Congdon v. Taggart Bros., Inc.

571 A.2d 656, 153 Vt. 324, 1989 Vt. LEXIS 249

• Court: Supreme Court of Vermont
• Decided: December 15, 1989
• Docket: 88-223
• Status: Published

Opinions

Entry Order

In 1971 defendant built an addition on plaintiff’s home. In 1983, the home was consumed by fire, and plaintiff alleges that the fire was caused by improper design and construction of the fireplace located in the addition built by defendant. Plaintiff’s action against defendant for the value of the real and personal property consumed in the fire was dismissed by the trial court because it was commenced over six years after the allegedly negligent design and construction. See 12 V.S.A. § 511. In reaching its conclusion, the trial court followed Murray v. Allen, 103 Vt. 373, 154 A. 678 (1931), in holding that a cause of action “accrues” for purposes of 12 V.S.A. § 511 when the negligent act occurs and not when the consequential damages became known.

In University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354 (1989), this Court explicitly overruled the definition of “accrues” contained in Murray v. Allen for property damage cases controlled by 12 V.S.A. § 511. Instead, we adopted a discovery rule as provided for personal injury cases by Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 521-26, 496 A.2d 154, 160-61 (1985), “defining the point at which the cause of action accrues as the time of the discovery of the injury.” University of Vermont v. W.R. Grace & Co., 152 Vt. at 289, 565 A.2d at 1356. Under that rule, “the trial court must determine when plaintiff knew or reasonably ought to have known of the damage allegedly caused by defendant.” Id. at 292, 565 A.2d at 1357.

As in the W.R. Grace & Co. case, we hold that the trial court grounded its dismissal on the wrong starting point for the limitation period but do not decide whether plaintiff’s action is timely under the proper computation of the limitation period.

Reversed and remanded.