Opinion
C.A. No. S09C-06-035.
Date Submitted: April 4, 2011.
Date Decided: April 19, 2011.
On Defendant/Third Party Plaintiff Bunting Construction's Motion for Summary Judgment: GRANTED.
John A. Sergovic, Jr., Esquire, Sergovic Carmean, P.A., Georgetown, Delaware.
Donald L. Logan, Esquire, Logan Associates, LLC, New Castle, Delaware.
R. Montgomery Donaldson, Esquire, Lisa Zwally Brown, Esquire, Montgomery, McCracken, Walker Rhoads, LLP, Wilmington, Delaware.
Dear Counsel:
Pending before the Court is Defendant/Third Party Plaintiff Bunting Construction Corporation's Motion for Summary Judgment. For the reasons stated herein, the Motion is granted.
Factual and Procedural Background
Defendant/Third Party Plaintiff Bunting Construction Corporation ("Bunting") was the general contractor that oversaw the construction of the buildings that comprise Water's Edge Condominiums in 2000. In 2004, the Water's Edge Condominium Association ("Water's Edge") began noticing some discoloration in siding on some of the units. Water's Edge's property management company, Wilgus Associates, Inc. ("Wilgus"), contacted the manufacturer of the trim used, Georgia-Pacific Corporation ("Georgia-Pacific"), to seek recovery under Georgia-Pacific's product warranty. Georgia-Pacific denied the claim on the basis that the trim was not installed per the manufacturer's specifications. Water's Edge then retained George, Miles Buhr, LLC ("GMB") to investigate further. In the contract for services, dated April 11, 2005, a representative for GMB outlined his understanding of the facts as follows:
• The structures were built by Bunting Construction.
• Leaks are occurring in various areas.
• The siding is vinyl shingles (cedar impressions) with 15 lb. felt underlayment.
• The trim appears to be painted masonite or similar materials [sic] which is deteriorating.
• The application and flashing methods are questionable.
Contract, dated April 11, 2005 (emphasis added). The contract was signed by a representative of Wilgus, acting as an agent for Water's Edge. Agency is not disputed.
Later that same April, GMB sent a letter to Wilgus, which stated, in relevant part:
Vinyl siding, in this case Cedar Impression panels, is not a waterproof siding. It is totally dependent on the proper application of the building wrap and flashings. . . .
As a result of improper flashing applications, see the attached photographs. . . .
Photo No. 3 shows flashing failures over the ledger board and the particle board sheathing. . . .
Photo No. 4 — Note the flashing and J-Channel on top of the ledger board and the J-Channel under the ledger board. The flashings are not working. . . .
Photo No. 5 shows the deteriorated ledger presswood siding deteriorated due to improper flashing under the gutter system.
. . .
In conclusion, we recommend that all presswood trim and ledger boards be removed and replaced with solid cedar with all sides, back, edges and cuts primed before installing. All flashings should be checked and replaced, as necessary, and installed in accordance with Architectural Standards.
GMB letter to Wilgus, dated April 29, 2005 (emphasis added).
More than eighteen months later, GMB began removing the siding for exploratory purposes and concluded that the flashing has not been installed correctly. Water's Edge contacted Bunting on January 28, 2009, seeking relief. Bunting's insurance carrier denied Water's Edge's claim on April 28, 2009.
See GMB letter to Wilgus, dated November 15, 2006.
Water's Edge then filed suit against Bunting on June 25, 2009, alleging negligent construction. Bunting filed a third-party complaint against Georgia-Pacific and the subcontractor who installed the flashing, Shore Siding, Inc. Bunting moved for summary judgment based on the applicable statute of limitations and a hearing was held on the motion on February 4, 2011. The Court permitted the parties to supplement their filings and reserved decision. The parties have filed supplemental briefs on the issue of timeliness and the matter is ripe for review.
Standard of Review
Summary judgment is only appropriate where, viewing the facts in the light most favorable to the non-moving party, the moving party has demonstrated that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The moving party bears the burden of establishing the non-existence of material issues of fact. Once the moving party has met its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of his or her case, summary judgment must be granted. "A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." If, however, material issues of fact exist, or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, summary judgment is inappropriate.
Dambro v. Meyer, 974 A.2d 121, 138 (Del. 2009).
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id. at 681.
Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
Id. at 59 (quoting Celotex, 477 U.S. at 322-23).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Merits
Water's Edge argues Bunting's Motion for Summary Judgment must be denied because (1) the defective flashing was inherently unknowable until GMB issued its findings on November 15, 2006, under the "time of discovery" rule; or (2) if the record is not sufficient to determine whether Water's Edge was put on notice on November 15, 2006, there is a dispute as to the material fact of what date should be used for determining the statute of limitations. In light of the evidence before the Court, Water's Edge's arguments are without merit.Generally, a negligence action where damages for personal injuries are not sought must be brought within three years. Nevertheless, it has been observed:
The statute may be tolled, however, under the "time of discovery rule," also known as the "doctrine of inherently unknowable injuries," if the cause of action is inherently unknowable and the plaintiff was blamelessly ignorant of the cause of action, or if the defendants fraudulently concealed the cause of action. For the doctrine to be applicable, a plaintiff must establish that there were no observable or objective factors to alert her of the injury and that she was blamelessly ignorant."
Lee v. Linmere Homes, Inc., 2008 WL 4444552, at * 3 (Del. Super.) (emphasis added).
Water's Edge's cause of action "did not accrue until [Water's Edge] had notice there was something wrong [with the flashing] or until, by the exercise of reasonable diligence and care, they could have discovered the defect."
Travis v. Taralia, 1986 WL 4856, at *3 (Del. Super.).
Water's Edge alleges it could not have discovered the defects in flashing installation until November of 2006. The record does not support this assertion. The Court will assume, arguendo, that knowledge of siding discoloration and concern about leakage were not enough to put Water's Edge on notice that it needed to investigate the cause of water damage, including any issues with flashing. Nevertheless, by way of Georgia-Pacific's letter dated September 2, 2004, Water's Edge possessed information concerning the role flashing plays in avoiding moisture accumulation in walls. Indeed, the text of this letter refers to the importance of properly installed flashing and the attachment to the letter lists three potential causes of leaks, with the first cause as "Improper or missing flashing." As previously noted, the contract between GMB and Water's Edge specifically identifies the flashing as an area of concern with regard to the "mess." Finally, as Bunting correctly points out, as far as notice of a problem with flashing is concerned, there is no material difference between the language of GMB's letter dated April 29, 2005, which Water's Edge argues did not put it on notice of any problem with the flashing, and the language of GMB's letter dated November 15, 2006, which Water's Edge acknowledges was sufficient to alert it to issues with the flashing. Water's Edge is arguably correct that there is a dispute as to what exact date it was on notice of problems with the flashing. Unfortunately for Water's Edge, any dispute is immaterial because the Court concludes, as a matter of law, Water's Edge was on notice on April 29, 2005, at the latest. Water's Edge's complaint was filed more than three years after that date and, as such, its claim is barred by the applicable statute of limitations.
Attachment to Georgia-Pacific letter, dated September 2, 2004, at p. WE0006.
Contract, dated April 11, 2005.
Conclusion
For the reasons stated herein, Bunting's Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.