S_.C., 402 Mass. 27 (1988). In either scenario, the plaintiff may not rely on general contract provisions that impose the implied duty of reasonable care, as such provisions do not guarantee a heightened level of workmanship. See id.
In Melrose Hous. Auth., 24 Mass. App Ct. at 211 n.5, problems with a housing project were caused by the omission of angle irons and flashing, along with improperly installed bolts and improperly mixed mortar. We held that the omission of angle irons and flashing appeared to involve violations of technical specifications but that the other problems amounted to shoddy work in violation of the implied duty of reasonable care.
UMass claims both that the defendants promised specific results and that the defendants agreed to comply with technical specifications in their written contracts. With respect to the technical specifications, UMass's argument is unavailing because UMass has not identified with specificity any problems that involved violations of technical specifications versus problems that amounted to shoddy work in violation of the implied duty of reasonable care. See Melrose Hous. Auth., 24 Mass.App.Ct. at 211 n.5. Accordingly, we focus on whether any of the defendants promised specific results.
For example, UMass notes that the technical specifications required that the ventilation system be primarily controlled by a Halton Marvel system but provides no further information regarding what that meant, whether the defendants failed to use a Halton Marvel system, or what, if any, specific problems arose from deficiencies with respect to the Halton Marvel system. While UMass maintains that we should remand for further discovery on this and related points, we are not persuaded where this case turns on questions of contract interpretation and the contracts are in the record.
UMass relies on Anthony's Pier Four, Inc., and Coca-Cola Bottling Co. of Cape Cod to argue that the following and other, similar contract provisions were promises of specific results: (1) "it is the obligation of [Lee Kennedy] to provide everything necessary to produce a complete and fully operational [p]roject" and (2) Adams "shall provide a complete and operable demand ventilation kitchen exhaust system" and shall "[a]ssemble and install ductwork in accordance with recognized industry practices which will achieve [airtightness]." However, UMass reads Anthony's Pier Four, Inc., and Coca-Cola Bottling Co. of Cape Cod too broadly.
The contract provisions on which UMass relies all pertain to Lee Kennedy and Adams, but UMass argues generally that all of the defendants promised specific results.
In Anthony's Pier Four, Inc., 396 Mass. at 819-820, the plaintiff hired engineers to design a system for permanently mooring a cruise ship alongside the pier adjacent to the plaintiff's restaurant. When the plaintiff expressed concern that the mooring system, as designed, would be adequate, the engineers allegedly assured the plaintiff that the mooring system would keep the ship moored under expected wind and tidal conditions. See J_d. at 828. Similarly, in Coca-Cola Bottling Co. of Cape Cod, 45 Mass.App.Ct. at 121-122, 129, engineers hired to design a wastewater treatment system repeatedly assured the plaintiff, who questioned whether the system would work, that the system would keep the levels of biochemical oxygen demand, suspended solids, settleable solids, waste oils, phosphorus, and coliform within specified permit levels. Each case involved an explicit promise that the system would operate so as to deliver a specific result, and those promises imposed a heightened level of workmanship.
In contrast, UMass relies on general contract provisions that set forth the nature of the work to be completed and that required nothing more than compliance with the implied duty of reasonable care. The provisions required that the ventilation system operate -- a basic contract expectation -- and did not require that the ventilation system operate so as to deliver a specific result. Contrast Anthony's Pier Four, Inc., 396 Mass. at 823 (promise that mooring system would not just operate but would withstand expected wind and tidal conditions); Coca-Cola Bottling Co. of Cape Cod, 45 Mass.App.Ct. at 129 (promise that wastewater treatment system would not just operate but would treat water to specified levels). The provisions also required that the ductwork be assembled and installed in accordance with recognized industry practices, which on its face required nothing more than compliance with the implied duty of reasonable care. Where UMass relies on general contract provisions that required nothing more than compliance with the implied duty of reasonable care, UMass's breach of contract claims were properly dismissed as barred by the statute of repose.
3. Indemnification. UMass also argues that its indemnification claims were contractual in nature, and that they therefore survived the bar imposed by the statute of repose. In support, UMass relies on Gomes v. Pan Am. Assocs., 406 Mass. 647, 647-648 (1990), in which the Supreme Judicial Court held that a third-party contractual indemnification claim was not barred by the statute of repose. The defendants urge us to distinguish Gomes on the basis that this case involves a first-party contractual indemnification claim. While our analysis does not turn on a distinction between first-party and third-party contractual indemnification claims, we nonetheless conclude that the gist of UMass's indemnification claims sounded in negligence.
UMass brought indemnification claims against Leftfield, Bruner/Cott, Lee Kennedy, WSP, and Tekon. We use the word "defendants" in this section to refer to the defendants against whom UMass brought indemnification claims.
The defendants also claim that, for a variety of reasons, the indemnification provisions on which UMass relies do not require the defendants to indemnify UMass for the losses at issue here. We need not and decline to address the argument.
In Gomes, 406 Mass. at 647, the plaintiff brought a negligence action against the owner of a shopping mall after falling and injuring herself on the premises, and the owner impleaded the architect who designed the mall. The owner alleged that, as a result of an indemnification provision in the architect's contract, the architect was liable for the plaintiff's injuries. See i_d. In other words, the issue was whether the indemnification provision shifted liability for the plaintiff's injuries from the owner to the architect. In that context, the gist of the claim was contractual.
Here, unlike in Gomes, there was no injury separate and distinct from the shoddy work, and the issue was whether the defendants were negligent. That is precisely the sort of claim that the statute of repose bars, whether asserted as a claim for negligence, indemnification, or something else. See Bridgwood, 480 Mass. at 353-357. We conclude that UMass may not escape the consequences of the statute of repose by recasting its negligence claims as indemnification claims.
As noted, our analysis does not turn on the distinction the defendants urge between first-party and third-party contractual indemnification claims. While the gist of UMass's indemnification claims sounded in negligence, other first-party contractual indemnification claims may not. For example, had the ventilation system caused damage to other property owned by UMass for which UMass brought a first-party contractual indemnification claim, that claim would be more like the claim in Gomes. We specifically do not address whether such a claim would be barred by the statute of repose and cite the example only to illustrate that the issue is more complex than the defendants' arguments suggest.
UMass's request for appellate attorney's fees is denied.
Judgment affirmed.
Green, C.J., Meade & Blake, JJ.
The panelists are listed in order of seniority.